Bradley attorney Todd Presnell was quoted in the Law360 on a recent ruling that meant a loss of attorney-client privilege for Baylor University in a Title IX case. U.S. District Judge Robert L. Pitman considered overlapping arguments on attorney-client and work-product privilege, invoking the subject-matter doctrine as part of a conclusion that even “selectively disclosed” confidential information warranted a loss of protection for “all materials, communications, and information provided to Pepper Hamilton” as part of the probe.
Courts have taken a wide variety of tacks, often highly fact-specific, on questions of subject-matter waivers, according to Presnell. In the context of an internal investigation and a high-profile scandal like Baylor’s, the uneven case law on what triggers subject-matter waivers, and the scope of the information included, is fair warning that a “draconian” waiver finding is a real possibility, he said.
Presnell noted that the judge in the Baylor case rejected the school’s argument that, because the reports were created expressly for public release, they couldn’t reveal otherwise confidential communications and therefore trigger a waiver.
“This case teaches you to be cautious if the client wants to use any investigation results offensively as part of a public relations strategy, then there is going to be some risk of loss of privilege,” Presnell said. “Not all courts will apply that kind of thinking in all cases ... but here the court did, and now Baylor is going to have to turn over things it might not have had to.”
The complete article, “Baylor Privilege Loss Sends Warning On Internal-Probe Risks,” appeared in Law360 on September 1, 2017. (login required)