Baylor Case: Public Statements Can Waive Privilege

Baylor University was concerned that it was not in full compliance with federal law relating to complaints of sexual harassment and violence. Baylor also expected litigation.  Baylor’s Board of Regents hired the Pepper Hamilton law firm to investigate Baylor’s procedures, policies and other “institutional response” aspects of Baylor’s compliance obligations.  Baylor and Pepper Hamilton agreed that all material prepared and communications made by Baylor and the law firm in the course of Pepper Hamilton’s review would be privileged.

Public Statements Waived Privilege

Recently, a Court ruled that Baylor’s repeated public statements, which released the findings and conclusions in Pepper Hamilton’s report, although not intended to waive the privilege, did indeed waive the privilege as to materials, communications, and information provided to Pepper Hamilton as part of the investigation.

The waiver was only partial; the disclosures did not waive the privilege as to documents that Pepper Hamilton prepared as part of the investigation and that have not been released.

Investigations Are Generally Privileged

Companies, schools, and other institutions often commission outside law firms to conduct investigations to assist in compliance and to prepare for expected litigation. The Court stated that Baylor engaged Pepper Hamilton in order to better understand Baylor’s legal obligations and liabilities, so that communications between Baylor and Pepper Hamilton were generally privileged.

The Court went on to say that Baylor could waive that privilege, and in this case, did, at least to a significant extent.

Disclosure Causes Waiver

In general, disclosure of any significant part of a confidential communication waives the privilege as to all of the communication. Baylor made multiple disclosures, both in public statements and in documents filed in other court cases, about what Baylor and its employees told Pepper Hamilton, and what advice Baylor received from Pepper Hamilton.  These voluntary disclosures by Baylor were sufficient to waive the privilege as to information provided to Pepper Hamilton.

Pepper Hamilton’s Work Product Remains Protected

While the Court found waiver as to what Baylor and its employees communicated to Pepper Hamilton, the Court did not find waiver as to memoranda, notes, emails, presentations, and other documents that Pepper Hamilton prepared as part of the investigation, as long as these had not otherwise been released. Other information that might disclose Pepper Hamilton’s thought processes or impressions, such as a listing of the documents that Pepper Hamilton chose to show to an interviewee, the recordings of interviews that it made, or interview notes by Pepper Hamilton, also remained protected by privilege.

Documents that show a lawyer’s thought processes or mental impressions are “work product” and are generally subject to even more stringent protection, at least when litigation is ongoing or expected. The Court determined that Baylor’s disclosures were not so great as to cause waiver of the work product privilege.

Investigations Can Be Privileged, but the Privilege Can Be Waived

This case shows that investigations by lawyers, when structured correctly, can cloak communications to and from the lawyers with privilege.

It also is a reminder that those who commission such investigations should think about how any report or recommendations might eventually be used. If releasing findings and recommendations is a possible outcome, waiver of some or all of the privilege should also be expected.

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