Last week’s Privilege Point described a decision that allowed plaintiff to rely on a market survey without disclosing “communications relating to the survey’s design, administration, or results.” Austin’s National Frozen Pops, Inc. v. Jonny Pops, LLC, No. 1:24-CV-00716-RP, 2025 U.S. Dist. LEXIS 181286, at *3 (W.D. Tex. Sept. 15, 2025).
The court analogized plaintiff’s reliance on its survey to Baylor University’s situation in an unrelated case. There, defendant Baylor relied on Pepper Hamilton’s investigation into the university’s “institutional policies and responses” to alleged sexual assaults — noting that “Baylor had not ‘directly invoked Pepper Hamilton’s work as a defense’ ” and that Baylor’s answer “include[d] no reference to the [law firm’s] investigation.” Id. at *7-8 (first alteration in original). The Baylor decision was Doe v. Baylor University, 320 F.R.D. 430 (W.D. Tex. 2017) [Baylor I].
In an analysis helpful to any client in this situation, the Austin’s court then contrasted the first Baylor decision with a later decision in the same case reaching a strikingly different conclusion, Doe v. Baylor University, 335 F.R.D. 476 (W.D. Tex. 2020) [Baylor II]. The Austin’s court explained that “[l]ater in that same case” Baylor (1) “began ‘repeatedly’ invoking [Pepper Hamilton’s] investigation,” (2) “had specifically point[ed] to the Pepper Hamilton investigation … to assert that Baylor was not deliberately indifferent or intentionally discriminatory,” and (3) “repeatedly pointed to the investigation itself in order to ‘negate liability or support a defensive claim.’ ” 2025 U.S. Dist. LEXIS 181286, at *8 (second alteration in original) (citations omitted). Thus, “because Baylor could not ‘separate its investigation and reform efforts from Pepper Hamilton’s, Baylor’s proposed defensive case explicitly relies on Pepper Hamilton’s work product’ ” and therefore waived that protection. Id. at *8-9 (citation omitted).
Any litigant relying on a market survey or an outside law firm’s investigation would be wise to heed this careful distinction between steps that can help preserve its privilege and work product protections and steps that might waive them.