Doe 1 et al v. Baylor University

Filing 845

ORDER GRANTING Plaintiffs' Motion to Compel Pepper Hamilton Work Product #795 and DENYING Baylor's Motion for Leave to Amend Answer in Jane Doe 11 v. Baylor University #815 . Baylor is ORDERED to produce the Pepper Hamilton work product in accordance with the terms of this Order and shall serve on Plaintiffs the new privilege log described in the Order, no later than July 15, 2020. Signed by Judge Andrew W. Austin. (jg3)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
JANE DOE 1, ET AL.

§
§
§
§
§

v.
BAYLOR UNIVERSITY

6:16-CV-173-RP-AWA
Consolidated with
6:17-CV-228-RP-AWA
6:17-CV-236-RP-AWA

ORDER
Before the Court is Plaintiffs’ Motion to Compel Pepper Hamilton Work Product. Dkt. 795.
In what is the latest battle in the war over Pepper Hamilton’s work product, Plaintiffs ask the Court
to compel Baylor to produce all work product materials relating to the Pepper Hamilton investigation
and implementation of reforms. They argue that by putting that work product at issue in this
litigation, Baylor has waived the material’s protection from discovery. Baylor disputes it has done
any such thing (Dkt. 805), and has filed a Motion for Leave to Amend its Answer in Jane Doe 11
to remove any explicit reference to Pepper Hamilton. Dkt. 815. The parties filed responsive
briefing, and the Court held a hearing on the motions on May 5, 2020. Dkt. 837.1
I. BACKGROUND
A.

Pepper Hamilton’s Work for Baylor
The Baylor University Board of Regents engaged the Pennsylvania law firm Pepper Hamilton

LLP in August 2015, “to conduct an independent and external review of Baylor University’s
institutional responses to Title IX and related compliance issues through the lense of specific cases.”

1

In setting the hearing, the Court directed Baylor to demonstrate how it would present its defense
at trial “in a fashion that is both factually sincere and fair to the Plaintiffs’ right to question and respond to
this defense.” Dkt. 823. In addition to its statements at the hearing, Baylor submitted a list of the witnesses
it would call at trial on the topic of the investigation and reforms (Baylor’s Ex. 1, Dkt. 835), and after the
hearing Plaintiffs filed an excerpt from the deposition of Regent William K. Robbins, Jr. (Pls.’ Ex. 1, Dkt.
833).

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Dkt. 93-1 at 2-3 (Engagement Letter).2 The engagement letter said nothing about Pepper Hamilton
bring hired in relation to any litigation, anticipated or actual. Five months later, however, Baylor and
Pepper Hamilton amended their agreement to state specifically that “[i]t is the shared understanding
of Baylor University and Pepper that all material prepared and communications made by Baylor
University, Pepper, and their representatives in the course of the review are in anticipation of
litigation and are privileged work product.” Dkt. 93-2 (Addendum). Based on this, as well as on
declarations of Baylor’s general counsel and members of the Board of Regents, the Court concluded
in 2017 that Baylor retained Pepper Hamilton to conduct its investigation in anticipation of litigation.
Dkt. 168 at 15-16.
The investigation was extremely detailed, covering Baylor’s Title IX practices and
compliance during the three academic years immediately prior to the firm’s hiring. The investigation
was led by two Pepper Hamilton partners, Leslie Gomez and Gina Maisto Smith. Leslie Gomez
described their investigative approach as follows:
One of the things that was critically important in our investigation is that it be
extremely document intensive, document focused; and that was part of our reason for
identified employee PST files from records custodians and pulling the cell phone
records from particular records custodians, and that’s where that very large terabyte
number comes from.
In terms of the preparation for our work, prior to every interview . . . we, of course,
created investigative chronologies, interview memos for interviewing witnesses, and
then the context of that document in our interviews.
We necessarily view an investigation as iterative, that you don’t understand all of the
places it may go at the outset and so there was a continual refinement process.

2

The formal engagement letter is dated October 5, 2015. See Dkt. 93-1. But former Pepper Hamilton
partner Leslie Gomez has testified that the firm was “engaged in August 2015.” Hr’g Tr., Dkt. 672 at 40:6.

2

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It was very apparent to us from very early on that Baylor clearly wanted us to be
transparent, open, forthcoming, to call it as we see it. And my partner, Gina Maisto
Smith, and I worked very hard to maintain that reputation across the country. We are
not litigators. We don’t sue schools. We don’t defend schools. We exist in a policy,
auditing, investigative, regulatory compliance space.3
Dkt. 672 at 40-41. Pepper Hamilton made two presentations of its investigative findings to the
Baylor Board of Regents. Dkt. 672 at 41:12-13; 21-23. Gomez explained:
On May 2nd we did a very detailed presentation that included our work-product
presentation aids, our draft findings and our draft recommendations and draft
chronology. And that chronology included tabs and links to documents for us to do
about a ten-hour presentation to the board. And that was a subset of the Board’s.
Following that, on May 11th and May 12th, we came to Baylor and we presented our
findings of fact and our recommendations. That was done with the presentation aid
of a PowerPoint that included reference to documents. All of those documents that
we relied on underlying have been provided and produced as the raw data that we
collected.
Dkt. No. 672 at 41-42. It is not clear from the record how the later presentation differed from the
first presentation on May 2, or if the Board members who viewed the first presentation provided any
direction to Pepper Hamilton for the second presentation.
Later that month, Baylor published two documents summarizing Pepper Hamilton’s
investigative findings and recommendations. First, on May 26, 2016, Baylor published a thirteenpage summary of the investigation and its conclusions entitled “Findings of Fact,” which described

3

As noted earlier, though Baylor’s original engagement letter with Pepper Hamilton said nothing
about litigation, five months into Pepper Hamilton’s work the parties amended the engagement letter to
explicitly state that their “shared understanding” was that everything Pepper Hamilton was doing was in
anticipation of litigation. Gomez’s 2019 testimony undercuts the statement inserted into the amended
engagement letter in 2016. The fact that she and Smith “work very hard” to maintain a reputation for
transparency, and doggedly avoid getting engaged in litigation, operating solely in a “policy, auditing,
investigative, regulatory compliance space,” supports the arguments Plaintiffs originally made in 2017 when
they sought production of this material. But the parties have not re-urged the question of whether the
investigation and implementation were conducted in anticipation of litigation, nor will the Court re-visit it
here.

3

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findings based on “a high-level audit of all reports of sexual harassment or violence for three
academic years from 2012-2013 through 2014-2015.” Dkt. 93-3 at 1. Second, Baylor published a
list of 105 recommendations—on Pepper Hamilton letterhead—titled “Baylor University Report of
External and Independent Review Recommendations.” Dkt. 93-4.4
After Pepper Hamilton’s presentation to the Regents, the Baylor administration classified
Pepper Hamilton’s 105 recommendations as “mandates” and created a Sexual Assault Task Force.
Dkt. 805 at 2; Holmes Decl., Dkt. 805-1. On November 3, 2017, Baylor published a 755-page
External Report on the Completion of the 105 Recommendations. Dkt. 617-2.5 It was written by
Gomez and Smith, who began implementation of the 105 recommendations while they were still
partners at Pepper Hamilton and continued to do so when they left to join the law firm Cozen
O’Connor in February 2017. Id. at 7 n.1. The 2017 External Report was therefore published under
Cozen O’Connor’s name, but refers to Pepper Hamilton’s work throughout much of the
implementation process. See id.
As has been detailed in several prior pleadings and orders, there is discussion in Pepper
Hamilton emails and billing records—not produced by Baylor until mid-2019—suggesting that
Pepper Hamilton prepared one or more documents chronicling its investigative findings, and stating
that the attorneys sent Baylor a “draft report.” See, e.g. Dkt. 618 at 8; 636 at 8 n.14. When they
became aware of these documents, Plaintiffs sought production of any “report,” regardless of its

4

Both were published on Baylor’s website. See BAYLOR UNIVERSITY BOARD OF REGENTS FINDINGS
OF FACT (May 26, 2016), available at https://www.baylor.edu/thefacts/doc.php/266596.pdf; BAYLOR
UNIVERSITY REPORT OF EXTERNAL AND INDEPENDENT REVIEW RECOMMENDATIONS (undated), available at
https://www.baylor.edu/thefacts/doc.php/266597.pdf.
5

The report was published on Baylor’s website. See EXTERNAL REPORT RE: COMPLETION OF 105
RECOMMENDATIONS (Nov. 3, 2017), available at https://www.baylor.edu/thefacts/doc.php/301337.pdf.

4

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form. See Dkt. 618 at 8; Dkt. 795 at 8. Despite the emails and billing records, Baylor and Pepper
Hamilton insisted that “[b]eyond the presentation of the findings to the Board and assisting with the
preparation of the written “Findings of Fact” [that Baylor released publicly], Pepper Hamilton did
not prepare a written narrative ‘report.’” Dkt. 622-2 at ¶ 3 (Declaration of Leslie Gomez). The
dispute regarding the phantom “report” ultimately led to Gomez appearing before the Court to
respond to these concerns. After explaining that the references in the emails and billing records
related to notes used to make the presentation, and an internal Pepper Hamilton post-representation
report, Gomez stated “there was—never has been—as far as I understand, never will be—a further
narrative written report, whatever word we want to assign it, beyond the Findings of Fact.” Dkt. 672
at 44. Following the hearing, the Court did not make specific findings on the issue, other than to
state that:
the Court asked Baylor to explain references to a report in certain billing records and
emails. At the hearing, Baylor proffered statements by a Pepper Hamilton attorney
who testified that [the references to a report] refer to internal attorney work product.
If Plaintiffs have remaining concerns about this issue, they may raise that with the
Court.
Dkt. 667 at 3 (emphasis added). Among other records, the present motion once again raises the
Plaintiffs’ request for any report Pepper Hamilton made to the Regents.
B.

This Litigation
The lead case in this lawsuit was filed in June 2016, about a month after Baylor released the

Findings of Fact. See Dkt. 1.6 After this litigation began, Plaintiffs served subpoenas on Pepper
Hamilton and moved to compel production of all materials provided to and produced by Pepper

6

Jane Doe 11 and Jane Doe 12–15 followed in 2017, and the Court consolidated the three cases for
all discovery and pre-trial proceedings on February 6, 2019. Jane Doe 11, 6:17-cv-228 (Dkt. 21).

5

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Hamilton in connection with the investigation. Dkt. 93. Baylor objected on the basis of attorneyclient privilege and work product protection. Dkt. 104.
In an Order on August 11, 2017, the Court ruled that Baylor waived its attorney-client
privilege by making repeated public disclosures regarding the Pepper Hamilton investigation, and
found that the waiver encompassed “the entire scope of the investigation, and all materials,
communications, and information provided to Pepper Hamilton as part of the investigation.” Dkt.
168 at 13-14 (reported as Doe 1 et al. v. Baylor Univ., 320 F.R.D. 430, 440 (W.D. Tex. 2017)).
Noting that it requires more to waive work product protection than the attorney-client privilege, the
Court found that Baylor had not waived its work product protection at that time because “[a]lthough
Baylor has impliedly connected the Pepper Hamilton investigation to this litigation”—for example,
by including Pepper Hamilton’s work in a summary of actions taken by the University—“[Baylor]
has not directly invoked Pepper Hamilton’s work as a defense.” Id. at 17 (see Doe 1, 320 F.R.D. at
442). The Court warned: “Should Baylor directly invoke the Pepper Hamilton investigation as part
of a substantive defense to Plaintiffs’ claims in the future, the Court will entertain a motion by
Plaintiffs re-urging waiver.” Id.
Nearly two years later, the Court found that Baylor had also waived attorney-client privilege
for the portion of Pepper Hamilton’s representation that involved the implementation of reforms.7
Dkt. 653. The Court found that when Baylor published the External Report on November 3, 2017,
Baylor waived attorney-client privilege for “the entire scope of the implementation of Pepper
Hamilton’s recommendations, and all materials, communications, and information provided to

7

Specifically, the Order resolved Pepper Hamilton’s Motion for Reconsideration, Baylor’s Motion
for a Protective Order Regarding Pepper Hamilton’s Work Separate From the Investigation, and Plaintiffs’
Amended Motion to Compel and Motion for Sanctions. Dkts. 653, 677.

