Case 6:16-cv-00173-RP Document 618 Filed 04/18/19 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

JANE DOE 1, JANE DOE 2, §

JANE DOE 3, JANE DOE 4, §
JANE DOE 5, JANE DOE 6, §
JANE DOE 7, JANE DOE 8, §
JANE DOE 9, JANE DOE 10, §
JANE DOE 11, JANE DOE 12, §
JANE DOE 13, JANE DOE 14, AND §
JANE DOE 15 § Cause No. 6:16-cv-173-RP
§ JURY TRIAL DEMANDED
Plaintiffs, §
§
vs. §
§
BAYLOR UNIVERSITY §
§
Defendant. §

PLAINTIFFS’ AMENDED MOTION TO COMPEL PEPPER HAMILTON

AND MOTION FOR SANCTIONS

TO THE HONORABLE ROBERT PITMAN:

Plaintiffs file this Amended Motion to Compel Pepper Hamilton and Motion for Sanctions

and in support would show the Court the following:

I. Motion to Compel Background and Argument

Imposition of sanctions against Pepper Hamilton (“PH” herein) is essential for there to be

compliance with this Court’s orders. PH has produced nothing in response to the March 2017

subpoena or this Court’s orders — not one page or file in over 2 years. After at first wholesale ignoring

the subpoena, now despite crystal clear orders 1 overruling Pepper Hamilton’s arguments to avoid the

subpoena, PH is for all practical purposes still ignoring the Court’s orders. Instead, in a rehash of the

same arguments, PH stacks up one hearsay affidavit upon another to certify, “to the best of my

1
ECF 597 & 607.
1
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knowledge, information and belief, there are no Baylor-related materials in Pepper’s custody or control

that Baylor does not also possess.” 2 This Court has shown extreme patience in this matter, as have

Plaintiffs in hours of attempts to avoid filing a motion such as the present. At this point, PH’s conduct

should be met with swift sanction. 3 PH was not ordered to certify what it gave to another law firm.

PH was not ordered to certify what it thought another law firm had provided to Baylor, or to certify

what it heard Baylor had maybe produced to Plaintiffs. One of the points of this marathon process is

that Baylor has not shown itself to have complied with the Court’s order, 4 and thus PH was ordered

first to make “complete production in response to the subpoena and file a notice with this Court

certifying that production to Plaintiffs is complete …” unless PH filed its own motion “requesting

specific relief.” 5 Then, once PH filed such a motion, the Court ordered it to: “to (1) produce all

materials in response to the subpoena in Pepper Hamilton’s custody or control that Baylor (a) does

2
ECF 611-1 at ¶ 9.
3
A separate response is being filed to address the distinct issue of production of PH’s files for the
three alleged new legal matters it undertook for Baylor.
4
Baylor’s deficient production of PH material underscores the need for production directly from PH.
To date, Plaintiffs still have not been provided a plethora of documents known to exist. For example,
at least one PH custodial file has not been produced, and the recent production shows yet more Baylor
personnel had ESI harvested at the request of PH who have not been disclosed. For example, Plaintiffs
have not received a file for Charlie Beckenhauer, who is on Exhibit A of the agreed custodian list.
ECF 176. In this regard, Plaintiffs also refer the Court to the arguments made in their original Motion
to Compel (ECF 328). Since that filing, Plaintiffs were also made aware that PH harvested ESI not
once, but twice, but these materials have not been produced, such as ESI related to Ian McCaw.
McCaw was deposed almost a year ago, yet still these materials are nowhere to be found. McCaw
testified that the text messages produced were not all of his text messages and pointed out that his
device was secured for preservation twice. See ECF 323 at 320: 3-23. While the list is long, Plaintiffs
appreciate that the Court understands the shortcomings, given that it has twice ordered PH to produce
the materials and, accordingly, Plaintiffs will not continue to list here the suspected and known
deficiencies.
5
ECF 597 at 2
2
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not possess or 6 (b) has not produced, and (2) file a notice with this Court certifying that production

to Plaintiffs is complete no later than April 11, 2019.” 7

PH’s latest arguments – i.e., get someone else to meet its duty in response to Court orders -

are not new and have already been overruled. PH and Baylor have already unsuccessfully argued in

their earlier subpoena avoidance papers that PH should not have to do the production and that Baylor

or Cozen should do it. 8 Similarly, Plaintiffs argued in the earlier papers concerning the PH subpoena,

“Even were it the case that the quality of Baylor’s PH production was stellar, Plaintiffs are still entitled

to seek and obtain discovery directly from PH.” 9 The Court received these arguments and ordered

