Doe 1 v. Baylor Univ.
Doe 1 v. Baylor Univ.
2019 WL 13253800 (W.D. Tex. 2019)
April 16, 2019
Pitman, Robert, United States District Judge
Summary
The Court reviewed five documents in camera and determined that none of them contained privileged communications or attorney work product. As a result, both Baylor and Ketchum must produce all materials in their custody and control in response to Plaintiff's discovery requests.
Additional Decisions
Jane DOE 1, et al., Plaintiffs,
v.
BAYLOR UNIVERSITY, Defendant
v.
BAYLOR UNIVERSITY, Defendant
6:16-CV-173-RP, Consolidated with 6:17-CV-228-RP, 6:17-CV-236-RP
United States District Court, W.D. Texas, Waco Division
Signed April 16, 2019
Counsel
Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, Eleeza Nickole Johnson, Andrea Michelle Mehta, James R. Dunnam, Dunnam & Dunnam, LLP, Waco, TX, George (Tex) Quesada, Jody Rodenberg, Laura Benitez Geisler, Sean J. McCaffity, Sommerman McCaffity Quesada & Geisler, LLP, Dallas, TX, K. Scott Brazil, Brazil & Dunn, Houston, TX, for Plaintiffs 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, Jane Doe 10, Jane Doe 11.Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, Eleeza Nickole Johnson, Andrea Michelle Mehta, James R. Dunnam, Dunnam & Dunnam, LLP, Waco, TX, George (Tex) Quesada, Jody Rodenberg, Laura Benitez Geisler, Sean J. McCaffity, Sommerman McCaffity Quesada & Geisler, LLP, Dallas, TX, for Plaintiffs Jane Doe 12, Jane Doe 13, Jane Doe 14, Jane Doe 15.
Geoffrey D. Weisbart, Julie A. Springer, Mia A. Storm, Sara E. Janes, Danielle K. Hatchitt, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Matthew A. Reed, Ryan Hewlett Newman, Thompson & Horton, L.L.P., Houston, TX, for Defendant Baylor University.
James R. Dunnam, Dunnam, Dunnam, etal, Waco, TX, K. Scott Brazil, Brazil & Dunn, Houston, TX, Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, for Plaintiff Jane Doe 11.
Geoffrey D. Weisbart, Julie A. Springer, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, Lisa Ann Brown, Thompson & Horton LLP, Houston, TX, for Defendant Baylor University.
Chad W. Dunn, Brazil & Dunn, LLP, Austin, TX, James R. Dunnam, Dunnam, Dunnam, etal, Waco, TX, for Plaintiffs Jane Doe 12, Jane Doe 13, Jane Doe 14, Jane Doe 15.
Geoffrey D. Weisbart, Julie A. Springer, Sara E. Janes, Weisbart Springer Hayes, LLP, Austin, TX, Holly Gene McIntush, Thompson & Horton, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Thompson & Horton, L.L.P., Houston, TX, for Defendant Baylor University.
Pitman, Robert, United States District Judge
ORDER
*1 Ketchum, Inc. is a communications consultancy that provides public relations advice. Baylor University hired Ketchum in September 2015 to provide advice on Title IX and campus sexual assault. Plaintiffs seek production of certain materials produced during Ketchum's work for Baylor (the “Ketchum materials”). Baylor has already produced some of them. The question before the Court is whether certain remaining Ketchum materials are privileged as a type of attorney-client communication or attorney work product.
Plaintiffs first issued a subpoena to Ketchum on June 27, 2017. (Ketchum Subpoena, Dkt. 131). The parties have since addressed production of the Ketchum materials in a number of submissions, including Baylor's Brief in Support of Privilege-Related Redactions, (Dkt. 182), Plaintiffs’ Response, (Dkt. 188), Plaintiffs’ Motion to Compel, (Dkt. 250 at 7–8), Baylor's Response, (Dkt. 256, at 10), and Plaintiffs’ Reply, (Dkt. 264, at 5). The Court held a hearing addressing Plaintiffs’ Motion to Compel various disputed items on May 7, 2018. During the hearing, the Court granted the motion in part, but did not resolve production of the Ketchum materials. (See Dkt. 307). On July 11, 2018, Plaintiffs filed a Suppemental Motion, (Dkt. 426), to re-urge the issue before the Court. The parties then filed responsive briefing. (Dkts. 434, 447). Ketchum itself has not appeared in this case at any time. Based on the parties’ submissions, the relevant law, and the record in this case, the Court find that none of the materials are privileged.