6

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Pepper Hamilton as part of the implementation of the recommendations and preparation of the
755-page External Report re: Completion of 105 Recommendations.” Dkt. 653 at 21-22 (citing 2017
External Report, Dkt. 617-2). With regard to any protection for Pepper Hamilton’s work product
regarding the implementation of reforms, the Court made no finding of waiver, noting that “[n]either
party has provided any detailed briefing or evidence to assist the Court in determining what
materials . . . might be protected work product, or what work product protection Baylor might have
waived.” Id. at 22-23.8
In summary, the Court has already concluded that Baylor waived the attorney-client privilege
for both the investigation and the implementation of reforms conducted by Pepper Hamilton. See
Dkts. 168, 653. The motion before the Court seeks the production of Pepper Hamilton’s work
product for the same two matters. Dkt. 795.9 Throughout discovery, Baylor has asserted the work
product doctrine to withhold a large volume of material. Though the precise number is not available

8

The Court noted that “[t]o the extent that Baylor has ‘actually disclosed’ any documents to any
third party, including the public, in the course of preparation and publication of the 2017 External Report
(or with respect to any of the Other Matters), Baylor has waived work product privilege for those
documents.” Dkt. 653 at 23. Baylor maintains it has made no such disclosures. Dkt. 805 at 7 n.3.
9

For absolute clarity in the record, the materials at issue here concern the two aspects of Pepper
Hamilton’s work for Baylor that it designated for billing purposes as “Matter 2” and “Matter 3.” Pepper
Hamilton provided a series of legal services for Baylor and designated each with a separate matter number.
See Mot. Reconsid., Dkt. 612 at 5-6; Order, Dkt. 653 at 10-11. “Matter 1” is purely administrative and
addressed only the law firm’s internal process to register Baylor as a new client. “Matter 2” referred to the
“independent and external review” Pepper Hamilton conducted of Baylor’s Title IX practices “through the
lense of specific cases.” “Matter 3” concerned “legal advice on Title IX matters including implementation
of recommendations and Title IX policies and practices.” “Matter 4” concerned legal advice and electronic
discovery for various third party litigation and investigations, and “Matter 5” concerned legal advice and
electronic discovery for the Office for Civil Rights investigation. Id. The Plaintiffs’ motion asks the Court
to order production of “all the PH materials, except for ‘Matter 4.’” Since Plaintiffs never mention the Office
of Civil Rights investigation (Matter 5) in their briefing the Court assumes the inclusion of Matter 5 in the
motion was a typographical error. Thus, what is at issue in the motion to compel is Pepper Hamilton’s work
product as to Matters 2 and 3.

7

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from the record, Baylor has designated thousands, and perhaps tens of thousands, of documents as
Pepper Hamilton work product. Plaintiffs advise that as of February 11, 2020, Baylor’s privilege log
listed over 23,000 documents. Dkt. 795 at 11 . It is difficult for the Court to estimate what proportion
of the 23,000 documents might be withheld as Pepper Hamilton work product. On a number of
occasions in recent hearings, Plaintiffs have complained that Baylor’s privilege logs did not change
after the Court found Baylor had waived its attorney-client privilege; instead, they claim that Baylor
merely changed the designation of the basis for the claim of privilege from “attorney-client” to “work
product.” E.g., Dkt. 837 at 24. As will be discussed below, throughout this case Baylor has taken
an expansive view of what is attorney-client privileged and work product protected, and has at least
twice either “misread” orders or “accidentally” failed to produce Pepper Hamilton materials the
Court had ordered produced.
Baylor’s basic claim is, and has been, that “all of Pepper’s work (including the Investigation)
is protected as work product.” Dkt. 621 at 4. It has thus withheld Pepper Hamilton memoranda,
emails, and the presentations to the Board of Regents, contending that these contain the attorneys’
mental impressions. To the extent the documents also contain discoverable facts, Baylor claims
“Plaintiffs have or will have been provided all the underlying documents and facts.” Dkt. 805 at 2.
It is not entirely clear to the Court how Baylor defines “underlying facts,” because Baylor has
asserted, and continues to assert, work product protection for what is clearly fact work product.
Baylor argues, for example, that “Plaintiffs can ask Regents about facts of which they were aware
or on which they relied to form the basis of any of the specific findings, as long as [Plaintiffs] do not
directly ask what [facts] Pepper Hamilton attorneys presented to them as part of its presentation.”
Dkt. 805 at 10 n.6. Baylor takes the position that the facts the attorneys chose to present to Baylor
8

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or a Regent amount to the mental impression of the attorney, as it demonstrates which, of the
terrabytes of factual data Pepper Hamilton gathered in its investigation, the attorney thought was
worthy of inclusion. Plaintiffs have argued throughout discovery that this has prevented them from
questioning the Regents about the most basic facts regarding their knowledge and decision making
because the Regents relied very heavily on Pepper Hamilton for factual information. See, e.g., Dkt.
529 at 10; Dkt. 792 at 2; Dkt. 795 at 5.
C.

Plaintiffs Impacted by this Order
It is important to note before getting too far that this motion does not pertain to all fifteen of

the Doe cases, as Pepper Hamilton’s work product is not even potentially relevant to some of the
plaintiffs. Almost all of Baylor’s briefing, and much of its hearing argument, focused on the Jane
Doe 11 case. Baylor notes that Jane Doe 11 is the only plaintiff whose alleged assault occurred after
Pepper Hamilton had completed its investigation and implemented most of its reforms. See, e.g.,
Dkt. 837 at 6:11-14 (“The Jane Doe 11 case is different from other cases in that the alleged assault
took place on April the 3rd of 2017. It is the only alleged assault that is post the work that was done
by Pepper Hamilton.”). As far as it goes, that is a correct statement. But Baylor’s telescopic focus
on Jane Doe 11 appears to have caused it to lose sight of the details of the other plaintiffs’ claims.
For example, Baylor asserted at the hearing that “[t]he other women, Jane Does 1 through 10 and
12 through 15, all of those alleged rapes occurred before Pepper Hamilton was either on the scene
or before any findings at issue.” Id. at 46:6-9 (emphasis added). That is incorrect. Jane Does 3, 10,
11, 12, 14, and 15 all allege they were assaulted after August 2015, when Pepper Hamilton was
engaged.

9

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Of the fifteen claims consolidated for discovery and pre-trial proceedings, the earliest is
based on a sexual assault in September 2004 (Dkt. 56 ¶ 74) and the latest on an assault in April 2017
(Jane Doe 11, 6:19-cv-228 (Dkt. 14 at 5)). The majority of the alleged assaults on which the
Plaintiffs base their claims took place in 2012 or later.10 Though Baylor did not hire Pepper
Hamilton until August 2015, Pepper Hamilton’s investigation looked back three years, covering the
2012-2013 through 2014-2015 academic years. Dkt. 93-3 at 1. Thus, not only is it incorrect to say
that only Jane Doe 11 bases her claim on an alleged assault that took place after Pepper Hamilton
was hired, it is also incorrect to use the hiring date as a starting point for relevance purposes. For
plaintiffs whose alleged assaults occurred as far back as September 2011 or later, the investigation
may provide evidence of Baylor’s practices, policies, or customs at the time of those assaults and
during the one year period following them (the “post-reporting” period).11 So, for example, a
plaintiff allegedly assaulted in September 2011 could point to Pepper Hamilton’s findings related
to what was happening in September 2012 as evidence of Baylor’s practices at what would be the
end of her post-reporting period. This means the Pepper Hamilton materials may be relevant to all
of the plaintiffs’ claims except those of Jane Doe 2 (see Dkt. 56 ¶ 74 (alleged assault in September
2004)), Jane Doe 5 (see id. ¶ 152 (November 2005)), Jane Doe 6 (see id. ¶ 177) (during the 20072008 academic year)), and Jane Doe 7 (see id. ¶ 192 (May 2009)). For these four plaintiffs, their

10

Jane Does 1, 3, 4, 8, 9, 10, 11, 12, 13, 14, and 15 allege that they were assaulted in 2012 or later.
See Jane Doe 1–10 (Dkt. 56 ¶¶ 54, 74, 107, 124, 211, 235, 254); Jane Doe 11 (Dkt. 1 ¶ 51); Jane Doe 12–15
(Dkt. 14 ¶¶ 69, 78, 84, 96, 106-09, 136).
11

The Court assumes that the relevant post-reporting period for each plaintiff was approximately
one year from the date of the alleged assault. The Court adopted the same time period for post-reporting
claims in the recent Final Order on ESI and Custodians for the Extended ESI Period. Dkt. 819 at 5. That
assumption does not preclude the parties from arguing at trial that a post-reporting period might be different
for a particular plaintiff. See id. at 6 n.7.

10

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post-reporting periods all expired in May 2010 or earlier, well before the beginning of Pepper
Hamilton’s investigation period in September 2012. But for the remaining plaintiffs (Jane Does 1,
3, 4, and 8-15), the Pepper Hamilton materials are potentially relevant to their claims.12
II. PEPPER HAMILTON’S WORK PRODUCT
Plaintiffs argue that by relying on the materials as part of Baylor’s substantive defense in this
litigation, Baylor has waived work product protection for all Pepper Hamilton materials pertaining
to its investigation and the implementation of the reforms it recommended. Dkt. 795 at 1. As one
example of how Plaintiffs contend Baylor has put this work product at issue, they point to Baylor’s
Answer to Jane Doe 11’s complaint, which repeatedly references the Pepper Hamilton investigation
and implementation of reforms. Id. at 9 (citing Jane Doe 11, 6:17-cv-228 (Dkt. 17 at 6-8)). Baylor
raises the same defense in its Answer to Jane Does 12, 13, 14 and 15. Jane Doe 12–15,
6:17-CV-236 (Dkt. 40 at 6-7). Plaintiffs also argue that because “central fact questions for the jury
relate to the intent of Baylor and Baylor’s notice of student on student harassment,” a jury cannot
fairly evaluate Baylor’s defense if Baylor is permitted to release some information about Pepper
Hamilton’s investigation and reforms for Baylor, but withhold the rest. Id. at 8-10. Plaintiffs note

12

Though very close to what the Plaintiffs proposed in their briefing, this conclusion is slightly
broader. Plaintiffs argued that the Pepper Hamilton materials are relevant for Plaintiffs who were assaulted
during the period of the investigation and for Plaintiffs who were assaulted after the issuance of the Findings.
Dkt. 795 at 8-9. By including a period of time for each Plaintiff’s post-reporting claims, the Court’s
conclusion captures one claim that Plaintiffs’ proposal does not: the first alleged assault in Jane Doe 13’s
case. She alleges that she was sexually assaulted on three separate occasions, in April 2012, Fall 2012, and
some time before November 2014. Jane Doe 12–15 (Dkt. 14 ¶¶ 78, 84, 96; Dkt. 35 at 27). Because the first
assault took place before September 2012 (the earliest date contained within the scope of Pepper Hamilton’s
investigation), Plaintiffs’ proposal would exclude the materials being relevant to that assault. Under the
Court’s conclusion, the materials are relevant to that claim, because her post-reporting period would extend
into April 2013, when Pepper Hamilton was investigating the university’s practices. Accordingly, the Court
finds that the materials are relevant for all of the alleged assaults for Jane Does 1, 3, 4, and 8-15, without any
exceptions.

