The secrecy surrounding Baylor’s 2016 investigation may be over

On May 26, 2016, Baylor University issued a 13-page document titled “Findings of Fact.” These findings were put together after Baylor engaged an outside law firm, Pepper Hamilton LLP, to conduct an investigation into sexual assaults at the school, many allegedly committed by Baylor athletes and either insufficiently addressed or covered up by Baylor staffers.

At the time, Baylor claimed this document “contains the salient findings, which are being shared publicly to reflect transparency and accountability.” But the release didn’t hold anyone specifically to account, focusing on failures of departments and groups without referencing individuals. And Pepper Hamilton delivered its conclusions to Baylor via an oral presentation rather than a final written report, a move designed to prevent the information from being revealed later in litigation.

“Later” has now arrived, as multiple plaintiffs suing Baylor for alleged “deliberately indifferent response to multiple events of student-on-student sexual assault” have won the right to see what Pepper Hamilton actually did, learned, and recommended at Baylor. In a 48-page order issued June 2nd, a federal judge instructed Baylor to turn over all relevant documents, audio recordings and anything else pertaining to Pepper Hamilton’s investigation, prescribed changes, and policy implementation.

The order could also bring former Baylor coaches and administrators back into the spotlight. The key players in charge of Baylor football and the university have moved on since former head coach Art Briles was fired in the summer of 2015 for his role in handling sexual assaults by Baylor players. Briles is now a high school head coach in Mount Vernon, Texas; former athletic director Ian McCaw holds the same position at Liberty, and former Chancellor Kenneth Starr resigned in 2016. Baylor hired Mack Rhoades, formerly of Houston and Missouri, to replace McCaw, and three head coaches — Jim Grobe, Matt Rhule and now Dave Aranda - have held the position since Briles. (Despite Baylor’s stonewalling, Jessica Luther and Dan Solomon published a thorough and devastating investigation into what actually happened at the school under Briles, McCaw, and Starr.)

With the exception of former defensive coordinator Phil Bennett, all of Briles’ on-field assistants on the 2015 Baylor staff are still coaching; his son Kendal is offensive coordinator at Arkansas, and former offensive assistants Jeff Lebby and Randy Clements are both at Ole Miss. Defensively, former associate head coach Brian Norwood is now at UCLA, former assistant Chris Achuff is at Syracuse, former assistant Carlton Buckels is at Tulsa, and former assistant Jim Gush is at McNeese State.

Because of the unique structure of Pepper Hamilton’s investigation, no documentation has been made public to date. Baylor’s refusal to provide any details on the firm’s investigation likely protects some former staffers, while others suffer from an inability to clear their name. One thing is for certain — the move to limit Pepper Hamilton’s report to a single oral presentation was made by Baylor to protect Baylor.

To help parse the Pepper Hamilton report’s sudden resurrection, we’ll be making use of Banner Society’s editor-in-chief Ryan Nanni’s legal training:

SG: Wait, so you’re telling me the alleged victims of these attacks have not been able, so far, to learn the results of the investigation?

RN: Pretty much. Since this case began, Baylor’s insisted that anything Pepper Hamilton told the Baylor Board of Regents, or gathered to prepare for that presentation, or learned in its investigation, or relied upon when proposing reforms Baylor should enact, cannot be disclosed to the plaintiffs. In depositions, when the plaintiffs have asked witnesses to discuss the information Pepper Hamilton provided at the presentation, Baylor instructed those witnesses not to answer.

SG: Most people are familiar with the concept of attorney-client privilege. Why doesn’t Pepper Hamilton’s work fall under this concept?

RN: Attorney-client privilege protects communications between attorneys, and (surprise) their clients. “Communications” is the key word there; the idea here is that you can get legal advice from an attorney without either party being forced to disclose the contents of that advice later.

