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Case 6:16-cv-00173-RP Document 196 Filed 09/20/17 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, AND JANE DOE 10 Cause No. 6:16-cv-173-RP-JCM
JURY TRIAL DEMANDED
Plaintiffs,

vs.

BAYLOR UNIVERSITY

Defendant.

PLAINTIFFS MOTION TO CLARIFY ORDERS CONCERNING


DISCOVERY AND ELECTRONICALLY STORED INFORMATION

TO THE HONORABLE ROBERT PITMAN:

COME NOW JANE DOES 1-10, Plaintiffs, who file this Motion to Clarify Orders

Concerning Discovery and Electronically Stored Information (ESI) and in support thereof would

show the following:

INTRODUCTION

Recent discussions between counsel have revealed a fundamental disagreement concerning

the duties of Baylor under the agreed ESI order entered by the Court (ECF 176). Specifically, Baylor

now claims that it can review the materials yielded from search terms for responsiveness or relevance

and withhold documents. Plaintiffs believe this position is inapposite to the Court's earlier rulings, is

against the plain language of the Court's order, is inappropriate for the case, and fundamentally defeats

the purpose of ESI discovery.

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Also, despite the significant attention the Court has provided this case umpiring discovery

matters thus far1, discovery continues to proceed at a snail's pace and Plaintiffs seek a Court hearing

or other intervention in order to provide direction on the Court's expectations concerning various

discovery issues raised herein and the necessary impacts on the scheduling order.

ARGUMENT

I. Baylor should be required to Bates label and produce all materials returned in ESI
searches utilizing the ordered terms unless they are legitimately protected by attorney client
privilege and appropriately logged.

The Court will recall that the parties entered into extensive negotiations concerning the

procedure, protocol, and search terms to be utilized to locate ESI. As a result of these negotiations,

the parties filed a joint advisory and agreed order (ECF 173). Thereafter, the Court signed the agreed

order (ECF 176) and briefing was submitted concerning disputed search terms and appropriate

redactions. The parties await the Court's direction on those matters.

In a recent effort of many to prod Baylor to increase pace of discovery progress, counsel have

again conferred concerning discovery issues. Last week, the parties conferred by telephone and, later

in person, at the deposition of a 30(b)(6) witness concerning technical aspects of Baylor's network and

computer systems. While discussing several other matters, Plaintiffs inquired as to when some Pepper

Hamilton (PH) materials would start being provided. There was also discussion of the pace of ESI

searches concerning the agreed terms and additional custodians. In this discussion, Plaintiffs' counsel

first learned that Baylor intends to review all materials returned in response to ESI searches for

relevancy and also, responsiveness to Plaintiffs' discovery.2 It was also then learned that Baylor did

not intend to sequentially Bates label all items returned in response to searches, therefore Plaintiffs

1
The Court ordered on August 1, 2017: "With the exception of this issue or others timely raised before
the Court, the Court expects production to proceed immediately and efficiently" ECF 158.
2
Baylor has indicated that it will produce the Pepper Hamilton material only withholding what Baylor
believes are protected attorney-client communication.
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Case 6:16-cv-00173-RP Document 196 Filed 09/20/17 Page 3 of 12

would have no idea which materials were withheld. Plaintiffs' counsel immediately objected to this

methodology and discussions proceeded on possible solutions, to little avail.3 The issue requires Court

resolution.

The first reason the Court should direct Baylor to sequentially number and produce all

materials returned in ESI searches (except those legitimately subject to attorney-client privilege and

adequately logged as such) is because doing anything else will long delay this case and defeat the

purposes of ESI discovery.

Another reason the Court should deny Baylor the opportunity to withhold responsive ESI

materials on the basis of relevancy is because the Court has already informed the parties in writing and

at oral hearing that it no longer would accept such objections.4 Finally, Baylor should not be

allowed to withhold these materials because the order, ECF 176, does not provide for it. Plaintiffs

would not have agreed to search terms and methods to limit the materials Baylor had to hand over.

