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Judge sanctions BigLaw firm for missing deadline to turn over discovery materials in Baylor litigation

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Pepper Hamilton will have to pay reasonable expenses and attorney fees incurred by its opponent in a discovery dispute as a sanction for a missed deadline to turn over materials and other discovery foot-dragging.

U.S. District Judge Robert Pitman imposed the sanction in a suit filed by 15 plaintiffs who contend that Baylor University mishandled their sexual assault complaints, report the Legal Intelligencer, the Waco Tribune-Herald, the Houston Chronicle and the Philadelphia Inquirer.

Pitman said in his June 21 order that he was imposing the sanction “with clear conviction and without hesitancy.”

Pepper Hamilton isn’t a party to the Title IX lawsuit filed by the women, the law firm pointed out in a statement. But it did conduct a private investigation into Baylor’s handling of sexual assault allegations. Pepper Hamilton concluded in 2016 that there was a “fundamental failure” in the school’s handling of students’ sexual assault allegations against football players.

The plaintiffs sought records in connection with Pepper Hamilton’s investigation.

Pitman said in a June 7 order that Pepper Hamilton failed to comply with a plaintiffs’ subpoena since 2017, failed to file a timely motion to quash the subpoena, failed to respond to the plaintiffs’ 2018 motion to compel, violated a court order to file objections by March 15, and failed to comply with an April 11 deadline to turn over the materials. Pitman incorporated the June 7 order in his June 21 sanctions order.

Pitman said Pepper Hamilton offered no new explanation at a June 17 hearing for failing to comply with the plaintiffs’ subpoena and related court order. But Pitman did say a Pepper Hamilton attorney responded to questions about whether the firm had ever prepared a final or written report on its investigation.

The plaintiffs had sought access to the report. Pitman wanted Pepper Hamilton to explain references to a report in emails and billing records. The Pepper Hamilton lawyer said the references concerned “internal attorney work product.”

In his order, Pitman said if plaintiffs still had concerns about the issue, “they may raise that with the court.”

Pitman ordered Pepper Hamilton to hand over discovery materials to a third-party discovery vendor by July 10. Baylor will then be allowed to assert attorney-client and work-product privilege for some of the materials.

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Pepper Hamilton told the Legal Intelligencer in a statement that it would comply with the court’s order.

“As a nonparty to this litigation, we believe we have fulfilled our legal and ethical obligations in transferring all files related to Baylor matters to Cozen O’Connor when Gina Maisto Smith and Leslie Gomez, the senior investigators on the Baylor matter in question, changed firms more than two years ago, as well as in our subsequent responses to requests to produce any files in Pepper’s possession,” the firm’s statement said.

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