Pepper Hamilton Sanctioned for Violating Discovery Order in Baylor Case
“The evidence of Pepper Hamilton's conduct in violation of the court's orders is so 'clear, direct, weighty and convincing' that the court reaches this conclusion with clear conviction and without hestitancy,” U.S. District Judge Robert Pitman of Waco wrote.
June 24, 2019 at 12:59 PM
4 minute read
The original version of this story was published on Texas Lawyer
In a discovery imbroglio in a Baylor University sexual assault case, a Texas federal court sanctioned Philadelphia-based big law firm Pepper Hamilton, which must pay the attorney fees and expenses the plaintiffs spent in the records dispute.
It's not yet clear how much the sanction will be as the plaintiffs have until Aug. 20 to submit evidence of their fees and expenses. Yet on the other side, Baylor has spent $4.5 million in the discovery process and produced more than 3 million pages of records, said Baylor spokesman Jason Cook, who declined comment on the court's order.
“It costs a lot of money to hide materials,” said Brazil & Dunn partner Chad Dunn of Austin, who represents the plaintiffs.
He said the plaintiffs had to file hundreds of pages of motions in the discovery fight.
“We're at a stage in the case where it became necessary for the judge to closely supervise discovery. We're pleased with the court's order that it is going to see to it the rules are followed and all the documents and materials relevant to this case are turned over,” Dunn said.
In a statement, Pepper Hamilton said it would comply with the court's order, which gives the firm clarification about its discovery obligations.
“As a nonparty to this litigation, we believe we have fulfilled our legal and ethical obligations in transferring all files related to Baylor matters to Cozen O'Connor when Gina Maisto Smith and Leslie Gomez, the senior investigators on the Baylor matter in question, changed firms more than two years ago, as well as in our subsequent responses to requests to produce any files in Pepper's possession,” the firm's statement said.
The court ordered Pepper Hamilton to comply with a discovery request that 15 Jane Doe plaintiffs sent for records related to the firm's investigation, leading to a 2016 report into how Baylor handled its football team sexual assault scandal. The plaintiffs' Title IX lawsuit alleges the university ignored their sexual assault allegations as students and created an environment on campus that allowed future sexual attacks to continue.
Pitman issued a scathing order June 7 that detailed the discovery scuffle and faulted both Pepper Hamilton and Baylor. He ordered the parties to a June 17 hearing to hash out the dilemma. The court's latest order is the result of that hearing.
“The evidence of Pepper Hamilton's conduct in violation of the court's orders is so 'clear, direct, weighty and convincing' that the court reaches this conclusion with clear conviction and without hestitancy,” wrote U.S. District Judge Robert Pitman of Waco in a June 21 order in Doe v. Baylor University.
The court found clear and convincing evidence that Pepper Hamilton knew it violated a court order, first by failing to file objections to the discovery request on time, and then by missing an April 11 deadline to give up the records. The excuses the firm offered were inadequate because its objections have existed for two years.
The court created a mechanism for Pepper Hamilton and Baylor to give the plaintiffs the information. All the parties must agree on a third-party discovery vendor, with Baylor and Pepper Hamilton footing the bill, to process the materials for the plaintiffs.
Pepper Hamilton may withhold some information for which Baylor already submitted a privilege log, said the order. Regarding records of Pepper Hamilton's representation of Baylor in several other matters, Baylor will be allowed to assert attorney-client and work product privilege, but must produce the rest.
“The court is sensitive to plaintiffs' argument questioning Baylor's designation of privileged materials and will revisit this order if it appears that Baylor is abusing its opportunity to designate privileged material,” warned the court.
Cobb Martinez Woodward member William D. Cobb Jr. of Dallas, who represents Pepper Hamilton, didn't immediately respond to a call or email seeking comment.
Read the court's order:
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