Had Baylor provided meaningful production in response to written requests instead of providing

wholesale objections, it is possible that much of the ESI searches could have been avoided or limited.

Plaintiffs devised the ESI search process to wire around what was an overly limited view by Baylor of

what constitutes relevant material. Baylor had already proven that it would not hand over the most

3
Baylor has indicated as of the filing of this motion that it may agree to sequentially Bates label and
log withheld materials, but Baylor insists on withholding material based on Baylors interpretation of
responsiveness and relevance grounds.
4
The Court ordered: "Plaintiffs have also repeatedly expressed concern about Baylors arguments
regarding relevance. Specifically, certain arguments and suggestions made by Baylor indicate that it
seeks to only make available to Plaintiffs documents and information it deems relevant, not all
documents responsive to Plaintiffs production requests. To be clear, however, Baylor may not pick
and choose what documents it deems relevant to Plaintiffs claimsif it seeks to withhold any
documents or portions of documents subject to a discovery request from Plaintiffs due to relevance
absent an agreement with Plaintiffs, it must seek a protective order from this Court. Otherwise, all
documents responsive to the request must be produced in their entirety." ECF 146, p. 12. The Court
noted that its ruling, "does not pertain to Defendants objections based on claims of privilege." Id., fn.
3.
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damning materials even when they were responsive to Plaintiffs' RFPs. The search terms developed

were to augment Baylor's efforts to find responsive materials and prohibit Baylors attempt to self-

determine relevancy. Should the Court adopt Baylor's views on this issue, the Court would have to

believe that Plaintiffs intended and agreed to the whole ESI exercise in order to limit what Baylor

should have to produce rather than address Baylors historically inappropriate decisions on relevancy.

Essentially, what Baylor wants to do is avoid going through its materials to respond to production

requests, and instead agree to only provide materials both responsive and that happen to fall within

search terms. Plaintiffs did not and would not agree to such a position.

The Court should require ESI searches to begin in earnest and that Baylor should sequentially

label all returned materials, just as the Court's agreed order required. All of the labeled documents

should be produced except those documents to which Baylor has a legitimate claim of attorney-client

privilege, and those preserved only if adequately and thoroughly logged.5

II. The pace of discovery endangers the trial setting and, if not hastened would delay trial
late into 2018 and perhaps into 2019.

Over a year into the case and discovery has progressed no more than 10% of what is expected.

Two depositions have been taken and the remainder are on hold until meaningful document

production has occurred. Baylors responses to Plaintiffs' Requests for Production remain riddled

with boilerplate objections both globally and also to nearly every specific request, and Plaintiffs have

no idea which requests are actually being responded to or have been fully responded to. Baylor

continues to trickle out documents, but even those documents seem to be collected because of

searches Baylor has engineered in order mainly yield materials that it may want to support its defense.

5
Plaintiffs have acknowledged that search terms will result in some non-relevant material produced
(e.g. tart will likely result in catering menus being produced). But Plaintiffs will bear the burden of
sorting through the material, and the existing order provides a mechanism for Baylor to claw back
materials that are later deemed inappropriate for production.
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As the issue briefed in Section I above arose, counsel discussed that production of the Pepper

Hamilton materials concerning each custodian would begin and continue in earnest. As of this writing,

Plaintiffs have yet to receive any of the purported 450,000 Pepper Hamilton designated documents

and some 90,000 messages. Plaintiffs were told on August 7th that the first round of PH materials

would come in two weeks. When Plaintiffs' counsel followed up, Defendant's counsel stated that the

first few rounds of PH materials would come no later than the end of last week. Again, that deadline

came and went. The Court ordered PH related items produced on August 11 and not a page so

designated has yet been turned over. The rulings the parties await from the Court should not be

delaying the Pepper Hamilton production, as those rulings relate to the separate terms and custodians.

Moreover, Baylor's position that it plans to review each and every document returned in

response to ESI searches for responsiveness and relevance further endangers a reasonable discovery

schedule. If past is prologue, the painstaking review Baylor plans will result in a trickle of document

production even once it begins.

