Available from the NYT website is a Baylor report based on Pepper Hamilton’s investigation and high-level audit of sexual harassment or violence at Baylor. For those eager to become familiar with private investigations and reports, this is a wonderful exemplar of the inputs, process, and output frequently found in such investigations; i.e., private investigations commonly follow the protocol and reporting techniques deployed by Pepper. (See also the Pepper – Penn State inquiry.) Some takeaways include the following:
- Though the report was described as containing findings of fact, there are no individuals identified in the report. Corporate bodies such as Baylor may be legally and financially liable in some cases, but these bodies have yet to get a suntan like many individuals. Some offices and departments within Baylor were listed as having provided witnesses – none of whom were named. Note that the reader has no clear way to assess these factual findings (e.g., are these largely inferences made by experts within Pepper; are these primarily based on personal knowledge of specific individuals; are these facts composites of personal knowledge and professional investigative expertise, etc.) Is the report like an expert report (see FRE R. 702)? Who are the experts (corporate bodies – even LLPs – do not testify in courts of law)? That the report is hearsay (i.e., a set of out-of-court statements) is clear, however would it comprise an exception to the rules disallowing hearsay testimony (see FRE R. 803)?
- Though the report was the result of a high-level audit, there are no standards noted or described from which the reader may obtain an informed understanding of whether the investigation complied with applicable standards (or whether there were no applicable standards). Compare financial and performance audits for which standards are available within the public domain (e.g., the Yellow Book). Just as Baylor did it (or didn’t do it), Pepper investigated it – neither of these corporate bodies have named individuals accountable to independent review in the public domain. That Mr. Starr suffered at least a reputational loss in a public demotion is known, but the reader has an incomplete understanding about the inspection and oversight function at Baylor, except that it failed on some occasions in responding / not responding to allegations against Baylor football players.
- Though the report listed ten pages of (broad and specific) recommendations that were adopted by Baylor’s board, the reader has no way of assessing whether many or most of these recommendations are essential, except to hold the presumption that all of them are essential. The reader is left to contemplate in the dark about the likely effects of these recommendations. No mention is made of Pepper or the board having done or considered a cost-benefit analysis of these proposed and adopted recommendations (cf. the recent brouhaha over the SEC and cost-benefit analysis). Thus, the reader is left to believe that the failures of the inspection and oversight function were as a result of deficiencies in design and implementation of internal controls that are readily achievable. What were the root causes of such failures? What are the standards against which to assess these adopted recommendations? Who will conduct follow-up audits of the agreed upon adoption of the recommendations to provide assurance they have been met; the same committees that failed previously?
These are only some takeaways. Under fair disclosure, I have participated in the preparation and review of such private sector investigative reports, and it may be true that I know one or more of the individuals that prepared the report / participated in the investigation (just speculating…). Some key items that would assist the reader that must rely on disclosures in the public domain for his/her understanding (though Baylor includes important detail on its website) because he/she is not an insider can include the following:
- A copy of the engagement letter, including proposed and accepted budgets and schedules / deadlines for completing the investigation / high-level audit, between Baylor and Pepper;
- A copy of the documents requested and reviewed;
- A copy of the witnesses whose statements were obtained (including whether particular individuals were interviewed more than once);
- A copy of all of the detailed invoices from Pepper to Baylor, including whether third parties were hired by either party to assist in the investigation / audit;
- A copy of all preliminary reports prepared by Pepper, including all emails and other correspondences between Baylor and Pepper relating to the investigation / audit….
Are all of these steps necessary? Are they sufficient? Will the outsider get these documents? Of course, not. However, investigations and audits, especially those for which standards, underlying evidence, specific processes, etc. are not clearly disclosed, may be subject to investigators and auditors reaching conclusions that they are expected to reach (cf. publication bias). Actual and potential biases demand exploration according to transparent standards, disclosures of key evidence, specific identification of individuals’ conduct, etc. such that an impartial review of the report and its supporting exhibits would persuade reasonable individuals unfamiliar with the case of the veracity and usefulness of its findings and recommendations.