11

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that Baylor has repeatedly invoked the Pepper Hamilton investigation and implementation to limit
questioning in depositions. Dkt. 795 at 5 (citing Dkt. 529 at 2). Plaintiffs contend that, as a result,
Baylor is using the work product doctrine to block discovery and testimony on essential relevant
facts. Many Regents have testified that they relied on Pepper Hamilton for their information, yet
Baylor has objected to the discovery of any facts a Regent was told by Pepper Hamilton, claiming
such material is work product. See, e.g., Dkt. 529 at 10; 792 at 2. “Because of this shield, Plaintiffs
still have not learned the who, what, where, when, why, and how behind the Findings of [Fact] by
the Regents, because the Regents learned those facts from the PH investigation.” Dkt. 792 at 2. In
their motion to compel regarding the deposition of former Baylor Regent Phil Stewart, Plaintiffs
stated:
[W]hen Plaintiffs ask ‘who were the ‘senior administrators’ responsible for the
failure’ that a Regent found, Baylor can object that the facts and information the
Regent learned to identify that ‘senior administrator’ came from PH's work-product.
When Plaintiffs question ‘how did Baylor use the Code of Conduct to retaliate
against sexual assault victims,’ Baylor can object that Plaintiffs cannot ask that
question since the information the Regent learned to answer the question came from
PH's work-product. The same goes for any fact behind each Finding of failure—if the
Regent obtained those facts from PH, then Plaintiffs cannot ask what those facts
were.
Dkt. 792 at 2. Stewart’s deposition transcript confirms this. See Dkt. 529-2 at 89:23-91:13.
Baylor counters that it has not put any of the Pepper Hamilton work product at issue in this
case, and its assertion of the doctrine is proper:
Baylor is not relying on the investigation as a defense in any way. And while Baylor
will rely on its own implementation efforts, it is not relying and will not rely on
Pepper Hamilton’s role in the implementation or Pepper Hamilton’s ultimate
conclusion that Baylor had, in fact, successfully implemented reforms.

12

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Dkt. 805 at 2 (emphasis original). To further buttress this position, after the briefing on Plaintiffs’
motion was complete, Baylor filed a Motion for Leave to Amend its Answer in Jane Doe 11 to
remove any explicit reference to Pepper Hamilton. Dkt. 815.
A.

Legal Standard
“The scope of discovery is broad and permits the discovery of ‘any nonprivileged matter that

is relevant to any party’s claim or defense.’” Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258,
262 (5th Cir. 2011) (citing FED. R. CIV. P. 26(b)(1)). “Ordinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for trial.” FED. R.
CIV. P. 26(b)(3)(A). “The work product doctrine is not an umbrella that shades all materials prepared
by a lawyer . . . . The work product doctrine focuses only on materials assembled and brought into
being in anticipation of litigation.” United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982).
“The work-product doctrine is distinct from and broader than the attorney-client privilege.” United
States v. Nobles, 422 U.S. 225, 238 (1975) (citing Hickman v. Taylor, 329 U.S. 495 (1947)). “The
attorney-client privilege exists to protect confidential communications and to protect the
attorney-client relationship,” while “[t]he work product privilege . . . does not exist to protect a
confidential relationship but to promote the adversary system by safeguarding the fruits of an
attorney’s trial preparations from the discovery attempts of an opponent.” Shields v. Sturm, Ruger
& Co., 864 F.2d 379, 382 (5th Cir. 1989); see also In re Grand Jury Subpoena, 220 F.3d 406, 409
(5th Cir. 2000).
The work product doctrine applies to “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative.” FED. R. CIV. P.
26(b)(3)(A); Hickman v. Taylor, 329 U.S. 495, 511-12 (1947). The doctrine does not place work
13

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product outside the scope of discovery, but instead “creates a form of qualified immunity from
discovery” for materials prepared in anticipation of litigation. Chiasson v. Zapata Gulf Marine
Corp., 988 F.2d 513, 514 n.2 (5th Cir. 1993). The level of protection depends on whether the
materials constitute “opinion” work product or non-opinion, “fact” work product. In re Grand Jury
Subpoena, 870 F.3d 312, 316 (4th Cir. 2017); In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d
1235, 1240 (5th Cir. 1982). The “mental impressions, conclusions, opinions or legal theories of an
attorney” are opinion work product subject to a higher showing for production. In re Int’l Sys., 693
F.2d at 1240 (citing FED. R. CIV. P. 26(b)(3)(B)). Fact work product, on the other hand, is any
material “prepared in anticipation of litigation or for trial by or for another party or its representative”
under Rule 26(b)(3)(A) but “not the ‘mental impressions, conclusions, opinions or legal theories of
an attorney’” under subsection (b)(3)(B). In re Int’l Sys., 693 F.2d at 1240 (quoting FED. R. CIV. P.
26(b)(3)). Rule 26(b)(3) recognizes that a party may obtain non-opinion, fact work product if the
party “shows that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means.” FED. R. CIV. P. 26(b)(3)(A)(ii);
In re Int'l Sys., 693 F.2d at 1240-41. Importantly, and as discussed in detail below, while opinion
work product is afforded a higher level of protection, it is not beyond discovery, and may be waived
when a party discloses it, or places it at issue in the case.
The party seeking discovery bears the burden to demonstrate waiver of work product. In re
Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994) (citing Hickman v. Taylor, 329 U.S. 495,
512 (1947)). “What constitutes a waiver with respect to work-product materials depends, of course,
upon the circumstances.” Mir v. L-3 Commc’ns Integrated Sys., L.P., 315 F.R.D. 460, 467 (N.D.
Tex. 2016) (quoting United States v. Nobles, 422 U.S. 225, 239 n. 14 (1975)). In general, there are
14

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three distinct grounds on which a party may seek the production of work product: disclosure to a
third party, placing the material “at issue,” and “substantial need” under FED. R. CIV. P. 26(b)(3).
See, e.g., In re Itron, Inc., 883 F.3d 553, 558 (5th Cir. 2018). These often overlap in practice.13
The Fifth Circuit has not addressed the precise test for “at issue” waiver of work product, but
a consistent standard has been applied by district courts in the Circuit as well as by other Circuits.
“Like the attorney client privilege, opinion work product may be disclosed when the holder waives
the protection by placing the protected material ‘at issue’ in the litigation.” Mir, 315 F.R.D. at 470
(citation omitted); see also Feld v. Fireman’s Fund Ins. Co., 991 F. Supp. 2d 242 (D.D.C. 2013)
(“Allowing the privilege to shield documents at the heart of the proponent’s case would undermine
the adversary system, and would let the work-product privilege be used as a tool for manipulation
of the truth-seeking process.”); In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000)
(“[A] party cannot partially disclose privileged communications or affirmatively rely on privileged
communications to support its claim or defense and then shield the underlying communications from
scrutiny by the opposing party.”); Koumoulis v. Indep. Fin. Marketing Group, Inc., LPL, 295 F.R.D.
28, 40-41 (E.D.N.Y. 2013) (“Both the attorney-client privilege and work product privilege may be
waived if a party puts the privileged communications at issue by relying on it to support a claim or

13

“At issue” waiver is sometimes called “subject matter waiver” or “implied waiver,” while waiver
resulting from voluntary disclosure of privileged material is sometimes termed “express waiver.” See In re
Tron, 883 F.3d at 558 (considering waiver in the context of attorney-client privilege) (citing Bittaker v.
Woodford, 331 F.3d 715, 718–20 (9th Cir. 2003) (en banc)). “In practice, however, the two often overlap,
and it is unclear that the differing labels are of material significance.” Id.; see, e.g., S.E.C. v. Brady, 238
F.R.D. 429, 444 (N.D. Tex. 2006) (“Subject matter waiver of work product immunity occurs when it would
be inconsistent with the purposes of the work product privilege to limit the waiver to the actual documents
disclosed, for example when the facts relevant to a narrow issue are in dispute and have been disclosed in
such a way that it would be unfair to deny the other party access to other facts relevant to the same subject
matter.”) (cleaned up)).

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defense. Such a waiver may be implied in circumstances where it is called for in the interests of
fairness.”) (cleaned up).14
To place work product at issue in litigation, a party must “rely on” the work product “to
prove its claims in the case.” Windsor Securities, LLC v. Arent Fox LLP, 273 F. Supp. 3d 512,
518-19 (S.D.N.Y. 2017) (finding no waiver because plaintiff client “made clear that it does not
intend to rely on any communications with its replacement counsel in order to prove its claims in this
case”). Mere relevance is not sufficient to place work product at issue. Id. at 518 (citations omitted)
(“If the rule were otherwise, that would gut the privilege.”). A party also does not “rely on” work
product to prove its claims if it only uses the work product for the purposes of impeachment or
corroboration. Mir, 315 F.R.D. at 471-72.
Courts have held that when a party refers to work product in its pleadings it is “relying on”
work product. See, e.g., Hager v. Bluefield Regional Medical Center, Inc., 170 F.R.D. 70, 79
(D.D.C. 1997) (finding plaintiff waived work product protection for attorney opinion letters and draft
memoranda by referring to the opinion letters throughout the complaint, and it was undisputed that
one of the attorneys could be called as an expert witness). The court explained in Hager that without
discovery of the work product, the defendant would be “unable to ascertain the basis and facts upon
which the [attorney’s] opinions are based,” and this would “undoubtedly impair [the defendant’s]
14

Some courts have confused this area by incorrectly treating “substantial need” as an element of
proof for obtaining work product based on it being at issue, or having been disclosed. But at issue waiver
is a totally separate basis from “substantial need” for obtaining work product. See, e.g., Mir v. L-3 Commc’ns
Integrated Sys., L.P., 315 F.R.D. 460, 472 (N.D. Tex. 2016) (treating at-issue waiver and substantial need
as wholly separate bases for work product waiver); Feld v. Fireman’s Fund Ins. Co., 991 F. Supp. 2d 242,
254 (D.D.C. 2013) (“if the work-product protection has been waived, the moving party is entitled to
discovery of such work product, even without showing substantial need.”). Further, the adoption of Rule
26(b)(3) made clear that substantial need is an independent basis for obtaining work product, and is not part
of a claim of either waiver by disclosure or by putting the work product “at issue.” See FED. R. CIV. P.
26(b)(3).

