*1 On April 26, 2021, United States Magistrate Judge Andrew W. Austin issued an order granting in part and denying in part Plaintiffs' Motion for Sanctions Related to the UnitedLex Findings, (Dkt. 904). (Order, Dkt. 941). Before the Court are Baylor's Objections Regarding Magistrate Judge Austin's April 26, 2021 Order, (Dkt. 947), Plaintiffs' Response, (Dkt. 960), Baylor's Reply, (Dkt. 966), and Plaintiffs' Advisory Regarding ECF 947, (Dkt. 985). Having reviewed the parties' briefs, the record, and relevant law, the Court will deny Baylor's objections.

In 2019, the United States Magistrate Judge Andrew W. Austin proposed that Baylor produce all Pepper Hamilton documents—and then exercise a clawback of privileged documents—because of the size and complexity of the production and because of Baylor's ongoing discovery conduct. (Dkt. 653, at 35). Baylor objected and proposed, in the alternative, to retain a third-party vendor to conduct a comparison and audit of the Pepper Hamilton production to confirm that Baylor had, as it claimed, already produced all responsive materials. (See Dkt. 672). The Court agreed to Baylor's plan. (Dkt. 667). The parties retained UnitedLex to conduct the review, with Baylor bearing the cost. (Id. at 2).

As set out in Judge Austin's Order, UnitedLex issued a series of findings. (Dkt. 941, at 2–3). In summary, in each report, UnitedLex found problems with Baylor's production, including tens of thousands of missing documents. (Id.). In its final report and after conducting a third, by-hand comparison, UnitedLex still found 12,129 documents that did not match any documents previously produced by Baylor. (Id. at 3).

A few months later, Plaintiffs filed their Motion for Sanctions largely based on UnitedLex's findings. (Dkt. 904). Plaintiffs requested “severe” sanctions: “(a) an instruction informing the jury that Baylor attempted to hide materials during discovery and allowing the jury to presume those efforts were successful in preventing production of at least some damaging materials; (b) an order directing that all of the documents provided by Pepper Hamilton to UnitedLex be produced to Plaintiffs, designated “Attorneys' Eyes Only” and limiting Baylor to only being permitted to object to their admission at trial based on privilege; (c) an order that Baylor pay all costs of travel and court reporter or video costs for any deposition reconvened based on documents ordered produced herein; (d) a finding that Baylor may no longer withhold document production based on privilege nor obstruct deposition testimony based on privilege; (e) imposition of a daily fine until Baylor complies with the Court's order; and (f) an award of sanctions in an amount equal to what Baylor has paid UnitedLex to date.” (Order, Dkt. 941, at 3–4) (citing Dkt. 904, at 11).

Judge Austin's Order began: “Discovery in this case has posed countless challenges for the Court.” (Id. at 1). It continued: “And when it comes to raising privilege objections, in doing so Baylor has been as aggressive as any party the Court has encountered. The end result is that discovery has dominated this case for years and has made it take far longer and cost far more than it needed to.” (Id. at 1–2). Relying on Federal Rule of Civil Procedure 37, Judge Austin entered sanctions against Baylor for its recurring discovery violations, carefully considering the nature of the Baylor's conduct in comparison with the sanctions requested by Plaintiffs. In his Order, Judge Austin found that “Baylor did not engage in the type of actionable misconduct that would merit the type of sanctions Plaintiffs request.” (Id. at 4–5). Judge Austin was “satisfied with the detailed explanations Baylor has provided for the vast majority of the discrepancies identified by UnitedLex's audit.” (Id. at 5). However, Judge Austin took issue with (1) Baylor's “repeated[ ]” assurances that it had produced all responsive material [and its] numerous certifications to this effect” were “at best inaccurate,” and (2) Baylor's failure to meet discovery “deadline after discovery deadline set by the Court.” (Id.). All the while, Baylor “repeatedly challenged UnitedLex's conclusions,” which Plaintiffs argued was “inconsistent with the entire purpose of the UnitedLex exercise.” (Id. at 6). While the parties disputed the number of missing documents, Judge Austin found that the “UnitedLex review demonstrates that there is a universe of documents—whether it is 1,793 or 8,069—that Baylor should have produced or logged years ago, and those documents were only discovered by the UnitedLex audit.” (Id. at 7). Based on Baylor's repeated failures to timely respond to production requests and Baylor's failure to heed the Court's repeated warnings, Judge Austin concluded that Baylor had waived its objections and claims of privilege. (Id.).