The simple answer is Baylor already lost that argument three years ago, when the Court ruled that privilege had been waived due to Baylor “making repeated public disclosures” about Pepper Hamilton’s work for them. This latest argument Baylor lost in June 2020 focused specifically on the work product protection.

SG: OK, what’s work product protection?

RN: Work product protection covers a lot more than attorney-client privilege. The basic idea here is that attorneys should be able to prepare work in preparation for litigation that the other side can’t get their hands on – even if that work isn’t ever communicated to the client. Say your attorney interviews a witness, and writes a memo including their own judgment of the witness’s credibility and consistency, or another attorney writes a memo analyzing how your side should argue a question of law at trial. Those could both be covered by the work product protection.

The work product protection has exceptions, however, and in this case, Baylor’s legal defense explicitly relies on the work product Pepper Hamilton generated. This is how the magistrate judge put it:

“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…”

Baylor wants to argue at trial that it acted reasonably by investigating the school’s past responses to sexual assault complaints, coming up with changes, and implementing them. But they don’t want the plaintiffs to see or even ask about any of the work Pepper Hamilton did in any of those phases, and that didn’t pass muster here. A party can’t point to the work an attorney did as proof of something and then deny the opposition the chance to examine that work.

SG: It seems like this judge is especially pissed off at Baylor for what he called “hiding the ball.”

RN: I think a few things are at work here. First this case has been going on for four years, and no judge loves having things sit on their docket that long.

Second, Baylor’s persistent refusal to turn over anything connected to Pepper Hamilton has been a major source of that delay, and it’s caused a big backlog; the Court noted there could be tens of thousands of documents that need to be turned over to the plaintiffs.

Third, the order also mentions that, earlier in this case, Baylor “has at least twice either ‘misread’ orders or ‘accidentally’ failed to produce Pepper Hamilton materials the Court had ordered produced.” Judges really, really don’t like it when you ignore or undermine their decisions.

Finally, Baylor made a truly bonkers proposal: they would not mention Pepper Hamilton at trial and asked the court to prohibit all parties and witnesses from bringing up the firm or its work. That, in Baylor’s mind, would uphold the work product protection. The Court wasn’t interested, finding that solution “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.”

Given all that, it’s not surprising the judge got mildly heated in this decision (and this isn’t even that bad, frankly). Baylor’s run a lot of clock on the back of a flimsy argument.

SG: So I’m with the judge here; that’s shady as hell. What’s the court doing to shed some more light?

RN: This order now requires Baylor to turn over any documents concerning the information Pepper Hamilton conveyed in that presentation about the investigation the firm undertook, the reforms they recommended, and the implementation of those reforms. Moreover, Baylor has to turn over anything that formed the factual basis for Pepper Hamilton’s conclusions and recommendations — recorded witness interviews and interview memos, for instance — as well as any documents that pertain to the independence and integrity of the firm’s work for Baylor.

The order doesn’t stop there, either. Because Baylor asserted work product privilege over a mountain of documents for years, the Court has ordered them to turn over the search terms Pepper Hamilton used to cull through those documents for relevant information, and the facts and data Pepper Hamilton relied upon for the conclusions they reached. This means Baylor can’t just bury the plaintiffs in emails to sift through to figure out which ones are important.

SG: So what happens now?

RN: Without knowing what’s in those documents, it’s hard to say how important they’ll end up being to the plaintiffs or how they’ll be used. But they’re going to get a very thorough look at the actual substance of the investigation at Baylor, which nobody other than the Regents and Pepper Hamilton have been privy to before this. That might reveal inconsistencies with testimony certain witnesses provided in depositions. It might show that the school was aware of its failures and chose to ignore them.

But that said, there’s no guarantee anyone outside the plaintiffs and their attorneys will see any of those documents. Baylor could deem them confidential, which would prevent the plaintiffs from using them outside of litigation. And if the parties reach a settlement before trial, the public might never learn anything about Pepper Hamilton’s investigation, beyond the limited story Baylor told in 2016.