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ability for effective cross-examination on a crucial issue.” Id. (quoting Handgards, Inc. v. Johnson
& Johnson, 413 F. Supp. 926, 930 (N.D. Cal. 1976)).
Here, the issue is raised not by what the Plaintiffs are intending to use to prove their claims,
but instead by the facts Baylor intends to rely upon to defend against those claims. In the context
of attorney-client privilege, which is instructive here, the Fifth Circuit has ruled that “[r]aising a
good-faith defense does not effect waiver when there is no assertion of reliance on the advice of
counsel.” In re Itron, 883 F.3d at 564 (citing United States v. Newell, 315 F.3d 510, 525 (5th Cir.
2002)). In that context, courts have held that waiver does not occur unless a party “‘explicitly relies’
on the existence or absence of privileged communications.” Id. (citing In re Burlington N., Inc., 822
F.2d 518, 533 (5th Cir. 1987)). The law is less clear regarding what happens when a defendant
affirmatively disclaims any advice of counsel defense, but nonetheless intends to offer evidence that
directly or indirectly implicates the work product of their attorney. That is the situation here.
While the Fifth Circuit has not addressed this question, many district courts have ruled that
a party waives work product when it asserts a claim or defense that relies on work product to prove
its intent, knowledge of the law, or the reasonableness of its conduct.15 Courts in our circuit have
found that when a party cites to an investigation “to show that it exercised reasonable care to

15

See, e.g., Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 47 (E.D.N.Y. 2013), aff’d,
29 F. Supp. 3d 142 (E.D.N.Y. 2014) (finding defendant waived work product waiver by asserting, as an
affirmative defense in its Answer “the reasonableness of their efforts to ‘prevent and correct promptly any
discriminatory behavior’ and the reasonableness of their ‘policies and procedures for investigating and
preventing discrimination’”); The Navajo Nation v. Peabody Holding Co., 255 F.R.D. 37, 44 (D.D.C. 2009)
(A party waives work product privilege when it “raises an affirmative defense that makes [its] intent and
knowledge of the law relevant.”) (citations omitted); Liberty Mut. Ins. Co. v. Tedford, 644 F. Supp. 2d 753,
764 (N.D. Miss. 2009) (finding waiver of work product where allegations in counterclaim that “put[] into
question the attorneys’ opinions and work product,” including whether the attorney’s advisement of rights
to an employee was adequate, and whether an insurance carrier relied on deficient legal services when it
allegedly mishandled insurance claim).

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promptly correct any harassing behavior,” the party waives work product “with respect to the
investigative report and any underlying documents.” Mir, 315 F.R.D. at 470-71 (citing Tedford, 644
F. Supp. 2d at 764 (finding waiver of work product where allegations in counterclaim “put into
question the attorneys’ opinions and work product”); Williams v. United States Envtl. Servs., LLC,
2016 WL 617447, at *5 (M.D. La. Feb. 16, 2016) (finding that defendant waived work product
protection by citing to sexual harassment investigation in its briefing on a motion to compel “to show
that it exercised reasonable care to promptly correct any harassing behavior” after receiving reports
of harassment, and thereby defend against plaintiff’s sexual harassment and retaliation claims);
Butler v. La. Dep’t of Pub. Safety & Corr., 2014 WL 3866100, at *5 (M.D. La. Aug. 6, 2014)
(finding, in a disability discrimination case, that defendant waived work product for an attorney
memo regarding the plaintiff’s fitness for employment where defendant voluntarily disclosed the
memo to a healthcare provider and placed the memo at issue by raising a business necessity defense
based in part on the healthcare provider’s recommendation, which may have relied on the attorney
memo).
At least one court has specifically applied this principle in a Title IX case comparable to this
one. See Doe v. USD No. 237, 2019 WL 1925107, at *7 (D. Kan. Apr. 30, 2019), affirmed, 2019
WL 2612941 (D. Kan. Jun. 26, 2019). There, the magistrate judge rejected a school district’s
argument that it had not waived work product protection for a pre-litigation investigation report
because it was not affirmatively asserting the investigation or report as a defense, and concluded that
the school district had waived work product by putting at issue the actions it took “as a result of” the
investigation. 2019 WL 1925107, at *7-8.

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B.

Plaintiffs’ Claims
All but five Plaintiffs assert two Title IX claims.16 First, they assert a claim that even before

their own reports of sexual assault, Baylor maintained discriminatory practices in handling student
reports of sexual assault—such as discouraging victims from reporting assaults and failing to
investigate claims or punish assailants. They contend that these actions amounted to a policy or
practice of intentional discrimination on the basis of gender, and substantially increased Plaintiffs’
risk of being sexually assaulted.17 Second, Plaintiffs assert that Baylor’s response to their reports
of sexual assault was deficient, and deprived them of educational opportunities and benefits on the
basis of their gender.18
To describe these briefly, a plaintiff may seek to hold a university liable for discrimination
by showing it had an “official policy” that violated Title IX. This requires proof of the existence of
a discriminatory policy or custom in much the same way that a § 1983 plaintiff demonstrates the
liability of a municipality under the Monell line of cases. See Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 290 (1998) (distinguishing claims involving an “official policy” of discrimination
from those seeking to hold an institution liable for discriminatory acts by individual employees);
Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1177 (10th Cir. 2007) (“The [Supreme] Court

16

See Jane Doe 1 et al. v. Baylor University, No. 6:16-cv-173 (W.D. Tex. Jun. 15, 2016) (“Jane Doe
1-10”) (Am. Compl., Dkt. 56), Jane Doe 11 v. Baylor University, No. 6:17-CV-228-RP (W.D. Tex. Aug. 21,
2017) (“Jane Doe 11”) (Compl., Dkt. 1), and Jane Doe 12 et al. v. Baylor University, No. 6:17-cv-236 (W.D.
Tex. Sept. 1, 2017) (“Jane Doe 12-15”) (Am. Compl., Dkt. 14). There are five plaintiffs whose postreporting claims are time-barred. See Jane Doe 1–10 (Dkt. 78) (dismissing post-reporting claims by Jane
Does 2, 5, 6, and 7 as time-barred); Jane Doe 12–15 (Dkt. 35) (dismissing Jane Doe 13’s post-reporting claim
as time-barred).
17

Throughout the case these claims have been referred to as the “heightened risk” claims.

18

These have been referred to as the “post-reporting” claims.

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did not elaborate on what it meant by ‘involve official policy,’ but the essence of the point is
suggested by its reliance in the following paragraph on the doctrine regarding the imposition of
liability on municipalities under 42 U.S.C. § 1983 for civil rights violations.”). The Tenth Circuit
explained in Simpson that “the standard [for Title IX liability] changes when the claim ‘involve[s]
official policy,’ although the underlying principle—liability only for intentional acts by the
institution itself—remains the same.” Simpson, 500 F.3d at 1178 (citing Gebser, 524 U.S. at 290).
The Plaintiffs’ post-reporting claims, on the other hand, rely on the assertion that Baylor
“itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts
of . . . harassment of which it had actual knowledge.” Davis Next Friend LaShonda D. v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 642 (1999) (citations omitted). Liability arises from “an official
decision by the [educational institution] not to remedy the violation [of Title IX].” Id. (quoting
Gebser, 524 U.S. at 290). For example, in Pederson v. Louisiana State University, the Fifth Circuit
found that LSU intentionally violated Title IX when it “ma[de] a decision not to provide equal
athletic opportunities for its female students because of paternalism and stereotypical assumptions
about their interests and abilities.” 213 F.3d 858, 880 (5th Cir. 2000).
All of which is to say that the facts that Baylor and its Board of Regents were aware of, and
the intentions of Baylor and the Board, are central liability facts under both of the Title IX theories
Plaintiffs are pursuing, which means that Pepper Hamilton’s work is potentially relevant to both the
claims raised in this case. Although Baylor has argued that evidence for post-reporting claims
should be limited to the university’s specific actions in response to each Plaintiff’s report of sexual
assault, see, e.g., Dkt. 837 at 46:23-47:3, the knowledge and policy decisions of the Regents could
provide evidence that Baylor adopted sincere and comprehensive reforms, or that any
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mismanagement of a reported sexual assault was an isolated misstep. On the other hand, the
evidence could show that Baylor’s policymakers knowingly took actions that contributed to systemic
failures in response to a Plaintiff’s later report of sexual assault.
C.

Baylor’s Prior Reliance on Pepper Hamilton’s Work
At the hearing, Baylor maintained that it will not mention Pepper Hamilton at trial and would

even file a motion in limine to prohibit all parties and witnesses from mentioning the law firm or its
work during trial proceedings. Dkt. 837 at 60:23-61:11. This is a significant departure from
Baylor’s defense strategy up until this point. For most of the four years these cases have been
pending, Baylor has repeatedly cited to the Pepper Hamilton investigation and subsequent
implementation of reforms to demonstrate that the University was not deliberately indifferent to
reports of sexual assault and did not intentionally discriminate against female students. Significant
examples come from answers filed in five of the cases, and Baylor’s motion to dismiss in Jane Doe
11’s case. Importantly, all of these pleadings were filed after Judge Pitman specifically warned
Baylor that it would risk waiving work product protection if it “directly invoke[d] the Pepper
Hamilton investigation as part of a substantive defense to Plaintiffs’ claims in the future.” Dkt. 168
at 17.
To be specific, on February 5, 2018, Baylor filed its Motion to Dismiss Jane Doe 11’s
complaint, which cited the Pepper Hamilton investigation and implementation of reforms to dispute
causation for Jane Doe 11’s claims: “the alleged assault in this case occurred in April 2017—after
the Pepper Hamilton investigation, after Baylor implemented Pepper Hamilton’s recommendations,
and after adoption of a brand new [Title IX] policy.” Jane Doe 11, 6:17-CV-228 (Dkt. 7 at 1).
Baylor continued: “Plaintiff does not allege that her alleged assailant assaulted her because of
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Baylor’s [revised Title IX] policy. In light of the Pepper Hamilton investigation and the resulting
recommendations, the extensive press coverage of Baylor’s efforts to implement the
recommendations, and the fact that sexual assault is a crime under Texas law, such an attenuated
causation allegation would not be plausible anyway.” Id. at 19.19 On October 25, 2018, Baylor filed
an Answer to Jane Does 12, 13, 14, and 15 that referred to the Pepper Hamilton investigation again.
Jane Doe 12-15, 6:17-CV-236 (Dkt. 40). In support of its statement that “Baylor did not maintain
a policy or practice that caused Plaintiffs or other female students to be sexually assaulted or that
created a substantial risk of sexual assault,” Baylor stated that “[d]uring the time that Jane Does 12,
13, 14, and 15 attended Baylor University—a period of time between 2011 and 2016—Baylor
University was actively engaged in activities aimed at reducing the risk of sexual assault and
providing resources and assistance to students who may have been assaulted.” Id. at 4. Among
these, Baylor referred to the fact that “the Board of Regents engaged a law firm to investigate the
handling of sexual assault claims during the period between 2012-2013 and 2014-2015.” Id. at 6-7.
“Although the investigation found deficiencies during the period under review, the investigation also
demonstrated that some areas of concern already had been addressed prior to the investigation.” Id.
at 7. This reference again relies on the Pepper Hamilton investigation in order to show that Baylor
was acting in a way that was non-discriminatory, i.e., even if there were deficiencies in its Title IX
practices, Baylor was working to investigate and address sexual assault issues on campus.

19

The Court denied the motion to dismiss, stating: “Baylor’s investigation and implementation of
certain reforms do not preempt Plaintiff’s claim as a matter of law. If, in fact, Baylor did take meaningful
action that brought the university into compliance with Title IX, that factual finding is for a later stage of this
case—it is not the question before the Court in a motion to dismiss.” Jane Doe 11, 6:16-cv-228 (Dkt. 14 at
18).

