In Doe v. Baylor University, No. 16-CV-00173-RP (W.D. Tex. Aug. 11, 2017), the court held that defendant, Baylor University, waived the attorney-client privilege with respect to outside counsel’s investigation materials, but that work product protections remained intact with respect to undisclosed investigation work product.  In this matter, Baylor hired outside counsel to conduct an “independent and external review” of the university’s response to Title IX and related compliance issues.  Following completion of the investigation, Baylor released two documents that summarized in detail the factual findings by outside counsel, and counsel’s recommendations to Baylor.  In addition, in a filing made by Baylor in related litigation, Baylor quoted text messages and paraphrased conversations among Baylor personnel regarding alleged sexual criminal conduct by football players reported to athletic staff.  Baylor explained in the filing that all facts and evidence discussed in the filing had been revealed by counsel’s investigation.  Plaintiffs sought discovery of investigation related work product, arguing: (1) the investigation was not privileged in the first instance; and (2) Baylor waived the attorney-client privilege through its repeated public disclosures.  The court found that Baylor was seeking legal advice when it engaged outside counsel, therefore investigation materials were privileged in the first instance.  The court noted that, although the engagement letter did not refer to “legal advice,” “there is no magic phrase that must be included in an engagement letter to invoke the attorney-client privilege.”  The court explained that the letter indicated that Baylor engaged counsel to review its compliance with federal law, which was a request for legal advice.  The court also credited declarations submitted by Baylor’s in-house and outside counsel that supported the legal nature of the investigation.  The court then held that Baylor’s repeated and detailed disclosures of the results of the investigation, including through affirmative use in litigation, went beyond merely disclosing non-privileged facts and waived the attorney-client privilege over undisclosed investigation materials prepared by counsel.  However, the court held that the work product doctrine continued to protect those very same materials.  The court found that the work product protection applied, because Baylor engaged counsel in response to the threat of litigation.  In addition, the court held that Baylor had not waived protection over undisclosed work product, because the scope of waiver of the work product doctrine generally applies only to the work product disclosed and not to undisclosed work product.  However, the court noted that Baylor would risk waiving work product protections if it later asserted advice of counsel as an affirmative defense in the case.