*2 Specifically, Judge Austin ordered Baylor to produce 1,793 documents without redaction that it did not contest were not produced or logged prior to the UnitedLex audit. (Id. at 9). For the additional 6,276 documents in dispute, Judge Austin ordered:

(Id. at 9–10).

Finally, Judge Austin noted that Baylor chose to proceed with a third-party audit, rather than to produce all documents and claw back privileged documents, and now is dissatisfied with the result—both UnitedLex's findings that Baylor failed to produce documents and the significant cost borne by Baylor by using a third-party vendor. (Id. at 10).

After holding an additional hearing on May 7, 2021, Judge Austin issued an order regarding the remaining 815 documents from UnitedLex's review that Baylor had categorized as “newly logged” or “newly produced.” (Order, Dkt. 953). Baylor did not object to producing the documents, except for one category of documents that were in binders prepared by Pepper Hamilton to prepare for visits to Baylor and to interview witnesses. (Id. at 2). Judge Austin found that Baylor appropriately logged those documents.[1] (Id.).

*3 A district judge may reconsider any pretrial matter determined by a magistrate judge where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). District courts apply a “clearly erroneous” standard when reviewing a magistrate judge's ruling under the referral authority of that statute. Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). The clearly erroneous or contrary to law standard of review is “highly deferential” and requires the court to affirm the decision of the magistrate judge unless, based on the entire evidence, the court reaches “a definite and firm conviction that a mistake has been committed.” Gomez v. Ford Motor Co., No. 5:15-CV-866-DAE, 2017 WL 5201797, at *2 (W.D. Tex. Apr. 27, 2017) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The clearly erroneous standard “does not entitle the court to reverse or reconsider the order simply because it would or could decide the matter differently.” Id. (citing Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015)).

In its appeal, Baylor raises three objections: (1) Judge Austin's Order required a finding of bad faith and prejudice to Plaintiffs; (2) Baylor should not be required to submit 4,200 previously logged documents to UnitedLex for comparison; and (3) Judge Austin's Order disallows Baylor from following FERPA procedures. (Objs., Dkt. 947). The Court will consider whether any of these grounds of appeal establish that Judge Austin's Order was clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A).

A. No Clear Error in Imposing Sanctions for Discovery Violations Under Rule 37

The Court starts with Baylor's objection to Judge Austin's imposition of a sanction for its repeated discovery violations. Arguing that Judge Austin's Order did not follow the standard for “imposing the severe sanction of privilege waiver,” Baylor relies on an unpublished Fifth Circuit opinion that states a court “should consider the following factors: (1) the reasons why the disclosure was not made; (2) the amount of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a continuance of trial; and (4) any other relevant circumstances.” (Objs., Dkt. 947, at 8) (citing Bennett v. GEO Grp., Inc., Nos. 12-60017, 12-60348, 2013 WL 5916765, at *4 (5th Cir. 2013) (unpublished)). This Court finds that Judge Austin did not clearly err by not explicitly following an unpublished opinion. Moreover, Judge Austin's Order did consider those factors—why Baylor had not produced the documents, how Baylor's repeated failures have delayed discovery for not just months but years (impliedly making a continuance of trial an unworkable option), and many other relevant circumstances as detailed in the Order. This Court concurs. Baylor has abused the discovery process, and their abuse has caused years of delay as chronicled in many court orders. “Plaintiffs' counsel have expended hundreds upon hundreds of attorney hours seeking to unravel Baylor's false certifications and inadequate production and logging.... Plaintiffs have been hamstrung for years because of Baylor's discovery abuses.” (Resp., Dkt. 960, at 18). Baylor's continued discovery failings and delays have not only slowed, if not halted, discovery but also made it nearly impossible to move these cases towards trial.

After making his findings, Judge Austin also carefully considered Plaintiffs' requests for “severe” sanctions, rejected those sanctions, and chose a less severe sanction that was appropriately tailored to the violation. Judge Austin did not enter a death penalty sanction. Indeed, far from being permanent, the sanction imposed still allows Baylor to object to the admission of these documents at trial and keep the documents from the jury. He also declined to impose any monetary sanction. While this Court likely would not have found a harsher sanction to be clearly erroneous, the sanction imposed was just and proportionate.