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On January 25, 2019, Baylor filed an Answer to Jane Doe 11’s complaint that repeatedly
references Pepper Hamilton’s investigation and reform implementation. Jane Doe 11, 6:17-cv-228
(Dkt. 17). There, Baylor states that “[d]uring and leading up to the time that Jane Doe 11 attended
Baylor, from 2014 through 2017, Baylor was actively engaged in activities aimed at reducing the risk
of sexual assault and providing resources and assistance to students who may have been assaulted.”
Id. at 4. Among these, “[i]n 2016, the Board of Regents published findings, based on an
investigation conducted by the law firm Pepper Hamilton, stating that Baylor’s Title IX compliance
efforts during the period from 2012-2015 had been slow, uncoordinated, and ultimately deficient.”
Id. at 6. “However, the investigation also demonstrated that some areas of concern had already been
addressed prior to the investigation.” Id. Baylor’s Answer continues: “Pepper Hamilton’s
investigation made 105 recommendations to improve Baylor’s Title IX efforts, which the Board
adopted in their entirety . . . . The same lawyers who conducted the Pepper Hamilton investigation
and made the 105 recommendations worked with the University to meaningfully implement the
changes.” Id. Further, Baylor states that in October 2017, “the same lawyers who made the 105
recommendations published a draft detailed report of Baylor’s improvements,” and in November
2017, the same lawyers published a “finalized” report that “confirmed that all 105 recommendations
had been implemented.” Id. at 7-8. In sum, Baylor specifically points to the Pepper Hamilton
investigation and implementation work to assert that Baylor was not deliberately indifferent or
intentionally discriminatory—rather, Baylor alleges that it was actively engaged in activities aimed
at reducing the risk of sexual assault and providing resources and assistance to students, that the
Baylor Board of Regents adopted 105 reform recommendations designed by Pepper Hamilton, that
Baylor meaningfully implemented the reforms by working with Pepper Hamilton, and that Pepper
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Hamilton confirmed to Baylor that the reforms had been implemented. Baylor’s Answer to Jane Doe
11 also refers to specific documents prepared by Pepper Hamilton: the “105 recommendations,” a
“draft report of Baylor’s improvements” in October 2017, and the “finalized” report in November
2017. Id. at 7-8. Both the 105 recommendations and the Final Report are public documents, and,
as discussed above, the Final Report was the basis of the Court’s finding that Baylor waived
attorney-client privilege for Pepper Hamilton’s implementation of Title IX reforms. It is not clear
from the record whether the draft report has ever been published or produced.20
These are just three examples drawn from Plaintiffs’ briefing and the immediate recollection
of the Court. A review of the voluminous record in these cases would likely identify more instances
where Baylor has pointed to Pepper Hamilton’s work to negate liability or support a defensive claim.
Even assuming these are Baylor’s only references in the record to Pepper Hamilton’s work, it is
difficult to take at face value the claim that “Baylor is not relying on the investigation as a defense
in any way.” See Dkt. 805 at 2.
D.

Baylor’s Current Position on Pepper Hamilton’s Work
Baylor’s position in its response to the motion to compel, which it repeated multiple times

at the hearing, is that it will not rely at trial on any of the extensive work Pepper Hamilton had done.
It also has requested leave to amend its answer in the Jane Doe 11 case, to make clear it is not relying
on Pepper Hamilton’s advice. Dkt. 815 at 2. This argument raises a series of questions—Is it
possible for Baylor to omit any reference to Pepper Hamilton in its trial presentation without (at

20

Given that the Final Report indicates that the draft report was presented to Southern Association
of Colleges and Schools Commission on Colleges (SACSCOC), disclosure to that third party waives work
product for the draft report to the extent that Baylor has asserted the privilege for that document. See Jane
Doe 11, 6:17-CV-228 (Dkt. 17-27 at 11) (“On October 2, 2017, we prepared a preliminary draft of this report
for the SACSCOC in anticipation of the special committee site visit.”).

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least) stretching the truth? And, would it be appropriate for the Court to affirmatively prevent the
Plaintiffs from mentioning Pepper Hamilton in their case in chief, or in their cross examination of
Baylor’s witnesses? Finally, even if Baylor is not explicitly raising an advice of counsel defense,
does Baylor’s proposed trial approach still implicitly rely on Pepper Hamilton’s work product?
To address these questions, the Court invited Baylor at the hearing to demonstrate its ability
to carry out its plan at trial “in a fashion that is both factually sincere and fair to the Plaintiffs’ right
to question and respond to this defense.” Dkt. 823. To begin, Baylor does not dispute that it intends
to rely on the factual findings of the investigation, and the recommended reforms, to defend itself
at trial. See Dkt. 805 at 2. At the hearing, Baylor explained that it intends to show that the University
acted reasonably and without deliberate indifference through testimony by current and former Baylor
employees, representatives of the Baylor University and Waco Police Departments, and former
students. See Baylor Ex. 1, Dkt. 835 (Proposed Witness List). Baylor repeated multiple times that
it is not asserting an advice of counsel defense. Instead, Baylor stated that it will present evidence
of “the objective verifiable actions that were taken, not that it received advice from its lawyers to
[take those actions].” Dkt. 837 at 6:6-9.
Thus, although Baylor has not pled an “advice of counsel” defense, it admits that, in an effort
to demonstrate that Plaintiffs cannot make out the elements of a Title IX claim, it will explicitly rely
on evidence that the university conducted an investigation, though performed solely by Pepper
Hamilton, and instituted reforms, albeit implemented entirely under Pepper Hamilton’s direct
supervision and guidance. But, in an effort to avoid raising an advice of counsel defense and
triggering the resulting disclosure of work product, Baylor proposes that in telling the jury this
narrative, it will simply leave out the fact that the investigation and reform work was conducted by
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Pepper Hamilton. What Baylor is proposing is that it be permitted to explicitly rely on the work and
advice of Pepper Hamilton, while leaving the Pepper Hamilton “branding” off the work. So the jury
will hear testimony that an extensive investigation into Baylor’s Title IX policies and practices
covering three academic years was conducted, and will hear that from this investigation 105
proposed reforms were developed. And Baylor will argue to the jury that this evidence rebuts the
Plaintiffs’ assertions that it failed to implement adequate Title IX policies, or intentionally adopted
policies or customs it knew were inadequate, or was deliberately indifferent to sexual assaults it was
aware of.
E.

Analysis
So where does this leave matters? Plaintiffs must demonstrate by a preponderance of the

evidence that Baylor had policies or practices regarding responding to student reports of sexual
assault that created an environment that heightened the risk of female students being assaulted, and
that it intentionally discriminated against women in the manner in which it responded to reports of
sexual assault, or that it was deliberately indifferent to those reports. It is the Plaintiffs’ burden to
demonstrate that the actions Baylor relies on—the investigation and the implementation of
reforms—are not enough to rebut the Plaintiffs’ evidence. This necessarily includes questioning the
integrity, scope and conduct of the investigation, as well as the quality of the implementation of
reforms. But to criticize the investigation, Plaintiffs must criticize the work of Pepper Hamilton.
The same is the case for the reform implementation. Trying to do so through the Baylor witnesses
would be pointless, as it would inevitably lead to those witnesses invoking Pepper Hamilton’s work.
The deposition testimony of one of the Baylor Regents lays this fact plain:
Q.

And do you view the sexual assault issues at Baylor to have been resolved?
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A.
Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.

I don’t know what you mean by resolved.
Well, the board passed a resolution in May of -You’re talking about the 105 recommendations and all that have been put into
place? Yeah.
You believe that to have been done?
Yes, sir.
Based on what knowledge?
Based upon what we’ve been assured by Pepper Hamilton and others on
behalf of the university administration itself, by Pepper Hamilton assuring us
that it’s been done and then implemented and carried out. And is being
carried out today.
And you trust those representations?
I do, yes, sir.
And you haven’t done anything to look behind them to see if they’re
accurate?
No, sir.

Dkt. 833-1 at 77:1-20.
Because Baylor cannot separate its investigation and reform efforts from Pepper Hamilton’s,
Baylor’s proposed defensive case explicitly relies on Pepper Hamilton’s work product. This
supports a finding of waiver. See In re Itron, 883 F.3d at 564 (citing In re Burlington, 822 F.2d at
533) (“Waiver does not occur unless a party “‘explicitly relies’ on the existence or absence of
privileged communications.”). The record indicates that this is not a situation where a university
conducted its own investigation and implemented its own reforms, while consulting with a law firm
for guidance. Pepper Hamilton, not Baylor, conducted the investigation, designed the reforms, and
implemented many if not most of the changes, and Baylor’s policymakers depended heavily on
Pepper Hamilton for knowledge of the relevant facts and for advice in how to respond to those facts.
Given this, it is impossible for the Court, the parties, or a jury to separate Baylor’s efforts from
Pepper Hamilton’s, much less to do as Baylor proposes, and pretend that Pepper Hamilton’s efforts
were Baylor’s.

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At least one court has confronted a similar scenario in a Title IX case. See Doe v. USD No.
237, 2019 WL 1925107, at *7, affirmed, Doe v. USD 237, 2019 WL 2612941. There, the magistrate
judge rejected a school district’s argument that it had not waived work product protection for a prelitigation investigation report because it was not affirmatively asserting the investigation or report
as a defense. The judge concluded that the school district had waived work product by putting at
issue the actions it took “as a result of” the investigation. 2019 WL 1925107, at *7-8. Specifically,
the court found the school district “[placed] the investigation, and therefore the Report, at issue by
asserting the defense that it ‘exercised reasonable care to prevent and correct promptly any sexually
harassing behavior,’ took action [against responsible parties] after the investigation, and took other
‘personnel actions,’ including by providing training, as a result of the investigation.” Id. at *7. The
court rejected the school’s claim that it did not intend to rely on the report: “[t]o the extent
Defendants argue they do not intend to affirmatively rely on the Report itself but rather the corrective
actions taken, that argument ‘misses the point.’” Id. at *7.
In affirming the magistrate judge’s order, the district court found that by relying on the
reasonableness of the corrective actions it took after the investigation, the school district implicitly
put the reasonableness of the investigation at issue and thus waived work product protection with
respect to the contents of the investigation. Doe v. USD 237, 2019 WL 2612941, *6 (D. Kan. June
26, 2019). The district court also later rejected the school district’s attempt to amend its answer to
withdraw the defense in order to preserve its work product protection. Doe v. USD No. 237, 2019
WL 3996413, at *3 (D. Kan. Aug. 23, 2019). The court found that even though the school district
“purported to withdraw” the investigation as a defense, the school continued to rely on it implicitly,
which was “manifestly unfair to Plaintiffs.” Id. at *5-6.
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The Southern District of Texas rejected a similar attempt to disclaim the advice of counsel
defense in Edwards v. KB Home, 2015 WL 4430998 (S.D. Tex. July 18, 2015). The defendant in an
FLSA action argued that it acted in good faith in its classification of employees and attempted to
avoid waiver of attorney-client privilege by asserting that it was “not relying on advice of counsel
in its defenses.” Id. at *1. The defendant proposed that witnesses would testify that they classified
employees based on their “independent judgment” of various sources, including some legal
guidance, but witnesses would not say “lawyers advised us that the employees do not qualify as
outside salespeople.” Id. at *2. The court concluded that “pars[ing] its defense to rely solely on its
own nonlawyers’ understanding of the FLSA’s outside sales exemption and thus maintain as
privileged the attorney communications on the same topic” was “drawing too fine a line.” Id.
Similarly here, Baylor is asking the court to parse its defense so that Baylor can rely on its
policymakers’ and administrators’ “independent” assessment of sexual assault problems at the
University, and their “independent” ideas for reform. Allowing Baylor to present a defense that it
conducted an investigation and implemented reforms, but omit all reference to Pepper Hamilton,
does not solve Baylor’s problem, as it still implicitly relies on Pepper Hamilton’s work product.
Indeed, doing so would be allowing Baylor to present what is, for all intents and purposes, a
narrative everyone but the jury would know to be false, as the Court has thus far seen no evidence
in the record that Baylor originated any findings or reforms without Pepper Hamilton’s assistance.
Baylor’s proposed witness list, for example, contains witnesses who “ha[ve] knowledge” of topics
such as “Title IX policies and procedures,” but includes no one who adopted those policies or
procedures. See Dkt. 835. To prove their case, the Plaintiffs must put on evidence of Baylor’s
policies, and the decisions of Baylor’s policymakers. The policymakers at Baylor are its Regents,
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and yet not a single Board member, past or present, was included on Baylor’s list of the witnesses
it proposes to call regarding the investigation and the adoption of reforms. Id.
The Edwards case out of the Southern District of Texas notes another practical consideration
in an analysis like this: “as a psychological matter, it seems very difficult, if not impossible, for a
witness to compartmentalize his reliance on what he may have independently understood regarding
the law and what he was told by attorneys.” 2015 WL 4430998 at *2.