PH to comply with the subpoena. Instead, PH flat out refused and continues to ignore the Court’s

orders. In addition to rehashing rejected arguments, PH’s non-certification tries a few more arguments

along similar lines. PH complains that complying with the Court’s orders would be “a herculean task”

and “who would pay for such work?” 10 But PH conveniently ignores that this Court has held that

“Pepper Hamilton … waived its objections to the [Plaintiffs] Motion to Compel [it].” 11 For two years,

PH ignored Plaintiffs’ counsels’ efforts to confer over the subpoena, ignored motions before this

Court implicating PH’s custodial files, did not timely comply with Rule 45, and now has defied this

Court’s orders. The ship long ago sailed on worrying about PH’s burdens 12 – indeed, PH has given no

6
Evidently PH wants takes a position that it can pick either (1) or (2), such that if Baylor possesses
something but has not produced it, then PH can simply say Baylor possesses it, but ignore whether or
not Baylor has produced it.
7
ECF 607 at 4 (emphasis in original).
8
See e.g., PH’s ECF 601 at 1-2 (“any and all issues touching on production of documents should be
addressed with Cozen … or with Baylor’s counsel in the litigation …”) and Baylor’s ECF 332 at 2
(“Plaintiffs’ motion [to compel PH to respond to the subpoena because Baylor’s PH production was
shoddy] is a tempest in a teapot” in part because of what a great job Baylor claimed it had been doing
with the PH production it held.).
9
ECF 604 at 8. See also id. at fn. 24 (collecting cases).
10
ECF 612 at 1.
11
ECF 607 at 4.
12
This of course ignores that PH has admitted to having electronically stored this information in a
system that would clearly be an organized eDocument system, having claimed to turn a copy over to
3
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respect to the burdens of these litigants or this Court. PH’s latest gambit also serves as an example of

why Plaintiffs’ counsel have had such a hard time conferring with Baylor and PH. In the Court’s latest

order to PH, it “adopts Plaintiffs’ proposal, (see Resp., Dkt. 604, at 9)” to allow PH to only produce

what Baylor did not have or that Baylor did not produce. Plaintiffs offered this accommodation to

ease PH’s burden, but instead PH used this olive branch as a loophole, thereby allowing it to instead

do nothing. Given this latest maneuver, PH is entitled to not an inkling of accommodation.

Plaintiffs’ efforts to meaningfully confer with PH after the Court’s March 28, 2019 order were

also treated with slaps to the face and further inform the basis of Plaintiffs’ requested relief. The

Court’s order provided, “As always, Plaintiffs and Pepper Hamilton may confer and narrow the scope

of production by agreement if they so choose.” 13 On April 2, the undersigned wrote PH and Baylor

counsel, “As you know, the Court’s order of last Friday concerning the Pepper Hamilton materials

requires us to meet and confer in order to see if we can reduce the burden on Pepper Hamilton in its

efforts to comply with the Court's order. Are you available tomorrow anytime for this purpose?” 14

What ensued was a confusing discussion about the scope of the subpoena covered in terms of work

PH did for Baylor supposedly separate from the PH Investigation.” Yet, no information was offered

about what PH would do to actually produce the PH Investigation files. To bridge the issues, the

undersigned requested a phone call, but PH counsel demurred a call, saying, “I would think that we

could [confer] by email.” 15 Plaintiffs even offered to jointly seek an extension as to those claimed non-

Investigation materials alone until April 30 to confer more. Of course, Plaintiffs, hoping that the new

clear Court order would cause discovery hide-the-ball to finally cease, did not know at that point that

Cozen. PH can push a button and send it all to Cozen, but it is a Herculean task to do the same to
Plaintiffs?
13
ECF 607.
14
See Ex. A.
15
Id.
4
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PH and Baylor were instead working to allow PH to produce nothing in response to the Court’s

orders. PH finally responded to Plaintiffs’ offer to extend the production deadline until April 30 on

just those limited “non-Investigation” materials, by sending a draft motion that sought an extension

until April 30 before PH would have to do anything. 16 Of course, this was not what Plaintiffs had

proposed. Had Plaintiffs and the Court agreed to that extension motion, all that would have been

achieved is a two-week delay before PH produced nothing.

Then suddenly on April 8th, for the first time in months, Baylor started to supplement its

privilege log for PH production. The Court will recall that Baylor was ordered to certify that all PH

production was complete by September 17, 2018. 17 Ignoring that deadline, Baylor finally certified on

September 28, 2018, but we now know that certification to be false. 18 Because, last week, over 6

months after Baylor’s “certification,” Baylor magically located and produced the first of three volumes

of new materials. Ultimately, between April 8-12, Baylor would supplement its privilege log by 113

pages combined into 4 new privilege logs, each listing one to two dozen entries per page of withheld PH

materials, to its privilege log, and produce an additional 1,192 documents supposedly from PH. 19 This

production amounts to an admission that, until the Court imposed the current deadline, Baylor

withheld Court-ordered production. Moreover, the fact Baylor started rolling out its tardy PH

production on April 10th suggests that Baylor and PH had, at least by then, reached an agreement to

attempt to circumvent the Court’s order.