I. LEGAL STANDARD
Discovery is outside the scope permitted by the Federal Rules of Civil Procedure if the discovery sought is (1) privileged; (2) not relevant to any party's claims or defense; or (3) not “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If the Court finds that the discovery request seeks privileged material, the Court may issue a protective order. See Fed. R. Civ. P. 26(c). Furthermore, it is well established that “[m]atters relating to discovery are committed to the discretion of the trial court.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 347 (5th Cir. 2004).
“A party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability.” In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001). “A general allegation of privilege is insufficient to meet this burden.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004). Instead, “[t]he proponent must provide sufficient facts by way of detailed affidavits or other evidence to enable the court to determine whether the privilege exists.” Id. “The burden is on the party asserting the privilege to demonstrate how each document satisfies all the elements of the privilege.” S.E.C. v. Brady, 238 F.R.D. 429, 439 (N.D. Tex. 2006) (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)) (evaluating both attorney-client privilege and work product privilege).
A. Attorney-Client Privilege
*2 The attorney-client privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). This privilege “rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.” Id. (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). While the attorney-client privilege extends to all situations in which counsel is sought on a legal matter, it protects “only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). In other words, the communication must be made “in confidence for the purpose of obtaining legal advice from the lawyer” to fall within the scope of the privilege. United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982); see also United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (“The party asserting that communication is protected by the privilege must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing a legal opinion or legal services, or assistance in some legal proceeding.”). “Hence, the privilege does not protect documents and other communications simply because they result from an attorney-client relationship.” S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex. 2009). “Moreover, courts generally construe the privilege narrowly because ‘assertion of privileges inhibits the search for truth.’ ” Id. (citing Navigant, 220 F.R.D. at 477).
B. Work Product Privilege
Work product typically constitutes “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ... including the other party's attorney.” Fed. R. Civ. P. 26(b)(3). To assert work product privilege, a party must show: “(1) the materials sought are documents or tangible things; (2) the materials sought were prepared in anticipation of litigation or for trial; (3) the materials were prepared by or for a party's representative; [and] (4) if the party seeks to show that the material is opinion work product, that party must show that the material contains the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.” Brady, 238 F.R.D. at 441 (citing Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 136 (E.D. Tex. 2003); Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 873 (5th Cir. 1991)).
In the Fifth Circuit, work product privilege “can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting El Paso Co., 682 F.2d at 542). “[F]actors relevant to determining the primary motivation for creating a document [include] the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance.” Navigant Consulting, 220 F.R.D. at 477 (internal quotations omitted). “[T]he work product doctrine insulates a lawyer's research, analysis of legal theories, mental impressions, notes, and memoranda of witnesses’ statements from an opposing counsel's inquiries.” Dunn, 927 F.2d at 875.
II. DISCUSSION
Baylor University hired Ketchum in September 2015 to provide advice on Title IX and campus sexual assault. Plaintiffs contend that the Ketchum materials are relevant to their claim that Baylor's response to reports of sexual assault violated Title IX, (Supp. Mot., Dkt. 426, at 2), and to Baylor's defense that it adopted meaningful reforms beginning in 2015, (Mot. Compel, Dkt. 250, at 7). To date, Baylor has worked with Ketchum to produce at least 75 documents to Plaintiffs. (Resp. Mot. Compel, Dkt. 256, at 11). The record indicates that Ketchum itself has not produced any documents to Plaintiffs. (See Mot. Compel, Dkt. 250, at 7).
Baylor seeks to partially redact five documents and has submitted them for in camera review. (See Redacted Exhibits A-7–11, Dkt. 182-2; Sealed Exhibits, Dkt. 186). Baylor contends that the redacted lines are privileged attorney-client communications and attorney work product because Ketchum provided Baylor's Office of General Counsel with services essential to its legal representation of Baylor and, as Baylor argues, Ketchum personnel were “functional employees” of Baylor and therefore acted as agents of Baylor's counsel. (Baylor Privilege Br., Dkt. 182, at 7–10). Baylor's contract with Ketchum also included a provision that Ketchum was hired “for the purposes of assisting [Baylor's Office of General Counsel] in giving legal advice ... and assisting [Baylor] in anticipation of litigation.” (Id. at 7). Plaintiffs disagree and point to testimony by former University President David Garland, who testified that Ketchum “primarily worked through the Vice President for Communications.” (Pls.’ Resp. Privilege Br., Dkt. 188, at 3 (citing Garland Dep., Dkt. 106-1, at 189–91)). Regardless of Baylor's general purpose in hiring Ketchum, Baylor must show that a privilege applies for each document or communication it seeks to withhold. See Brady, 238 F.R.D. at 439 (citing Hodges, 768 F.2d at 721).