This is more than a

theoretical problem in this case. Here, Baylor’s policymakers will inevitably rely on information
conveyed by Pepper Hamilton to explain their knowledge and decision making. The extensive
record in this case indicates that many Regents—perhaps even a majority of them—relied entirely
on Pepper Hamilton for their knowledge of relevant facts and for their ultimate policy decisions.
That is why they hired the firm. Indeed, the record indicates that Baylor’s reforms came primarily
or exclusively from Pepper Hamilton’s advice. The previously quoted excerpt from Regent William
B. Robbins, Jr.’s deposition is but one example of this. Baylor’s proposed motion in limine would
require a Regent like Mr. Robbins to alter his testimony—falsely—as Robbins cannot explain his
decision making about the implementation of reforms without reference to Pepper Hamilton.
Baylor’s attorneys may claim that they are not relying on the advice of counsel defense, but the entire
Board of Regents will likely testify that they relied on Pepper Hamilton to help them understand and
manage the situation at Baylor.21 See Makula v. Sanwa Bus. Credit Corp., 1997 WL 460935, at *3
(N.D. Ill. Aug. 8, 1997) (defendant waived privilege because, while his attorney denied that

21

To think otherwise seems naive. It is certain that the Plaintiffs will vigorously cross examine the
Regents at trial, and press them to explain why their actions were reasonable. To believe that any of the
Regents—a group comprised of lawyers, bankers, doctors, and executives—are not going to defend their
actions by pointing out that they hired and relied on Title IX legal experts is wishful thinking.

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defendant would use the advice of counsel defense, defendant was clearly attempting to use it in his
deposition).
Baylor’s motion in limine would require witnesses to testify in half truths in order to pretend
that Baylor conducted its own investigation and originated its own policy reforms. Baylor is
effectively asking its witnesses to lie. Setting aside the problem that the proposed motion in limine
would be asking the Court to permit—indeed, require—false testimony, prohibiting mention of
Pepper Hamilton would also present significant logistical challenges for trial. To start, because
Pepper Hamilton’s work is factually central to many of Baylor’s policy decisions, policing the parties
for compliance with the motion in limine would require counsel and the Court’s constant attention.
The likelihood of a violation would be high. Additionally, jury selection, which is already going to
be a challenge (due largely to Baylor’s extensive PR campaigns), would be even more difficult, as
the Court would have to select a jury that was unaware of Pepper Hamilton’s substantial work for
Baylor, while at the same time never mentioning Pepper Hamilton during the jury selection. This
would likely lead to a contaminated jury pool.
In the end, this is a classic case of a party trying to use the work product doctrine as a sword
and a shield. Baylor seeks to show that it responded properly to reports of student sexual assault and
that it adopted policy reforms by pointing to “the objective verifiable actions that were taken, not that
it received advice from its lawyers to [take those actions].” Dkt. 837 at 6:6-9. Baylor intends to rely
on the fact that it conducted an investigation and the fact that it implemented reforms. The pleadings
illustrate the centrality of Pepper Hamilton to Baylor’s response to sexual assault claims. The words
“Pepper Hamilton” have appeared hundreds, and perhaps thousands, of times in the briefing in this
case. At the same time, throughout this litigation, Baylor has doggedly opposed every request for
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discovery of any materials connected to Pepper Hamilton.22 As the Court stated in the hearing, the
reason this case is four years old is because Baylor wants to dramatically restrict the discovery of
facts in this case by restricting discovery of Pepper Hamilton’s work, but Baylor still wants to get
the benefit of relying on the investigation and reforms that Pepper Hamilton carried out. The court
in Doe v. USD rejected this same effort:
Defendants seek to use the investigation and Report to support their defense that they
took corrective action in response (i.e. that they were not deliberately indifferent) to
Plaintiffs’ complaints, while at the same time invoking the privilege to deny
Plaintiffs access to the Report to determine how Defendants’ corrective action
compares to [their attorney’s] recommendations. But this is precisely the sword and
shield approach that the courts have rejected.
Doe v. USD No. 237, 2019 WL 1925107, at *7.
Because Baylor cannot separate its investigation and reform efforts from Pepper Hamilton’s,
by relying on the investigation and reforms Baylor places Pepper Hamilton’s work product at issue,
and therefore has waived protection over that work product. Baylor is explicitly relying on the
existence of Pepper Hamilton’s work product in the form of its investigation, findings and
implementation of reforms. And Baylor has used work product as both a sword and shield by
defending itself by pointing to the investigation and reforms, and claiming they were reasonable

22

See, e.g., Baylor’s motion to prohibit discovery of Pepper Hamilton-related material from current
and former employees (Dkt. 282), which the Court granted in part (Dkt. 582); Baylor’s opposition to
production of PR materials because they referred to Pepper Hamilton’s work product (Dkt. 434), which the
Court overruled because Baylor failed to identify any plausible work product (Dkt. 616); Baylor’s opposition
to Plaintiffs’ motion to compel Pepper Hamilton materials (Dkt. 332), which resulted in three rounds of
highly contentious briefing, including Pepper Hamilton’s Motion for Reconsideration (Dkt. 612), Baylor’s
Motion for Protection Regarding All Work Separate from the Investigation (Dkt. 621), and Plaintiff’s
Amended Motion to Compel and Motion for Sanctions (Dkt. 621), two hearings, and two detailed rulings
by this Court (Dkts. 653, 667). These examples do not include the many third parties who have filed motions
to quash based in part on Baylor’s assertion of attorney-client privilege and work product arising from Pepper
Hamilton’s work.

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responses, while simultaneously restricting Plaintiffs’ discovery of the facts underlying the very same
investigation and reform efforts.
In the context of this case, this conclusion should not be controversial. The primary rationale
for granting qualified protection to attorney work product is to shield an attorney’s case planning and
strategy from his adversary in litigation. “At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which he can analyze and prepare his
client’s case.” United States v. Noble, 422 U.S. 225, 238 (1975). As the Fifth Circuit explained it,
“[t]he work product privilege . . . does not exist to protect a confidential relationship but to promote
the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery
attempts of an opponent.” Shields, 864 F.2d at 382. Determining when this protection has been
waived is for all practical purposes a balancing of the interest of promoting the adversarial system
against the interest of determining the truth in a given case. “When a party seeks a greater advantage
from its control over work-product than the law must provide to maintain a healthy adversary system,
the privilege should give way.” Pamida, Inc. v. E.S. Originals, 281 F.3d 726, 732 (8th Cir. 2002).
As has already been noted, though Baylor and Pepper Hamilton amended their engagement letter to
state that they believed Pepper Hamilton’s work was being done in anticipation of litigation, they
appear to have known from the start that Pepper Hamilton would not be defending Baylor in any of
that litigation. As Leslie Gomez stated it, she and her partner Gina Smith “are not litigators. We
don’t sue schools. We don’t defend schools. We exist in a policy, auditing, investigative, regulatory
compliance space.” Dkt. 672 at 41. Given this, ordering the production of the “policy, auditing, or
investigative” work Pepper Hamilton did for Baylor will do little to undermine the adversary system,

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since the work the firm did was only tangentially related to the defense of any litigation, and did not
involve case planning or strategy.
The Court is conscious that a finding of work product waiver has important policy
implications. Nothing in this ruling suggests that a university that hires outside counsel to
investigate and assist with Title IX compliance waives all work product protection for that work; the
waiver found here is based on the facts of this case. Accordingly, a finding of waiver based on the
narrow and unique facts of this litigation is not likely to discourage a university from relying on
counsel for their Title IX compliance efforts. Conversely, allowing Baylor to maintain work product
protection in this situation would risk enabling universities to withhold materials with potentially
embarrassing or incriminating facts, even when the university had placed them at issue, solely
because the facts were gathered by outside counsel.23
F.

Scope of the Waiver
This conclusion requires that the Court enter the fraught territory of identifying the

information made discoverable by Baylor’s waiver. This is yet one more way in which this case
stands out from others. Discovery in this case has involved hundreds of gigabytes, if not terabytes,

23

Pepper Hamilton’s work product is also arguably discoverable under Rule 26(b)(3), as the record
suggests Plaintiffs have a substantial need for it, and there is no other way for them to obtain it. See FED.
R. CIV. P. 26(b)(3). As the Court has noted in the text, the information that Baylor and the Regents were
aware of, and Baylor and the Regents’ intentions, are central liability facts under both of Plaintiffs’ Title IX
claims. The Plaintiffs have the burden of proof on these claims. As is clear from this Order, the Regents
obtained their factual information almost exclusively from Pepper Hamilton’s investigation, and in making
policy decisions they relied heavily on Pepper Hamilton as well. To have a fair chance of proving their case,
then, Plaintiffs arguably have a compelling need to obtain the Pepper Hamilton materials to demonstrate what
the Regents knew, and how they made their policy decisions. And—as discovery has
demonstrated—Plaintiffs have been unable to obtain this information even through depositions of the
Regents. Thus, even if Baylor’s reliance on the Pepper Hamilton investigation and reforms had not put the
work at issue in the case, Plaintiffs arguably would be entitled to discover the information under Rule
26(b)(3). Having said this, neither the Plaintiffs nor Baylor addressed Rule 26 and its application here, so
the Court does not reach any conclusions on this point either.