16
The Court should recall that PH’s counsel, the same involved in the recent communications, is the
same PH counsel who last Summer represented that PH had retained none of Baylor’s files, a
representation that later had to be retracted by letter. ECF 604-3.
17
ECF 312.
18
See Ex B.
19
The newly produced materials cannot be what Baylor has just gotten around to - these “new”
materials include such things as emails from Jane Does to PH attorneys, drafting of the Board’s
findings of fact, and early versions of the engagement agreement with PH addressed to Ken Starr.
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The Court can read the full e-mail exchanges. Basically, PH refused to confer on the phone

until the day its certification was due. 20 Plaintiffs accommodated them immediately. Baylor and PH

counsel made clear that all they wanted to discuss were three other legal matters ultimately made

subject of PH’s Motion to Reconsider. 21 When asked, PH’s counsel said that no such review of what

Baylor had produced was taking place, explaining there was no one to pay for this work. He then

explained he personally had no clue about anything and the personnel at Cozen were the ones

Plaintiffs should be talking to. When Plaintiffs asked what measures were being taken to determine

what PH needed to produce, PH made clear it would produce nothing. Although Plaintiffs were still

willing to defer production on the three “other” matters, PH counsel evidently decided not to proceed

with a motion partially extending the deadline for that, and instead filed its latest avoidance papers.

The entire point of having PH complete and certify its own production is to ensure Plaintiffs

have been produced what is available. As Plaintiffs argued before and the Court apparently agreed:

PH’s file is needed in order to ensure full production and to keep Baylor’s production
honest…. Even were it the case that the quality of Baylor’s PH production was stellar,
Plaintiffs are still entitled to seek and obtain discovery directly from PH. Authenticity
and admissibility issues are at play. Also, neither PH or Baylor have demonstrated with
competent evidence that PH does not hold materials independent from what Baylor
has that are responsive to Plaintiffs’ requests and, therefore, those materials at the very
least are discoverable under this Court’s orders. Setting aside the other issues
surrounding this, the already developed record makes clear that PH has received
materials other than through Baylor. The need for independent discovery from PH
and other third parties is thus essential, not only to assure additional materials are
revealed, but also to assure Baylor is meeting its discovery duties, particularly since
Baylor has continuously demonstrated, as shown in the prior record in this case, that
it simply cannot be relied upon to provide full, complete and timely discovery. 22

PH’s privilege review will also likely be different and more in line with the rules and the Court’s

rulings. Many of the documents the Court has reviewed which were submitted in camera were found

20
See Ex. A; The last time Baylor “discovered” more PH documents was only in response to the
Court’s order on 30(b)(6) depositions — something also yet to be explained.
21
ECF 612
22
ECF 604 at 8.
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by the Court to have not been properly withheld and/or not subject to the attorney-client privilege

up to and including all of the Ketchum materials subject of an order just this week. 23 Production by

PH should reduce (if not alleviate) what is surely an enormous burden to the Court of conducting an

in camera review of the large number of PH materials Baylor logged as privileged and withheld.

Finally, even if the foregoing were insufficient to support the Court ordering, for the third

time, PH to comply with its subpoena, the goose and gander rule should underpin the Court’s next

order. Baylor argued that each of the Plaintiffs were obligated to produce the same Facebook chat

forum that one Plaintiffs had already turned over - “However, each plaintiff has an independent

obligation to produce her own data.” 24 Although Plaintiffs had opposed Baylor’s motion as to

duplicate materials held by Jane Does, Plaintiffs now recognize the prudence of the Court’s order of

April 16, 2019. 25 Each Plaintiff is indeed her own custodian who should provide her own version of

documents, and the value of assuring complete production outweighs any burden of producing

duplicative material. Plaintiffs and their counsel are working earnestly to and will comply with this

Order. This ruling by the Court on Baylor’s motion against Plaintiffs corresponds with what Plaintiffs

have been asking this Court to do in regard to Baylor, PH, and other Third Parties aligned with Baylor.