Furthermore, as noted in the recent briefing on redaction issues, Baylor's overly inclusive and

cautious redaction methods are likely to require constant attention from the Court. A review of the

volume and scope of redactions that Baylor makes reveals that it intends to force the Plaintiffs to

challenge each and every redaction, as task Plaintiffs do not relish troubling this Court with.

It is impossible for Plaintiffs to know the cause for Baylor's dilatory discovery responsiveness.

Baylor's leadership could have decided to slow roll the case in an effort to intentionally push back trial

and appeals. Or, Baylor may still not have enough resources devoted to discovery in the case.

Whatever the cause, the result is the same, and Court direction is necessary concerning expectations

on the pace of discovery.

Delay of this case has more effect than in the usual case. In all cases, delays increase costs and

anguish for the parties. Longer litigation often taxes the Court system. Changes in the law can

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sometimes require issues to be re-litigated. Numerous other negative externalities result. Yet, delay

in this case causes unique harms. Some of these Plaintiffs are forestalled from academic advancement

until they receive some relief. Other Plaintiffs cannot proceed with graduate education or other

programs. Meanwhile, bills mount for tuition and fees for these Plaintiffs who were deprived of their

side of the bargain. Interest and loan payments mount. On the emotional and mental side of the

personal ledger, some of these Plaintiffs proceed with recovery without sufficient resources for

adequate treatment. Baylor's slow rolling of this case exacerbates these Plaintiffs' harms and if Baylor

is not hastened, Baylor's conduct in discovery may become a necessary part of Plaintiffs' case at trial.

III. A recently produced document offers the Court an excellent example of the ongoing
discovery issues that require attention.

Attached as Exhibit A6 is an email chain from recently retired interim-President Dr. Garland.

Dr. Garland was ostensibly hired to clean up the sexual assault scandal 7 and implement the PH

recommendations. This Garland e-mail was likely only produced because Jane Doe 2s name

fortuitously appears in a separate email within the chain of communication (it is not within the Garland

email itself). This revelation demonstrates for one that Baylor needs to produce materials responsive

to Plaintiffs' actual Request for Production in addition to materials returned in ESI searches based on

Plaintiffs best analysis of appropriate search terms. Had not another email in the chain had Jane Doe

6s name, this Garland email would likely not have been gathered, certainly not at this point in the

case, despite the fact that the email goes to the core of senior administration attitude and culture when

it came to sexual assault. The fact that all documents which mentioned any Plaintiff by name have

still not been produced is remarkable in and of itself.8

6
Jane Doe 6 has been substituted for that Plaintiffs actual name and one identifying phrase has
been redacted in black.
7
See http://www.baylor.edu/mediacommunications/news.php?action=story&story=170207
8
More Jane Doe 9 and 10 records, including Title IX file materials were produced to Plaintiffs just
yesterday evening.
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In his email, Garland writes to Vice President of Student Life, Kevin Jackson,9 shortly after

Garland resumed his role as President for the third time. Garland relates an epiphany he had while

on the road to Waco from a Big XII meeting. It should be noted that, according to Garland's own

testimony in this case, in the summer of 2016, Garland had left his one and only first-hand briefing

by Pepper Hamilton of its investigation results to attend this Big XII meeting. See ECF 106-1 at pp.

111-14. While traveling back to Waco, Garland was listening to the Fresh Air radio program on NPR

and an interview with the author of the book BLACKOUT: REMEMBERING THE THINGS I DRANK TO

FORGET. The publicity blurb for this book mentions a young womans confessional about how

alcohol was the gasoline of all adventure.10 It should be noted that this same author of BLACKOUT

later spoke on the Baylor campus in 2017.11

First, Garland reconsiders the idea of personally meeting sexual assault victims, but decides it

best not to do this lest we have a constant stream of meetings. After expressing this preference not

to meet victims, and after taking a gratuitous shot at former President Kenneth Starrs statements to

