Documents: Baylor, Pepper Hamilton shifted relationship to establish attorney-client privilege

Midway through a nine-month probe into Baylor University’s institutional response to sexual violence, the investigating law firm and the university revised their legal relationship to, in anticipation of litigation, conceal the investigation’s most damning findings, documents filed in a Title IX lawsuit initiated by 10 alleged sexual assault victims state.

Communications between high-ranking Baylor officials and a Pepper Hamilton LLP attorney reflect the shift in relationship to establish attorney-client privilege around the investigation, which led to the firings of Ken Starr as president and Art Briles as head football coach.

Lawyers representing the plaintiffs in Wednesday’s filing argue Baylor’s release of pertinent information to the NCAA, the U.S. Department of Education, its accrediting agency and other investigators should cancel any attorney-client privilege and allow the information to be released in the discovery process for their suit.

The plaintiffs, former students who allege assaults between 2004 and 2016, are seeking documentation supporting a 13-page summary of the Pepper Hamilton investigation Baylor regents released one year ago. Between 2011 and 2014, according to that summary, university administrators and athletics department officials discouraged alleged victims from reporting their assaults.

“The basis for those findings, which are quite heinous, need to be known in order for us to proceed with our case,” said Jim Dunnam, a Waco attorney representing the women.

The motion includes a February 2016 letter from then-Pepper Hamilton attorney Gina Maisto Smith to Baylor regent David Harper, in which both parties agreed that the investigation’s findings and communications between them “are in anticipation of litigation and are privileged work product.”

Pepper Hamilton’s work constituted professional legal service to Baylor and is protected by attorney-client privilege, the letter goes on to say. The document is signed by Smith, Harper and now-Baylor General Counsel Chris Holmes.

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