*3 Neither party offers any Fifth Circuit authority addressing whether communications with a public relations firm may be subject to attorney-client privilege or work product privilege. Although Baylor analogizes to the accountant-client privilege adopted by some courts, the Fifth Circuit “does not recognize an accountant/client privilege.” United States v. Richardson, 106 F.3d 396 (5th Cir. 1997) (citing El Paso, Co., 682 F.2d at 540). Seeing no legal basis to extend the privilege to Baylor's communications with a PR firm, the Court proceeds with the traditional analysis for attorney-client privilege and work product privilege.
The Court has reviewed unredacted versions of the five disputed documents in camera. The Court makes the following determinations for each of the five documents. Based on the Court's review, none appear to have been drafted by legal counsel.
Exhibit A-7 is an email from the Baylor Associate VP for Marketing Communications to the Baylor VP of Student Life, copying Associate General Counsel Christopher Holmes. The email “lays out detailed advice from Ketchum regarding [the VP of Student Life's] testimony before the Texas Legislature regarding Baylor's response to allegations of sexual assault. (Baylor Privilege Br., Dkt. 182, at 9). The email provides media strategy only. It does not request or reference legal advice or otherwise indicate that a purpose of the email is legal advice. It makes no reference, express or implied, to anticipated litigation. The only legal significance of the email is that Baylor's Associate General Counsel was copied on the exchange. Although one goal of PR advice may include general avoidance of litigation, this email goes no further than that general goal. Exhibit A-7 is not privileged.
Exhibit A-8 is an email from the Baylor Associate VP for Marketing Communications to Ketchum representatives, Baylor's Associate General Counsel, and other Baylor personnel. It “lays out strategic information for consideration by in-house counsel and its agent[s] regarding the potential impact of media communications on anticipated litigation against Baylor.” (Baylor Privilege Br., Dkt. 182, at 10). Like Exhibit A-7, this email merely copies Baylor's Associate General Counsel on an exchange discussing media strategy. The email discusses recent media coverage and plans to discuss Baylor's response with Ketchum. There is no indication that the primary purpose of the email was legal advice or that the email was prepared in anticipation of litigation. Exhibit A-8 is not privileged.
Exhibit A-9 is an email from the Baylor Associate VP for Marketing Communications to various Baylor personnel, including Baylor's Associate General Counsel and Ian McCaw. (Baylor Privilege Br., Dkt. 182, at 10). The email proposes a response to a media inquiry. It is possible to infer from the text of the email that the purpose of the proposed response was to seek approval from Baylor's Associate General Counsel. But that is not explicit and three non-legal Baylor personnel are copied on the email. It is equally plausible that the purpose of the communication was to discuss public relations strategy. The attorney-client privilege extends “only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” Fisher, 425 U.S. at 403. Here, the evidence indicates that this communication likely would have been identical even if Baylor's Associate General Counsel was not copied on the email. Moreover, it is implausible that the primary purpose of the proposed statement was to avoid litigation. Exhibit A-9 is not privileged.
*4 Exhibit A-10 is an email from a Ketchum VP to three non-legal Baylor personnel and three Ketchum personnel. (Baylor Privilege Br., Dkt. 182, at 10). The email is not sent from or addressed to any legal counsel. In the email, the Ketchum VP suggests that Baylor's Associate General Counsel could advise Ketchum on factual inaccuracies in recent media coverage. This is a request for factual information, not legal advice. There is also no evidence in the email of the ancitipation of litigation. Exhibit A-10 is not privileged.
Exhibit A-11 is an email from Baylor's Assistant VP for Internet Services & Associate VP for Electronic Marketing Communications to Ketchum consultants, Baylor's Associate General Counsel, and several other Baylor employees. (Id.). In the email, the Assistant VP for Internet Services provides factual information about an upcoming prayer vigil for victims of sexual assault planned by students and former students, including Jane Doe 8. Baylor submits that the factual information provided was “necessary for [Associate General Counsel] Holmes and Ketchum to provide legal advice and strategy regarding communications.” However, there is no indication in the email that there is any legal dimension to the communication. The General Counsel is merely copied on an email along with six other Baylor staff. Exhibit A-11 is not privileged.
The Court concludes that none of the exhibits above contain privileged communications. Baylor has not asserted privilege for any other Ketchum communications or materials. Both Baylor and Ketchum must therefore produce all materials in their custody and control in response to Plaintiff's discovery requests.
III. CONCLUSION
Plaintiffs’ Motion to Compel with respect to the Ketchum Materials, (Dkt. 250 at 7–8), and Supplemental Motion to Compel Ketchum Materials, (Dkt. 426), are GRANTED in accordance with this Order.
Baylor and Ketchum are ORDERED to (1) produce unredacted versions of all materials in response to the subpoena, including the five exhibits specifically addressed in this order, and (2) file a notice with this Court certifying that production to Plaintiffs is complete no later than May 7, 2019. A joint notice would satisfy this requirement.