By David Barron
The torturous path through evidence discovery continues in the long-running Title IX lawsuit involving Baylor University and 15 Jane Doe plaintiffs, but it will do so, for now, without major sanctions sought by the women’s attorneys against Baylor.
U.S. Magistrate Judge Andrew W. Austin on Monday ordered that plaintiffs receive 1,261 documents produced by the Philadelphia law firm Pepper Hamilton for an investigation into allegations of sexual abuse of female students at Baylor.
That investigation in 2016 led to the decision by Baylor regents to fire football coach Art Briles and demote university president Ken Starr because of the school’s shortcomings in enforcing Title IX protections for students.
Austin also ordered UnitedLex, a third-party vendor handling document verification duties for the lawsuit, to determine the status of an additional 4,200 documents that Baylor says have been accounted for but that plaintiffs say remain in dispute and should be produced as evidence.
As for another 815 documents in dispute, Austin ordered a May 7 hearing to determine whether they fall under a judge’s order requiring them to be handed over to the women’s attorneys.
Austin, however, declined to impose sanctions against Baylor sought by the plaintiffs’ attorneys. Those actions included an instruction to jurors, if and when the case comes to trial, that Baylor had attempted to hide materials during evidence discovery.
The women’s attorneys also asked that Baylor be barred from further efforts to limit document production based on attorney-client privilege, and they sought daily fines and additional penalties against Baylor until discovery issues were settled.
While he turned down most of the requested sanctions, Austin ordered Baylor to turn over the thousand-plus documents and said Baylor would have to pay for additional expenses that could result from evidence contained in the material.
The Baylor-Jane Doe case has been notable for continued disputes between the parties related to evidence production. Austin described the dispute as “seemingly endless” and said “Baylor has been as aggressive as any party the Court has encountered” in trying to withhold items from discovery.
“The end result is that discovery has dominated this case for years and has made it take far longer and cost far more than it needed to,” Austin wrote.
The amount of paper involved in the case is considerable. UnitedLex said in 2020 that Pepper Hamilton provided 1.365 million documents for examination that were generated by the Baylor Title IX investigation.
After a series of examinations, UnitedLex came up with 12,129 documents from the Pepper Hamilton submissions for which it could find no matching record as having been either given to the plaintiffs or designated as privileged material.
In the final accounting, Baylor asserted that 1,793 documents were unaccounted for. Plaintiffs’ attorneys claim the actual number is 8,069. That dispute led to the plaintiffs’ motion for sanctions on which Austin ruled this week.
While Austin was critical of Baylor for its penchant to miss deadlines for evidence production and for “overlooking” documents it had been ordered to produce, he said he did not find evidence of misconduct that would warrant sanctions against the university.
However, he also wrote, “This does not mean that Baylor’s production of the Pepper Hamilton materials has been laudable. … The UnitedLex work has provided additional evidence that Baylor’s assurances and certifications were at best inaccurate. Further, Baylor has missed deadline after discovery deadline set by the court.”
“By failing to timely produce or log these documents, Baylor has waived all objections and privileges related to them,” he added.
While that document dispute continues, the parties are in dispute over whether Baylor should be entitled to any communications between the plaintiffs in the case.
Baylor says the plaintiffs continue to withhold communications to which it is entitled; attorneys for the women say the dispute was addressed by a previous court order with which it has complied.
Pepper Hamilton’s investigation into Title IX enforcement issues at Baylor resulted in the submission of more than 100 proposed enforcement reforms to the school, which in May 2016 adopted the firm’s suggestions while firing Briles and demoting Starr, who subsequently resigned.
The plaintiffs are represented by attorneys Chad Dunn of Austin and Jim Dunnam of Waco. Lisa Brown with the Houston office of Thompson & Horton represents Baylor.
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