*4 Finally, Baylor presents no persuasive case law support for its contention that Judge Austin was required to make a finding of bad faith to impose a sanction under Rule 37. In fact, Baylor misquotes a Fifth Circuit case to support its contention.[2] Baylor's brief states: “Thus, the severe sanction of waiver of privilege is appropriate in cases of ‘unjustified delay, inexcusable conduct, and bad faith.’ ” (Objs., Dkt. 947, at 9) (quoting Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (emphasis added)). In that case, the Fifth Circuit states, in full: “Continual failure to adhere to Rule 26's prescription may result in waiver of the privilege where a court finds that the failure results from unjustified delay, inexcusable conduct, or bad faith.” BDO USA, L.L.P., 876 F.3d at 697 (emphasis added). The actual language from the BDO USA case aligns with Rule 37's grant of broad discretion to find a privilege waiver, as observed by the Fifth Circuit. See Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019) (“[Rule 37] allows a district court to impose sanctions when a party fails to comply with a discovery order, and the court has broad discretion in fashioning a sanction when it does so.”); Chilcutt v. United States, 4 F.3d 1313, 1322 n.23 (5th Cir. 1993) (“[N]either this Court nor the Supreme Court has ever determined that the lack of willful, contumacious, or prolonged misconduct prohibits all sanctions.”). Thus, this Court finds that Judge Austin's Order was not clearly erroneous in imposing a sanction of privilege waiver against Baylor for its repeated discovery violations.

B. Additional Documents for UnitedLex's Comparison Procedure

Baylor objects to the portion of the Order that states:

(Order, Dkt. 941, at 9–10). Baylor “does not object to the overall process” but believes it should be able to provide 515 new documents for UnitedLex's comparison. Plaintiffs did not appear to address this particular issue in their response to Baylor's objections. In light of there being no opposition, Baylor may provide additional documents to UnitedLex only if those documents were previously logged or previously produced to Plaintiffs. If problems continue to arise from this subset of 515 documents, the Court will be skeptical and err on the side of ordering production. Baylor also objects that UnitedLex's findings should not be conclusive because UnitedLex may make errors. This is a potential problem created by Baylor, not clear error by the Court. Baylor chose to have a third-party vendor audit its production rather than producing all of the documents and then clawing back privileged documents. Baylor cannot now unwind that process, even if it is imperfect.

C. Student Records Subject to FERPA

Baylor objects that Judge Austin's Order requires Baylor to produce unredacted documents that are educational records to subject to FERPA protections. (Objs., Dkt. 947, at 17–19). Baylor argues it cannot comply with the Order and with FERPA. (Id. at 17). Baylor requests that “Baylor and UnitedLex not be required to re-produce any documents that have been already produced with pseudonym redactions.” (Id. at 19). Plaintiffs state that they would accept documents “with personal identifiers anonymized,” but that Baylor did not make that request. (Resp., Dkt. 960, at 19). Moreover, according to Plaintiffs, when there is a conflict between FERPA and Title IX requirements, Title IX controls. (Id. at 19–20). To the extent that Baylor has not issued FERPA notices since filing its objections, Baylor shall immediately proceed with issuing FERPA notices. If the former student objects, this Court will rule on their objection. Baylor shall produce, unredacted and without delay, any and all documents for which the FERPA notice does not generate an objection and for any and all documents for which the Court denies the objection. Alternatively, if the parties can reach an agreement, as suggested by Plaintiffs, then Baylor may produce redacted documents or documents with personal identifiers anonymized. Because it is unclear whether Judge Austin's Order demanded that Baylor not comply with FERPA, this Court neither grants nor denies Baylor's objection and, instead, clarifies Judge Austin's Order.

*5 For these reasons, IT IS ORDERED that the Court GRANTS IN PART and DENIES IN PART Baylor's Objections Regarding Magistrate Judge Austin's April 26, 2021 Order, (Dkt. 947), and AFFIRMS IN PART and REVERSES IN PART Judge Austin's Order, (Dkt. 941). Specifically, the Court denies Baylor's objection that the sanction was improperly imposed. The Court grants Baylor's objection regarding providing new documents to UnitedLex and allows Baylor to provide the 515 additional documents to UnitedLex, provided that those documents were previously logged or produced. Finally, the Court clarifies Judge Austin's order as it relates to student records. For any remaining unredacted student records that require a FERPA notice, Baylor shall send FERPA notices immediately. In the event no FERPA objection is filed or, if a FERPA objection is filed but the Court denies the objection, Baylor shall immediately produce the unredacted student record.

IT IS ORDERED that Baylor produce documents, except for student records subject to FERPA objections, in accordance with this Order on or before February 15, 2022.

IT IS FINALLY ORDERED that, if applicable, Baylor shall immediately initiate the FERPA process for any remaining unredacted student records. The Court continues to rule on pending objections.

SIGNED on February 8, 2022.