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of material, and this motion does not challenge the designation of any specific document or
documents, but rather raises a global argument that Baylor has waived work product protection as
to a whole class of documents. In nearly every one of the cases the Court has reviewed on these
issues, the universe of disputed documents was a fraction of the size at issue here, and in many cases
the Court reviewed the records in camera to identify the scope of the waiver. The Court does not
have that luxury here, as such a review is impossible given the amount of material involved. All of
which means that the most the Court can do at this point is make general pronouncements regarding
the scope of production that must follow from this order, and to give examples regarding types or
categories of documents.
The scope of an “at issue” waiver depends on the facts of the case, and what has been put “at
issue.” “[T]he scope of any waiver is defined by the context of the waiver and the prejudice to the
other party that limiting the waiver would cause.” McGrath v. Nassau Cty. Health Care Corp., 204
F.R.D. 240, 243 (E.D.N.Y. 2001). Some courts have limited the scope of a waiver to the portion or
category of material that a party would offer in evidence. See Nobles, 422 U.S. at 240-41 (finding
no abuse of discretion where court found waiver of “only the portion of the report that related to the
testimony the investigator would offer.”). Others have found a broader waiver, based on what the
discovering party fairly needs to assess and challenge the veracity of what the producing party
intends to offer at trial. Grigson v. Farmers Grp., Inc., 2019 WL 3781439, at *3 (W.D. Tex. Aug.
12, 2019) (finding waiver of work product for all insurance rate models prepared for litigation where
defendant produced and relied on some of the rate models to attempt to show that plaintiffs were not
damaged). Whether that is only part of the attorney’s materials underlying its communications to
their client, or all of it, depends on the case. See, e.g., Angelone v. Xerox Corp., 2011 WL 4473534,
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at *2-3 (W.D.N.Y. Sept. 26, 2011) (“the clear majority view is that when a . . . defendant
affirmatively invokes a . . . defense that is premised, in whole in or part, on the results of an internal
investigation, the defendant waives the attorney-client privilege and work product protections for
not only the report itself, but for all documents, witness interviews, notes and memoranda created
as part of and in furtherance of the investigation.”).
Importantly, an “at issue” waiver of work product is not confined to fact work product.
Unlike when a party obtains work product based on a substantial need, when disclosure is ordered
because the work product has been put “at issue,” the waiver applies to everything that has been put
“at issue,” whether they be facts or opinions. “Like the attorney client privilege, opinion work
product may be disclosed when the holder waives the protection by placing the protected material
‘at issue’ in the litigation.” Mir, 315 F.R.D. at 470. See also RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 92(1)(a) (2000) (“[w]ork-product immunity is waived for any relevant
material”) (emphasis added); In re Sealed Case, 676 F.2d 793, 811 (D.C. Cir. 1982) (noting that
opinion work product “need not be produced unless the ... implied waiver doctrine[ ] appl[ies].”);
McGrath, 204 F.R.D. at 240 (“Parties may waive any work product protection by putting the
privileged information at issue.”). Thus, in Angelone v. Xerox the court found that by putting its
investigation and remedial efforts at issue, the defendant waived work product protection for “not
only the report itself, but for all documents, witness interviews, notes and memoranda created as part
of and in furtherance of the investigation.” 2011 WL 4473534, at *2.
Baylor’s defense is founded on the facts and advice it and its Regents received from Pepper
Hamilton. For a jury to decide whether Baylor’s actions were reasonable, the jury has to know the
facts and advice Baylor relied on, so it can determine whether Baylor’s reliance on those facts and
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advice was reasonable. This is no different than the situation created when a defendant explicitly
raises an advice of counsel defense, where the defendant is required to produce the work product
demonstrating what the attorney’s advice was. See, e.g., Simmons, Inc. v. Bombardier, Inc., 221
F.R.D. 4, 9-10 (D.D.C. 2004). As one court has noted,
It would be patently unfair for a party to assert that they relied upon the advice of
counsel, yet deprive the opponent of the opportunity to understand why the advice
was given, what other alternatives were looked at, why certain advice was rejected,
and how the advice was interrelated to other business decisions. Plaintiffs are entitled
to understand and ask questions about the validity of counsel’s advice, and
Defendants may not use the assertion of the privilege both “as a sword and a shield.”
In re Fresh & Process Potatoes Antitrust Litig., 2014 WL 1413676, at *6 (D. Idaho Apr. 11, 2014)
(citation omitted).
Similarly, several courts have noted that in employment cases, where the employer defends
itself by relying upon an investigation to demonstrate its response to the plaintiff’s allegations was
reasonable, “the adequacy of the employer’s investigation becomes critical to the issue of liability.”
E.g., Musa-Muaremi v. Florists’ Transworld Delivery, Inc., 270 F.R.D. 312, 319 (N.D. Ill. 2010).
Further, where the employer relies on remedial actions it took as a result of the investigation, “the
advice it received and whether it followed that advice is in issue.” Pray v. New York City Ballet Co.,
1997 WL 266980, at *3, n.4 (S.D.N.Y. May 19, 1997) (emphasis added). In reaching this
conclusion, the court in Pray rejected the employer’s argument that only the factual substance of the
investigation was discoverable. In other words, where an employer asserts as a defense remedial
actions based on the results of an investigation and the recommendations of its attorney, the waiver
pertains to all work product—fact or opinion. So the waiver here is not confined to facts.
What all of this means in this case is that Plaintiffs are entitled to discover the information
that Pepper Hamilton conveyed to the Regents or other decision makers regarding (1) Pepper
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Hamilton’s investigation into Baylor’s handling of sexual assault reports between 2012-2015, (2) its
recommended reforms, and (3) the implementation of those reforms. Doe v. USD No. 237, 2019 WL
1925107, at *7 (finding that plaintiffs were entitled to “all documents reflecting the School District’s
investigation into their complaints and its remedial response, not only the documents Defendants
think support their cause.”); Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1096, 1099 (D. N.J.
1996) (granting discovery of all investigation documents, including the attorney’s interviews and
reporting of those interviews). And where there is no written record of communications from Pepper
Hamilton on these topics, then any other documentary evidence of what was conveyed is
discoverable.24
But the waiver extends beyond just the facts and advice Baylor received from Pepper
Hamilton. The scope of an “at issue” waiver extends also to the material on that subject matter
necessary to litigate the issue fairly. One of the primary questions the jury is going to decide in this
case is whether Baylor’s actions regarding student reports of sexual assault were reasonable.
Because Baylor’s actions were based so heavily on Pepper Hamilton’s work, to fairly litigate the
reasonableness of Baylor’s actions, Plaintiffs need the material underpinning Pepper Hamilton’s
work. As a court explained in another Title IX case, because the defendant placed its investigation
and remedial actions at issue, the underlying work product was discoverable because it was “likely
to speak directly to whether [the defendants] had actual knowledge of all of the circumstances

24

Rule 26 refers to work product as “documents and tangible things.” FED. R. CIV. P. 26(b)(3). But
it is clear that work product also includes information that has not been reduced to writing. For example,
Federal Rule of Evidence 502 defines work product to include “tangible material (or its intangible
equivalent).” FED. R. EVID. 502(g)(2). And the case that first bestowed protection on work product
specifically recognized that “recollections” were encompassed within the protection. Hickman v. Taylor,
329 U.S. 495, 510 (1947). Thus, there appears to be universal agreement that Hickman makes it clear that
work product includes intangible material, such as conversations. See, e.g. In re Cendant Corp. Sec. Litig.,
343 F.3d 658, 662 (3rd. Cir. 2003).

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surrounding the allegations and whether their response to such allegations was ‘clearly
unreasonable,’ the two key elements in a Title IX claim.” Chivers v. Cent. Noble Cmty. Sch., 2005
WL 6567356, at *4 (N.D. Ind. Aug. 4, 2005). This means that documents setting out the factual
basis for Pepper Hamilton’s conclusions and recommendations are discoverable. Thus, if witness
interviews were recorded, the recordings are discoverable. If written reports or summaries of witness
interviews were created and do not contain attorney comment, they are discoverable.25 If reports
contain attorney commentary they are discoverable, with the attorney commentary redacted.
Likewise, records that cast light on the independence and integrity of the investigation and
recommendations are discoverable. So any documents or information indicating attempts by Baylor
to influence Pepper Hamilton’s work, or casting any doubt on its independence are discoverable.
This could include things such as the drafts of findings, so that Plaintiffs can see if changes were
made based on input from Baylor. See McGrath, 204 F.R.D. at 246 (granting discovery of outside
attorney’s “incomplete report to [defendant], her handwritten investigative notes and any sections
of her reports that were deleted or redacted”). It would also encompass emails, memos or other
records of any communications between any Regent or Baylor representative on the one hand and
a Pepper Hamilton attorney on the other (which frankly should already have been produced based
on the Court’s finding that Baylor had waived its attorney-client privilege). Likewise with the
implementation of reforms. Materials that summarize the implementation work, or document what
Pepper Hamilton encountered doing that work, are discoverable. Records indicating the facts that
formed the basis for the implementation report are also discoverable.

25

As noted later, outlines or preparatory notes for interviews are not discoverable.

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And though the waiver is not confined to fact work product, fact work product remains
discoverable. Baylor’s position to date has been that its discovery responses have been faithful to
the settled principle that “work product immunity protects only the documents themselves and not
the underlying facts,” In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir.
1982), because “Plaintiffs either have or will have been provided all the underlying documents and
facts.” Dkt. 805 at 2 (emphasis original). It is important to understand exactly what Baylor means
by this. As Leslie Gomez explained, and Baylor has told the Court numerous times, at the outset of
its investigation, Pepper Hamilton gathered a huge amount of data, including a large volume of ESI.
Dkt. 672 at 4 (Dunnam, summarizing Baylor’s public and in-court statements on quantity of data
gathered, which range from 27 terabytes to 280 gigabytes); Id. at 40 (Gomez, referring to “terabytes”
and describing the types of information gathered). But those are not actually the facts on which
Pepper Hamilton based its advice. Pepper Hamilton engaged an ESI consultant, and used search
terms to identify which of the millions of documents it had assembled actually had something to do
with the matters it was investigating. Unsurprisingly, a huge amount of the raw data was completely
irrelevant to, and played no part in, Pepper Hamilton’s investigation or recommendations. Yet
Baylor has taken the position that it has not shielded the “underlying facts” from discovery because
it has included all of the Pepper Hamilton raw data in the ESI it has allowed Plaintiffs to run search
terms against. But this is disingenuous, because the majority of the raw data was never even looked
at by Pepper Hamilton. Through this approach Baylor has been able to hide the ball, as it has refused
to disclose to Plaintiffs what search terms Pepper Hamilton used, or the documents Pepper Hamilton
culled out of the raw data—the documents Pepper Hamilton actually relied on in its investigation.
Because Baylor has placed the investigation and reform work at issue in this case, Plaintiffs are

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entitled to know the search terms Pepper Hamilton used and to have access to the smaller universe
of factual data that Pepper Hamilton actually based its investigation and recommendations on.
To give another example, these conclusions make any materials documenting Pepper
Hamilton’s presentation to the Board of Regents on May 2, 11 and 12, 2015, discoverable. Leslie
Gomez, one of the attorneys who led the investigation, provided the Court a helpful description of
these presentations, and some of the underlying work product that is now discoverable. As related
above, after Plaintiffs discovered records suggesting the existence of an investigative report, Gomez
provided testimony to the Court to explain why, despite that evidence, no such report existed. In that
testimony, she explained references to a “report” in an email26 from Gina Smith (Gomez’s cocounsel) to Ray Cotton (Baylor’s consultant), stating:
So if we look at the particular correspondence dated May 21st of 2016, from my
colleague, Gina Maisto Smith, to Ray Cotton copying me on that, indicating:
Time sensitive. As discussed, attached are the drafts of the overall
findings and recommendations. These are shared for your review per
David Iler, privilege counsel.
Please call David to discuss any use of these beyond your review. We
will keep you updated in the progress of the narrative of the findings
and recommendations.
And this had two attachments to it. I don’t know if you have those attachments here
today.
Those two attachments would be our internal work-product documents that we gave
the May 11th and May 12th presentation from. Those were shared with the counsel
for the board at the request of Baylor’s outside privilege counsel.
Dkt. 672 at 42-43 (emphasis added). As discussed in detail, in approving the public release of the
13-page Findings of Fact (drafted largely by Pepper Hamilton), and in deciding to adopt the reforms

26

See Dkt. 618-3.

