By Vivian Roach | Staff Writer
In a four-year long lawsuit against Baylor, attorneys for 15 “Jane Doe” Title IX assault case victims filed a motion to sanction Baylor for not providing evidence documents after three separate reviews for completeness. Baylor has until Monday to respond to the plaintiff’s motion for sanctions.
After three separate reviews and comparison findings, the plaintiffs filed a motion on Nov. 4 to sanction Baylor for discovery abuse, prolonging the case and causing increased costs in litigation.
“The last sixteen months has made it crystal clear that neither accountability for Baylor’s discovery abuse nor speed in this litigation has been achieved,” the motion said.
Jim Dunnam, one Waco attorney representing the plaintiffs, said the lawsuit was filed for issues his clients had with the school’s Title IX policy.
“For some of the young women, it’s specifically how Baylor treated them after they reported. For all of the young women, it has to do with Baylor’s intentional policy that discriminated against young women in suppressing and concealing reports of sexual assault,” Dunnam said.
In August 2015, the Pepper Hamilton law firm was hired by Baylor to review the school’s response and conduct toward Title IX assault cases. The firm provided the Board of Regents with their findings, and in May 2016, the board published a “findings of fact” summarizing failures identified and recommendations from the firm.
A third-party company, UnitedLex, was hired to review millions of pages of evidence, transcriptions and logs of data in the Pepper Hamilton documents. Pepper Hamilton, Cozen O’Connor — the law firm where the Pepper Hamilton attorneys who conducted the investigation now work — and Baylor all provided copies. UnitedLex compared the three versions that exist to make sure no documents were missing.
“The discovery in this case is extremely extensive given the number of plaintiffs involved, dating back to 2003, and millions of documents over that time period,” Baylor spokesperson Jason Cook said.
Baylor is contesting they have accounted for all documents.
“Nobody concealed anything,” Baylor’s outside counsel Lisa Brown said in a statement.
Upon first digital review in January 2020, UnitedLex found a discrepancy in 33,377 documents out of 1,331,916. Baylor claimed the minor discrepancies were at cause from processing mistakes, technical issues and minor variations.
“Everyone understood when this comparison was being done that there would not be a 100% match. The vendor compared 1,331,916 documents and matched over 99%. Baylor is ready to explain the small variance in the documents to the court,” Brown said.
UnitedLex provided Baylor with the exact documents that were missing, and in May, Baylor made an accounting log for the missing documents from the first review. Between May 12-14, Baylor produced 2,794 new documents to plaintiffs and logged an additional 3,327 documents. The plaintiffs requested that a second review be done for a 95% comparison to measure the significance of the discrepancies. In June, the comparison found that 23,323 documents out of 33,377 didn’t meet that 95% match.
In the last report, Baylor requested UnitedLex use their accounting log, which provided explanations for each non-match, to manually make comparisons in documents. In the findings, each missing document was accounted for, designated either “exact match,” “substantive match,” “no comparison file,” “technical,” or “variance.” The Nov. 4 motion filed by plaintiff attorneys said 8,257 documents were filed as “no comparison file,” meaning there were no matching documents provided by Baylor.
“We have reason to believe these are material items,” Dunnam said.
The plaintiffs are asking the court to charge seven sanctions against Baylor.
“Jury instruction that informs the jury of Baylor’s consistent efforts to hide materials in discovery and that allows the jury to presume it was successful in preventing the production of at least some damaging material,” the Nov. 4 motion said.
Plaintiffs also requested that UnitedLex share all documents, Baylor be fined daily until they comply with court orders and the plaintiff is awarded sanctions in the amount equal to what Baylor has paid UnitedLex. Baylor said in “Baylor’s Response to Plaintiffs’ Advisory (Dkt. 897),” on Oct. 2, Baylor has paid the company more than $200,000 to date.
“Baylor wants these cases set for trial as soon as the court can set them,” Brown said.
A court hearing has been set for Nov. 20 with U.S. Magistrate Judge Andrew Austin.