ESPN, Garland remarks about listening to the Fresh Air interview and how it added another

perspective for me of what is going on in the heads of some women who may seem willingly to make

themselves victims. Having chosen to focus on Football and therefore leave the Pepper Hamilton

briefing where he might have actually learned real facts, Garland instead received insight into the

psyche of sexual assault victims from this random radio interview. His first thoughts are what was in

the minds of victims before their assaults, evidently supposing they were assaulted due to some use of

alcohol for purpose of adventure. Garland gives no thought to the assailants conduct, nor what is

going on with these women after having been assaulted. Consistent with the Boards Findings of

9
Baylor has indicated that Student Life encompasses the Counseling Center and Judicial Affairs.
10
See https://www.amazon.com/Blackout-Remembering-Things-Drank-Forget/dp/1455554588
11
See http://baylorlariat.com/2017/02/02/author-shares-about-novel-on-overcoming-alcoholism/
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victim blaming several months before (See ECF-93-3, Page 9), Garland continues to presume the

victims were at fault.

Just as troubling is the instant connection Garland makes in his mind and how this additional

perspective fits into his worldview, revealing engrained prejudice, sex based bias, and harsh

assumptions about young women in todays world. Garland immediately turns to Pauls Epistle to

the Romans (citing Verses 1:18 3:31, 5:1 - 7:25) to support his victim-blaming and a judgment from

Heaven perspective. Garland, who in deposition stated willful ignorance of the facts behind the

admitted failures, casually suggests how what has befallen these young women is Gods punishment

of their sins.

Starting at Verse 18, Romans 1 is literally wrath of God on godlessness and wickedness.

It discusses how God gave man over in the sinful desires of their hearts to sexual impurity for the

degrading of their bodies with one another, that God gave them over to shameful lusts. Even their

women exchanged natural sexual relations for unnatural ones, and that In the same way the men

also abandoned natural relations with women and were inflamed with lust for one another. Although

each is entitled to their own beliefs and interpretation of scripture, thankfully, leaders of publicly

funded institutions of higher education are prohibited from allowing those beliefs to result in the

discrimination of female students.

It is most telling and central to Plaintiffs claims that the University President charged with

cleaning up the cover-ups, victimization and multiple failures at Baylor would have first and foremost

on his mind, and would find most insightful, the additional perspective of alcohol use being an

adventure that made young Baylor students sinners, would conclude that these young women made

themselves willing victims of sexual assault, would then immediately find relevance in Gods wrath

upon on them in connection with their sinful desires, shameful lusts and unnatural sexual

relations. It is equally shocking that he would equate that the horrific events these young women have

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endured as somehow relevant to the passage in Romans that God will repay each person according

to what they have done.12 That this leap to judgment is made by the same man whose deposition

revealed willful and complete ignorance to the underlying issues at Baylor is evidence itself of the

conscious indifference of Baylor. Jackson, another individual central to these matters, responds that

these are encouraging words from Romans.

More to the point of this motion, the e-mail chain, its redactions, and the timing of its

production offer yet another lucent example of many of the problems with the current state of Baylor's

document production. Concerning redactions, the email contains an attorney-client redaction on page

two of the June 4, 2016 e-mails, which claims legal advice in connection with a survivors rally. What

little information is offered in the privilege log makes it impossible for Plaintiffs to confirm the

appropriateness of the redaction. Moreover, Baylor's behavior in discovery to date, including its

unbelievable position that the Buddy Jones e-mails were not relevant along with the scope of baseless

redactions to date, being caught withholding relevant documents earlier in this case, having just

withdrawn redactions on 68 pages out of 90 pages only on the eve of Court intervention, would cause

any reasonable opposing lawyer to question a redaction in an e-mail of this nature.13