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Pepper Hamilton recommended—the very reforms Baylor will rely on at trial—the Regents relied
heavily on these presentations. Baylor has repeatedly stated that there is no transcript, recording or
other record of the presentations. Thus, the documents from which the attorneys presented their
investigative findings to the Board, the tabbed chronology and associated linked documents, along
with any other documents that record in any way what the Regents were told at the presentation, are
part of the work product Baylor has put in issue through its defense. Baylor must produce all of this
work product, whether it be PowerPoint slideshows, attorney outlines or notes for the presentation,
chronologies, background documents and other similar materials.
These conclusions also mean that Baylor may no longer prevent witnesses from testifying
about a matter, or redact information from a document simply because the information was provided
to the witness by Pepper Hamilton. Baylor’s position has been “that Plaintiffs can ask Regents about
the facts of which they were aware or on which they relied to form the basis of any specific findings,
as long as they do not directly ask what PH attorneys presented to them as part of its presentation or
use such questioning as a basis for arguing a broader waiver.” Dkt. 805 at 11. To the extent that
position was ever correct, it no longer has any application. In light of the conclusions reached in this
order, the very fact that Pepper Hamilton was the source of information is discoverable, as is the
underlying information.
Given that the attorney-client privilege and work product protection have been waived for
Pepper Hamilton’s investigative and reform work, the materials not subject to discovery on those
two matters should be much smaller than that the materials that are discoverable. Things not
discoverable would be materials that were not considered by Pepper Hamilton in its investigation
or reform work, internal emails or communications between Pepper Hamilton attorneys (not copied

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to any Baylor representative),27 legal research, materials Pepper Hamilton attorneys prepared to aid
in conducting witness interviews (witness binders, chronologies, etc.), and notes taken by attorneys
during interviews.
G.

Closing Notes
As mentioned at the outset of the prior section, the Court is writing in a vacuum, as this

discussion is not based on documents submitted to the Court, which means many of the Court’s
statements are necessarily general. This leaves room for mischief in how the order is carried out.
To mitigate that, the Court will strictly enforce the requirements of Rule 26(b)(5)(A) for any
document that Baylor withholds on a claim that it falls outside the scope of this waiver. Not only
must the document be identified on a privilege log, but it must be identified with sufficient detail to
allow the Plaintiffs to assess the claim that the document is not discoverable due to this order.
Failure to do so will result in the waiver of work product protection. The sheer size of the discovery
database in this case will not permit the Court to referee the implementation of this order documentby-document.
Baylor’s privilege log has been a moving target to date, shifting with the Court’s rulings on
waiver. It is time to start over. The Court will therefore order that by July 15, 2020, Baylor shall
serve on Plaintiffs a single privilege log that takes into account this and all previous orders regarding
privileges, and contains only those documents Baylor continues to withhold based on a claim of
privilege or immunity from discovery. This is a one-time opportunity to log documents. A privilege
claim regarding any document not contained on this log will be waived. And because there should

27

In contrast, any email pertaining to either of the two relevant matters between one or more Pepper
Hamilton attorney that includes a Baylor representative is discoverable—indeed, should already have been
produced given the Court’s attorney-client privilege waiver ruling.

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not be any “new” documents at this late date, the log may not contain any document that has not
previously been claimed as privileged, absent good cause. As mentioned, any privilege claim
regarding a document inadequately logged will also be waived. In short, the Court will not permit
or tolerate the sloppiness of the past on these issues.
In a further effort to reduce ongoing disputes, the Court reminds Baylor that this is a
discovery order, and only a discovery order. Simply because a document is produced does not make
it admissible at trial. The scope discussion has solely been one regarding the scope of discovery.
See, e.g., In re Fresh & Process Potatoes Antitrust Litig., 2014 WL 1413676, at *5. (“Even if
negative evidence contained in the attorney’s files may not reflect upon the client’s state of mind,
and may not be admissible as evidence, the evidence may still lead to discovery of relevant and
admissible evidence.”). The battle over admissibility should be fought at trial, and not in discovery.
For their part, the Court reminds the Plaintiffs not to let perfection be the enemy of good. At some
point soon, Plaintiffs surely will have enough evidence to try these cases. One would hope we are
close to that point. The Court will shortly be setting a final scheduling order for this case, and the
remaining time allowed for discovery will not be long. And when it comes to trial, Judge Pitman
does not intend to allocate the weeks and weeks the discovery to date suggests the parties will take
to try the case. It is time to move beyond discovery.
Finally, the Court will not tolerate any more misreadings of a court order. Baylor has made
a habit of avoiding discovery compliance by interpreting orders in its favor even when the order
directs otherwise.

On at least two occasions, Baylor has “accidentally” failed to produce

court-ordered production, both involving Pepper Hamilton materials. Last spring, after Baylor had
certified complete production of all Pepper Hamilton materials, Baylor “discovered” over a thousand

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documents just days before Pepper Hamilton’s production deadline. See Dkt. 653 at 33; Dkt. 667
at 3. And in the briefing on the instant motion, the Court learned that Baylor believed that the Court
had “reconsidered” its order finding Baylor had waived attorney-client privilege for all Pepper
Hamilton materials related to implementation of the 105 recommendations. Dkt. 805 at 13. This
briefing revealed that Baylor had failed to comply with the Court’s year-old order to produce those
materials, which presumably number in the thousands or tens of thousands. See Dkt. 795 at 6. The
Court addressed this briefly at the hearing on May 5th, 2020. Dkt. 837 at 68:13-70:23. Baylor
dropped the argument at the hearing, apologized for its misunderstanding, and has since produced
the materials. Dkt. 836 at 4. Regardless, this pattern is problematic. The Court warns Baylor it will
impose sanctions if Baylor fails to comply in good faith with this Order.
III. MOTION FOR LEAVE TO AMEND THE ANSWER
After Plaintiffs filed their motion to compel, relying in part on statements in the answer
Baylor filed in Jane Doe 11 v. Baylor University, Baylor filed a motion seeking leave to remove all
references to Pepper Hamilton and its recommendations from that answer, stating that it would like
to do so “to reinforce that it is not relying on the advice of Pepper Hamilton attorneys in its defense
in this case.” Dkt. 815 at 1-2. Plaintiffs oppose the amendment. Dkt. 817. Given the ruling on
Plaintiffs motion to compel, this discussion is, to a large extent, academic.
A.

Legal Standard
The Federal Rules of Civil Procedure permit a party to amend its pleading “once as a matter

of course” within 21 days of service or certain motions under Rule 12, and afterwards “only with the
opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(1)-(2). Rule 15(a)
“requires the trial court to grant leave to amend freely, and the language of this rule evinces a bias

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in favor of granting leave to amend.” Lyn–Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th
Cir. 2002). But leave to amend “is by no means automatic.” Davis v. United States, 961 F.2d 53,
57 (5th Cir. 1991). A district court may deny leave to amend if it has a “substantial reason” to do
so. Lyn–Lea Travel Corp., 283 F.3d at 286.
B.

Discussion
Baylor argues that justice requires leave to amend its Answer because “[n]o scheduling order

has been entered in the Jane Doe 11 matter,” no deadlines have been set for the amendment of
pleadings, expert designations, or the close of discovery, and Baylor is not adding any factual
allegations or defenses. Dkt. 815 at 2. Baylor contends that the amendment will not prejudice Jane
Doe 11 or any other plaintiff. Id.
In light of the Court’s ruling on waiver, Baylor’s request for leave to amend the Jane Doe
11 Answer would be futile and contrary to the interests of justice. Amending the Answer does not
change Baylor’s implicit reliance on Pepper Hamilton’s work or the fact that Baylor cannot separate
its own work from Pepper Hamilton’s. Baylor’s attempt to amend one of its Answers is a
concession, not a clarification of its position. Indeed, Baylor states that it does not seek leave to
amend the answers in Jane Doe 1-10 or Jane Doe 12-15, as none of them mention Pepper Hamilton
or its recommendations. Dkt. 817 at 2 (citing Jane Doe 1-10, 6:16-CV-173 (Dkt. 88); Jane Doe 1215, 6:17-CV-236 (Dkt. 40)). But Baylor is mistaken—Baylor does refer to the Pepper Hamilton
investigation and recommendations in its Answer to Jane Does 12-15 by repeatedly referring to “a
law firm,” even though it does not refer to Pepper Hamilton by name. Jane Doe 12–15, 6:17-CV236 (Dkt. 40 at 4, 6-7). The amendment cannot cure Baylor’s reliance on Pepper Hamilton’s work
product in this litigation. See Doe, 2019 WL 3996413, at * 3 (affirming the magistrate judge’s ruling

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and rejecting school district’s attempt to amend its answer to withdraw its advice of counsel defense
in order to preserve its work product protection in Title IX action); cf. Inmuno Vital, Inc. v.
Telemundo Grp., Inc., 203 F.R.D. 561, 564 (S.D. Fla. 2001) (denying motion to amend an answer
to add an advice of counsel defense and stating that “[b]y blocking Plaintiff’s attempt to obtain
discovery on the legal advice rendered from outside counsel on the disputed issue, Defendants
unfairly attempted to use the privilege as a sword to bolster and protect its advice of counsel
defense.”).
Moreover, Baylor added these statements to its answers after the Court specifically warned
it that doing so would put its work product protection in peril:
Although Baylor has impliedly connected the Pepper Hamilton investigation to this
litigation, it has not directly invoked Pepper Hamilton’s work as a defense. Baylor’s
answer in this case, for example, includes no reference to the Pepper Hamilton
investigation. While Plaintiffs argue that Baylor will use the investigation as part of
its defense in the future, such speculation is insufficient, at this time, to satisfy
Plaintiffs’ burden to show broad, subject-matter waiver. Should Baylor directly
invoke the Pepper Hamilton investigation as part of a substantive defense to
Plaintiffs’ claims in the future, the Court will entertain a motion by Plaintiffs
re-urging waiver.
Dkt. 168 at 17 (emphasis added, citation omitted). To allow Baylor to amend the answers to
withdraw its invocation of Pepper Hamilton’s advice after it received this warning would be contrary
to the interests of justice. Baylor has had more than enough time to settle on a defense to this case,
and allowing yet another change four years into the case is unwarranted. Baylor was on notice of
the impact relying on Pepper Hamilton’s work would have, and it is too late for it to withdraw those
references.

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IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to Compel Pepper Hamilton’s Work
Product for the investigation and implementation of reforms (Dkt. 795) is GRANTED on the terms
detailed in this Order, and Baylor’s Motion for Leave to Amend Answer in Jane Doe 11 v. Baylor
University (Dkt. 815) is DENIED.
Baylor shall produce the Pepper Hamilton work product made discoverable by this Order,
and shall serve on Plaintiffs the new privilege log described herein, no later than July 15, 2020.
SIGNED this 2nd day of June, 2020.

____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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