(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; in explaining the court's conclusion about Baylor waiving its privilege protection, not identifying the privileged communications Baylor actually disclosed; "In May 2016, a few months after this amendment, Baylor released two documents summarizing the results of the Pepper Hamilton investigation, a thirteen-page summary of the investigation and its conclusions entitle 'Findings of Fact,' and another ten-page list of recommendations titled 'Report of External and Independent Review, Recommendations.' (quoting Baylor's statement that its interim president 'would like to reiterate that the Findings of Fact fully reflect the themes, core findings and failings identified in the investigation'))"; "In other words, the documents summarize the complete course of previously confidential communications between Baylor and Pepper Hamilton. The Findings of Fact document even connects several specific factual findings to Pepper Hamilton. . . . As just one example, the findings explain that Pepper Hamilton found instances of university administrators 'directly discouraging complainants from reporting or participating in student conduct process' and that, in one instance, an administrator's actions 'constituted retaliation against a complainant for reporting sexual assault. . . .' The Shillinglaw answer includes even more specific details, going so far as to quote text messages and conversations by Baylor personnel about reports of sexual assault [these might have been historical non-privileged communications, not privileged communications involving Pepper Hamilton lawyers] and explain that these conversations were uncovered by Pepper Hamilton in the course of its investigation. . . . The Recommendations document then details over ten pages of guidance and advice provided by legal counsel. . . . These disclosures are far from a generic statement that Baylor sought legal advice on Title IX compliance."; "Plaintiffs argue that three disclosures by Baylor constituted waiver of attorney-client privilege. First, Plaintiffs argue that Baylor waived its attorney-client privilege when it released the Findings of Fact and Recommendations in May 2016. Second, Plaintiffs point to disclosures made in a filing by Baylor regents in Shillinglaw v. Baylor University, et al., No. DC-17-01225 (Dallas Cty. Dist. Ct.), where, for example, the regents quoted text message exchanges and paraphrased conversations in which Baylor personnel discussed an alleged rape by a football player and a gang rape reported to athletic staff. . . . The filing explains that all facts and evidence discussed were revealed by Pepper Hamilton's investigation. . . . Third, Plaintiffs argue that former Baylor regents were also briefed by Pepper Hamilton about details of the investigation that have since been kept confidential. . . . "; "These disclosures were intentional and together provide substantial detail about both what Baylor and its employees told Pepper Hamilton and what advice Baylor received in return. After carefully reviewing the documents disclosed, the Court finds that they are much more akin to those made in cases where waiver was found, than those where no waiver was found. Compare Nguyen, 197 F. 3d at 207 & n.17 (finding waiver where deposition questions to executives 'elicit[ed] information about the substance of [attorney-client] communication, touching on the directions given to counsel and the legal materials reviewed in addressing the question presented'); In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (finding waiver where an '85-page report for [a client] summarize[ed] in detail the facts uncovered by the law firm in the course of its investigation'); with YETI Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 8677303, at *1 (W.D. Tex. Dec. 30, 2016) (finding no waiver where a single email produced in discovery stated that '[w]e believe and our attorney has confirmed that we are not infringing'); Nat'l W. Life Ins. Co. v. W. Nat'l Life Ins. Co., No. A-09-CA-711 LY, 2010 WL 5174366, at *7 (W.D. Tex. Dec. 13, 2010) (finding no waiver where 'communications merely note that they have sought advice from their attorneys . . . regarding [a] name change' and 'do not disclose the confidential advice and the opinions of their legal counsel')."; rejecting Baylor's argument that it had disclosed only facts, not privileged communications; inexplicably seeming to equate the disclosure of facts with the disclosure of communications, apparently because the facts must have been disclosed in privileged communications; "Baylor argues that waiver results only from revealing confidential communications, not underlying facts, and asserts that the Findings of Fact and Shillinglaw answer do not reveal the communication themselves. The documents themselves contradict this argument. The Findings of Fact reveal that all findings were the result of Pepper Hamilton's investigation – a 'detailed, thorough and rigorous' investigation based on 'unfettered access to personnel and data.'. . . Contrary to Baylor's assertion, this connection between Pepper Hamilton and the thirteen pages of findings 'reveals' what facts Baylor provided to Pepper Hamilton, not just the underlying facts themselves. In other words, the Findings of Fact are a 'publication of evidence of the communications.'. . . The exact contents of the communications need not be revealed to constitute waiver. See, e.g. In re Kidder, 168 F.R.D. at 468 (finding waiver of the attorney-client privilege where a report made a factual summary and paraphrased interviews conducted by attorneys); Nguyen v, 197 F.3d at 207 (affirming a district court's finding of waiver where executives recounted communications with attorneys in depositions. Similarly, in Shillinglaw, the answer explains that the Pepper Hamilton investigation uncovered the detailed evidence discussed in the answer – again, revealing what was communicated by Baylor and its personnel to Pepper Hamilton."; "Relatedly, Baylor argues that because the Findings of Fact and Recommendations were drafted for the express purpose of public release, they can reveal no confidential communications. This argument is both unconvincing and unsupported by case law. Baylor chose to publicly release a detailed summary of Pepper Hamilton's investigation that disclosed, among other things, attorney-client communications. [the opinion does not identify such privileged communications] While the information contained in these summaries was previously confidential, Baylor's decision to prepare and release a summary of those communications indicates its intentional waiver of that confidentiality. The logical extension of Baylor's argument is that the creation and public release of any document discussing attorney-client communications, no matter how detailed or self-serving, would not constitute waiver. That cannot be the case."; "Next, Baylor argues that generic statements about consulting with an attorney do not constitute waiver. But generic statements are not at issue here. Instead, the thirteen pages of Findings of Fact and ten pages of Recommendations purport to summarize the entire investigation by Pepper Hamilton – both the information provided by Baylor and the factual and legal conclusions that resulted from it.") (emphases added)
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2017-08-11 |
Federal |
TX |
|