Baylor officials to be deposed

U.S. District Judge Robert Pitman issued an order on Monday clarifying the Title IX discovery process. Liesje Powers | Multimedia Editor

By Phoebe Suy | Staff Writer

Current and former Baylor administrators and regents will answer under oath regarding how the university handled sexual assault allegations, according to a Wednesday motion filed by 10 alleged sexual assault victims suing Baylor in a Title IX lawsuit.

Deposition notices were sent to a variety of top administrators, including President’s Council members Dr. Reagan Ramsower, senior vice president and chief operating officer, and Dr. Kevin Jackson, vice president for student life.

Deposition, or testifying under oath, is a part of the discovery or information-gathering process and is as evidence at the time of trial. This trial is set for October 2018.

“We look forward to trying to get the documents so that we can be prepared to do those [depositions] in a thorough and efficient way,” Dunnam said. “Every day we get a step closer to the facts coming out that are true.”

Former Title IX coordinator Patty Crawford and former Baylor student life case manager Sarah Ritter were also issued notices, according to the filing, along with associate director for judicial affairs David Murdock and former regents Richard Willis and Neal “Buddy” Jones. Current regents Ronald Murff and James Cary Gray will be summoned as well.

Bethany McCraw, associate dean for student conduct administration and the custodian of the largest volume of documents in the Pepper Hamilton collection according to Baylor, was also sent a deposition notice.

The motion states that other top level Baylor officials such as, former president Ken Starr, former athletic director Ian McCaw, former deputy athletics director Todd Patulski, former Baylor police chief Jim Doak and former vice president for constituent engagement Tommye Lou Davis were also requested.

Former Title IX investigator Gabrielle Lyons is scheduled to be deposed yesterday in Chicago. Lyons is also suing the university in a separate lawsuit in which she alleges Baylor retaliated against her attempts to bring the school into Title IX compliance.

Wednesday’s motion argues Baylor actively worked to avoid or delay Lyons’ deposition. According to the motion, Baylor knew since April that deposition of Lyons was a priority for the plaintiffs. Deposition dates were requested on April 25, the filing states, and subsequent communication with Lyons’ lawyer Rogge Dunn was “fruitless” as he did not contact the plaintiffs’ attorneys until the afternoon of Oct. 31.

Lawyers Chad Dunn and Jim Dunnam, representing the alleged victims, expressed discontent in the filing, stating deposition notices were issued four times between July 12 and Aug. 15, giving Baylor time to respond earlier than a few days before the scheduled deposition on Nov. 2.

Additionally, the lawyers referred to Baylor’s privacy concerns under the Federal Educational Rights and Privacy Act (FERPA) as a “continu[al] throwing up of FERPA to conceal from Plaintiffs meaningful discovery.” The plaintiffs’ counsel alleges production of records is still possible without identification of non-party students, the filing states.

“This whole ordeal is simply more of Baylor’s continuing effort to prevent meaningful discovery in this case,” the filing states.

“We, as representing Baylor students, we’re very conscious of student privacy and there’s no interest on our part to infringe on student privacy. We think the judge has put processes in place that protect student privacy,” Dunnam elaborated.

As the process of deposition begins, the discovery of documents in the Pepper Hamilton collection continues, with some clarifications from U.S. District Judge Robert Pitman.

Pitman issued an order Monday outlining which words or phrases were permissible in the discovery of electronically stored information or ESI.

Baylor is the custodian of thousands of documents provided to Pepper Hamilton as a part of their 2015 investigation of Baylor’s response to and compliance with Title IX. As attorney Jim Dunnam explained in August, his clients, the 10 women who allege the university mishandled their sexual reports, are seeking background information that supports the Baylor Board of Regents’ findings.

In late August, both parties agreed to certain keywords to utilize when searching through the ESI, but some terms such as “alcohol,” “bury,” “she/s dress,” “she/s expect” and “drunk” remained in disagreement.

Plaintiffs argued ESI materials containing the term “alcohol” were necessary because “[a]lcohol consumption was often used as an excuse to ignore or downplay reports of sexual assault,” the filing states. Words such as “drunk,” “incapacitated” and “intoxicated” also fell into a similar category, the plaintiffs asserted.

On Monday Pitman denied plaintiff’s request for materials with these terms, ruling that requiring Baylor to produce all ESI materials containing such terms “would result in the production of a large quantity of irrelevant information.”

In regard to the word “incapacitated” specifically, the court reached a different conclusion.

“While the terms ‘alcohol,’ ‘drunk,’ ‘intoxicated’ and ‘wasted’ are likely to appear in a large volume of documents unrelated to this case, ‘incapacitated’ — which is often used to refer to an individual’s capacity, legal or otherwise, to consent to sexual activity — is likely to produce information relevant to Plaintiffs’ claims,” Pitman ruled.

In addition to terms related to alcohol use, the plaintiffs are also seeking to discover materials containing terms related to former Title IX Coordinator Patty Crawford’s public statement in which she gave plaintiffs “reason to believe certain administrators destroyed and instructed other[s] to destroy evidence,” the filing states.

Pitman ordered ESI materials containing “bury” and “hiding” to be discoverable, while “delete” is only discoverable if used in conjunction with “report” or “evidence.” Additionally, ESI with the word “purge” is only discoverable if material does not also contain the terms “binge” or “eating.”

As for terms related to women specifically, “she/s dress,” “she/s expect” and “she/s wearing,” Pitman ruled these terms were relevant to discussions regarding sexual assault. He said the “relatively low number of responsive materials” makes the benefit of making those documents discoverable greater than Baylor’s burden to produce them.

Ultimately Dunnam said he believes they will be able to find the information they are looking for.

“[Discovery] is an incremental process … it moves forward as fast as people want it to,” Dunnam said.

In an Oct. 23 filing, Baylor said it was completing the processing of Pepper Hamilton documents from McCraw. Over 45,000 documents are associated with McCraw, the filing states, and 32,000 have been tagged as FERPA records. According to Baylor, McCraw’s records indicate at least 6,200 students’ records are subject to disclosure in the discovery process.

The Family Educational and Privacy Rights Act is a federal privacy law. Eighteen-year-old students at postsecondary institutions are protected under FERPA, meaning education records, disciplinary records and even class schedules are protected. Institutions must have written permission to disclose personally identifiable information to anyone other than the student in question.

Disclosure exceptions include judicial orders or lawfully issued subpoenas, given that institutions make a reasonable effort to notify parents or eligible students in advance so that they can seek protective action if desired. FERPA does not require protective actions be granted, Pitman noted in his Wednesday order, but students who objected to production of their records were reviewed in camera or in private.

“Baylor University continues to maintain our position of keeping discovery in this case focused on the claims of the plaintiffs who have sued and preventing the disclosure of nonparty student records, such as confidential medical and counseling records,” the university said in regard to last week’s motion. “We will remain steadfast in protecting the privacy of thousands of our students who are not involved and who may have no knowledge of this legal matter.”

As far as deposition and FERPA are concerned, Pitman also ruled on Wednesday that Lyons is prohibited from testifying to “any personally identifying information regarding non-party students contained in FERPA records the Court has not yet reviewed.”

While Pitman outline additional aspects of ESI discovery on Monday, the university is still seeking further clarifications in light of the the institution’s federal privacy protection requirements. Baylor asked the court last week to clarify orders for psychotherapy and medical records. In the interim, the university said it is seeking a ruling from a higher court, the Fifth U.S. Circuit Court of Appeals, to answer some of these privacy questions.

Baylor regent Judge Jennifer Walker Elrod serves on the court.