Presumably, it would not be acceptable to the Court (or Baylor) for Plaintiffs’ counsel to wait until

May 7, 2019, the deadline the Court set in its Order, and file a certification that Jane Doe 8 talked to

Jane Doe 3 and was assured that Jane Doe 3 produced the full Facebook chat. Counsel for Plaintiffs

would expect a harsh sanction if they did so, and the lawyers at PH should have expected no less.

Plaintiffs’ belief that relevant and discoverable documents exist is not just some fantasy or

speculation. Mindful the Court does not want extraneous matters going to the merits unnecessarily

23
ECF 616.
24
ECF 605 at 5
25
ECF 615.
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placed into pleadings, just one of many examples is offered here because it should demonstrate that a

compel should be granted and swift discovery sanction is needed: Baylor for the first time, in it “just

found” supplemental production made to Plaintiffs on April 10, 2019, disclosed an email chain

wherein PH provided to Baylor a draft report of its findings. 26 Plaintiffs, the Court and the public

have been led by Baylor to believe that Pepper Hamilton did not draft any report. One Regent testified

that a small group of other Regents drafted the report. 27 But on April 10th, for the first time, we learn

there is some form of “Pepper Hamilton Report,” that PH actually did draft a narrative and overall

findings in connection with what became labeled the Regents’ Findings. That report, in existence at

least by May 2016, is discussed by Gina Smith, Leslie Gomez and Raymond Cotton, 28 in emails

produced by Baylor for the first time last week. At a minimum, Gomez added a draft to the

recommendations, then sent “drafts of the overall findings and recommendations” to Cotton. PH

attorneys were working on a draft of “the narrative of the findings and recommendations.” Cotton

pressed Smith and Gomez for the draft summary, wanting to get it to the Board’s working group.

Where has this email been for over 2 years? 29 And more importantly, where is the PH report, findings,

narrative, and draft summary referred to and why have they not been produced? Baylor’s practice of

trickling out highly relevant documents only on the eve of deadlines set after hours of futile attorney

conferences, and ultimately Court intervention, appears never-ending.

26
Even though the ESI order requires attachments to be produced in their native format, Baylor has
not provided Plaintiffs with the draft PH report exchanged in these emails.
27
ECF 363-2 at 78:5-15; See also ECF 93-5 at 25.
28
See Ex. C; Cotton is known to be a “compensation consultant” who was exchanging messages
with Ken Starr’s representatives during the May 2016 time frame to set up meetings between Starr
and Board Chairman Willis shortly before Starr’s termination. See
http://archive.boston.com/news/education/higher/articles/2012/03/28/meet_raymond_cotton_t
he_college_presidents_secret_weapon_for_pay_and_perks/
29
Had Baylor complied with the Court’s ESI Order, the attachment to this email chain, which
demonstrably exists, would have been produced. Its omission cannot be explained as unintentional.
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How can Plaintiffs or the Court have any confidence in Baylor’s production when such a

revelation, going to the center of one huge factual element in this case – what Baylor did wrong in

connection with rape victims and Title IX – is withheld until the midnight hour before a Court

deadline on PH? Thus, the importance of making PH comply, with the consequence of sanctions,

and not just some allowing that PH says “Baylor told us” is essential.

II. Discovery Relief Requested

PH has taken advantage of the Court’s patience with it. PH has taken advantage of good faith

efforts by Plaintiffs to ease PH’s burdens complying with the subpoena. At this point, PH is entitled

to no further parlay. On the matter of the production issues, the Court should order PH to do one

of the following:

(A) Produce to Plaintiffs in electronic format all materials responsive to the subpoena
without redaction or withholding. Plaintiffs will treat all such materials as attorneys-
eyes-only and will compare them to the materials Baylor has produced to create a
subset of materials withheld by Baylor. Plaintiffs will provide this subset of materials
to Baylor and PH, who can then review them and log those that may include attorney-
client information while simultaneously requesting those materials be “snapped back”
as provided for in the Court’s Protective Order. 30 Any alleged attorney-client materials
that are snapped back can be submitted by any party to the Court for in camera review;

Or

(B) PH shall submit to a third party vendor, hired at PH and/or Baylor’s expense, all those
materials in its possession that are responsive to the subpoena and the vendor shall
compare those materials with what Baylor has produced by performing a de-
duplication command in the litigation discovery software. The vendor will Bates label
all materials not produced by Baylor prior to April 8, 2019, and will produce those
materials back to PH. (PH must submit to Plaintiffs the name of three vendors who
have had no previous involvement with this case and Plaintiff will select from one of
those vendors. In the event the parties are unable to agree utilizing this process, the
Court will select a vendor). PH will then review the materials designated by the vendor
as having not been previously produced by Baylor, make any redactions or
withholdings based on the Court’s prior rulings, after which time all such materials
shall be provided to Plaintiffs except those the subject of a legitimate good faith basis
to withhold which shall then be filed in camera with the Court so that it can review
them;

30
ECF 156.
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Or

(C) PH shall review all of the materials in its file, PH may make any redactions or
withholdings based on the Court’s prior rulings, but otherwise must produce
everything regardless of whether Baylor has also provided it. Any redacted or withheld
materials shall then be filed in camera with the Court so that it can review them.