12
Garlands statements conform to Chief Operating Officer Reagan Ramsowers claim that Baylor
victims have mental issues (i.e. what is going on in the heads ). Garlands citation of Romans
regarding wickedness and depravity falls close to Buddy Jones statements of equating alcohol use
with sexual promiscuity and deviancy. As far as Dr. Garland himself, he notes that he is quite at
peace over this and ha[s] been through a lot worse, harshly showing his failure to appreciate the
aftermath of sexual assault for a young Baylor student. He concludes that while in Romans God is
the one who took the steps to remedy the situation, directly indicating that the Baylor Board of
Regents, assumedly embodied in himself as the President charged with implementing
recommendations, is stepping in the shoes of God and taking the steps in the sexual assault scandal
at hand. Equating the Board of Regents as God is particularly consistent with Baylors handling of
this matter as it is presently known.
13
It can be noted that Baylor also just produced yet another internal document that shows David
Murdock met with Jane Doe 4 over a month prior to issuing sanctions upon her for alcohol use,
directly rebutting Baylors claims made twice, in both ECF 123 and 149, that Baylor knew nothing
about Jane Doe 4s assault before Murdock issued sanctions. There is no reason that all material
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The Garland email further highlights the limits of ESI searches. Although Plaintiffs believe

that the searches agreed to and those ordered by the Court will yield a significant amount of the

evidence that will ultimately be admitted at trial, Baylor should not be able to hide other responsive

materials. For example, the word victim* should catch Garlands email in a sweep, but "Pepper

Hamilton" would not, since Garland misspells it Ppper Hamilton. While Plaintiffs continue to play

litigation Battleship for search terms, the Dr. Garland e-mail further illuminates the need for Baylor

to fully respond to production requests and, at some reasonable point, certify that it believes it has

produced all responsive materials.

It is bad enough that the Garland's e-mail chain which mentions Jane Doe 6 was only produced

on September 8, 2017, some five months after Baylors discovery was due, but it is also four months

after Garlands deposition was taken, and this illustrates another problem. Plaintiffs are left in the

untenable position of holding off on depositions while the time for discovery under the current

scheduling order dwindles away. If Plaintiffs proceed with a deposition and communications are

revealed after the deposition, Baylor will surely argue that Plaintiffs have lost their chance to depose

the witness on the new documents. On Dr. Garland, Plaintiffs understood that taking his deposition

ten months into the case, but before meaningful document production had occurred, might raise this

issue, but Plaintiffs were trying to push along the case within the schedule entered. With this latest

production, Plaintiffs have no choice but to hold off on the vast majority of the needed depositions

until production is complete. As noted above, these delays impact the litigation schedule, and Baylors

actions and inaction result in an imposition of a de facto continuance in this case. It is Plaintiffs duty

to bring these issues to the Court so that it is aware of the impacts this process is having on the court

ordered schedule.

pertaining to Plaintiffs were not long ago turned over in one production, save for a few later located
materials. Instead, these items continue to come in unexplained, disjointed batches.
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CONCLUSION

For the foregoing reasons, Plaintiffs urge the Court (1) schedule a hearing or provide direction

on the discovery issues herein including and (2) order that all materials returned in ESI searches

utilizing the agreed and ordered terms, be produced to Plaintiffs regardless of Defendant's view of

whether the material is relevant or responsive to a Request for Production.

Respectfully submitted,

/s/ Chad W. Dunn_______________


BRAZIL & DUNN LLP
Chad W. Dunn
State Bar No. 24036507
K. Scott Brazil
State Bar No. 02934050
4201 Cypress Creek Pkwy., Suite 530
Houston, Texas 77068
Telephone: (281) 580-6310
Facsimile: (281) 580-6362
chad@brazilanddunn.com

DUNNAM & DUNNAM LLP


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

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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 September 20, 2017.

/s/Chad W. Dunn
CHAD W. DUNN

CERTIFICATE OF CONFERENCE

This is to certify that multiple conferences between counsel have occurred concerning the

subjects raised in this motion. Counsel have discussed these issues by e-mail, by telephone and in

person, on multiple occasions.

/s/Chad W. Dunn
CHAD W. DUNN

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