Letter: Pepper Hamilton's Baylor findings were confidential because of possible legal action

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According to a letter cited in the latest Title IX lawsuit against Baylor, the findings between the Pepper Hamilton law firm and the school were “privileged work product” in “anticipation of litigation.”

The lawsuit, filed last week by a woman who alleges that she was gang-raped by former Baylor football players, says that Baylor and the law firm reclassified their relationship as the firm was looking into the school’s mishandling of sexual assault allegations.

The suit cites a letter between the law firm and the school in February of 2016. From the Waco Tribune:

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.

Pepper Hamilton was hired by Baylor in September of 2015 as an independent investigator of the school’s inability to properly act regarding accusations of sexual assault. Baylor has said that Pepper Hamilton didn’t produce a written report at the conclusion of its findings outside of the summary published publicly in May of 2016. Former coach Art Briles was fired after the investigation finished and president Ken Starr and athletic director Ian McCaw resigned.

The latest suit, the seventh Title IX suit filed against the school, alleges Baylor lacked the standards for support of victims of sexual assault and that some former football players viewed gang rapes as a team bonding experience. In March, the school filed a motion to dismiss a suit that alleged 52 sexual assaults were committed by football players.

The motion detailing the letter says the importance of information behind the Pepper Hamilton needs to be public for the suit to proceed. Baylor has argued that all information unrelated to the plaintiffs in the pending suits shouldn’t be released because of privacy concerns.

Two former Baylor players are currently serving prison terms on rape charges while two others are facing sexual assault indictments. The school has touted the steps its taken since the Pepper Hamilton investigation including changes to leadership and its student support system.


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Nick Bromberg is the editor of Dr. Saturday and From the Marbles on Yahoo Sports. Have a tip? Email him at nickbromberg@yahoo.com or follow him on Twitter!