III. Sanction Relief Requested

It is also necessary for the Court to levy a sanctions on PH. 31 Despite two years of discovery

abuse by Baylor, and hundreds of attorney hours spent on conferring and motion practice, Plaintiffs

have been reticent to seek sanctions. Baylor has been rewarded with desired delay via dozens of

motions to avoid discovery. Baylor even had the nerve to ask the Court to rule generally on 15 topics

expressing hope that their resolution would alleviate the need for ruling on motion, 32 then after the

Court provided such a ruling, 33 just not to Baylor’s liking, Baylor insisted the Court still had to rule on

everything before it will produce anything on the 14 ordered topics. Such remains the case at this

moment - Baylor still has not complied with the Court October 10, 2018 order. 34 Every delay prohibits

Plaintiffs from reaching trial, for Plaintiffs will not rush the case if it means the truth will be withheld.

Despite all tactics PH has employed to avoid production, Plaintiffs have merely moved for

discovery relief, instead of requesting sanctions. Unfortunately, there now remains no alternative.

Until such time as a meaningful consequence is levied upon PH, 35 there will always be one more delay,

31
Federal Rule of Civil Procedure 45(g) authorizes sanctions to be imposed on a nonparty who does
not comply with a subpoena duces tecum or an order related to it. Fed. R. Civ. P. 45(g)(“The court
for the district where compliance is required—and also, after a motion is transferred, the issuing
court—may hold in contempt a person who, having been served, fails without adequate excuse to
obey the subpoena or an order related to it.”). In the instant case, PH has failed to comply with the
original subpoena as well as this Court’s orders.
32
ECF 517.
33
ECF 565.
34
ECF 565.
35
This motion does not seek sanctions against Baylor at the present time. Materials and support for
such a motion are being collected in the event it becomes necessary.
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motion to clarify, or bogus certification scheme in the works. Meanwhile, other non-parties and

Baylor may view these case events and believe that each order of the Court is merely advisory. A

small, but meaningful sanction, is necessary to get this case moving toward final resolution.

Plaintiffs ask the Court to take the approach utilized by United States District Court in a

subpoena by the Special Counsel to a third-party document custodian and award Plaintiffs a per day

penalty until such time as PH makes its document production in full. 36 In that case, the trial court

awarded a penalty of $50,000 per day. The Circuit Court affirmed and the Supreme Court declined

to disturb the ruling. 37 Given that this case does not have the same urgency as the Special Counsel’s

charge, the lesser penalty discussed by the D.C. Circuit opinion seems more appropriate. The Court

should order PH to comply by a date certain and set a penalty of $5,000 per week, doubling every four

weeks until reaching a maximum of $80,000 per week until such time as its production is complete.

PRAYER

Plaintiffs respectfully request that this Court grant Plaintiffs’ Amended Motion to Compel

Pepper Hamilton and grant Plaintiffs’ Motion for Sanctions.

Respectfully submitted,

/s/ Chad W. Dunn

BRAZIL & DUNN, L.L.P.
Chad W. Dunn
State Bar No. 24036507
K. Scott Brazil
State Bar No. 02934050
3303 Northland Drive, Suite 205
Austin, Texas 78731
Telephone: (512) 717-9822
Facsimile: (512) 515-9355
chad@brazilanddunn.com

AND

36
See In re: Grand Jury Subpoena, 912 F.3d 623, 18-3071 (D.C. Cir. Jan. 8, 2019)(slip opinion).
37
See id. at 634.

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DUNNAM & DUNNAM, L.L.P.

Jim Dunnam
State Bar No. 06258010
4125 West Waco Drive
Waco, Texas 76710
Telephone: (254) 753-6437
Facsimile: (254) 753-7434
jimdunnam@dunnamlaw.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF CONFERENCE

This is to certify that Movant has in good faith conferred with PH in an effort to obtain the
requested discovery without Court action. The attorneys have exchanged emails over the last week
and a half. Counsel also held a telephone conference on April 11 where the relief requested in this
motion was specifically addressed.

/s/Chad W. Dunn
CHAD W. DUNN

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing has been filed by
ECF and sent to counsel of record via electronic notification on April 18, 2019.

/s/Chad W. Dunn
CHAD W. DUNN

12