The family of Joe Paterno has asked the Centre County Court of Common Pleas to allow them to subpoena Pepper Hamilton for documents related to the Freeh report.
On Monday, the plaintiffs in Paterno v. National Collegiate Athletic Association filed a motion asking the court to overrule the NCAA’s objections regarding the Paterno family’s intent to subpoena Pepper Hamilton for documents created by Freeh Sporkin & Sullivan, which merged with Pepper Hamilton in September 2012. The firm was retained by Penn State University in 2011 to investigate the allegations of sexual abuse at the hands of Jerry Sandusky and the university’s alleged failure to report the abuse.
The plaintiffs, who include the family of Paterno, the longtime Penn State head football coach who died in 2012, several former Penn State football players and members of the university board of trustees, contend in the motion that the terms of the agreement between the university and the Freeh firm and the fact that the report was publicized nullify any privilege under the attorney-client privilege and work-product doctrine that the NCAA claimed precluded the documents.
“Penn State’s use of the ‘interim findings’ of the Freeh firm, and its sharing of information with third parties regarding the ongoing developments of the investigation, belies Penn State’s current claim of privilege with respect to all documents and information of the Freeh firm called for by the Pepper Hamilton subpoena,” said Thomas J. Weber of Goldberg Katzman in the motion, which he filed on behalf of the plaintiffs. “Penn State’s failure to maintain the confidentiality of the work performed by the Freeh firm undercuts its broad claim of privilege in response to the Pepper Hamilton subpoena.”
In a related civil case for defamation, Centre County Court of Common Pleas Judge Jonathan D. Grine issued an opinion supporting his decision to deny an emergency motion that Louis Freeh and his firm filed, asking the court to reconsider the stay it granted in Spanier v. Freeh.
In July 2013, Graham Spanier, the former Penn State University president, began the case by filing a writ of summons, but filed a stay in the case in October. Grine issued a motion to stay the case in February.
Grine’s order, which was issued Tuesday, specifically addressed concerns Freeh raised that Spanier’s failure to file a complaint threatened Freeh’s ability to move the case to federal court because of the statute of limitations, and that, while the court based its stay on Spanier potentially invoking the Fifth Amendment, Spanier specifically disclaimed that he would invoke the Fifth Amendment.
Grine reiterated the basis for his findings.
“Merely because plaintiff has not yet done so does not mean that he will not assert his [Fifth Amendment] right in the future,” Grine said. Regarding the ability to move the case to federal court, Grine added, “It is entirely possible that the district court, upon balancing the equities, would find the equitable exception to the one-year bar to be an appropriate remedy.”
In late March, Freeh filed an appeal to the state Superior Court.
In Paterno, the plaintiffs additionally argued that Pennsylvania does not recognize the self-examination privilege, which the NCAA has applied to the documents.
The plaintiffs cited the Eastern District of Pennsylvania’s ruling in Drayton v. Pilgrim’s Pride, which said, “Although a few lower Pennsylvania courts have applied the privilege in limited situations, no Pennsylvania appellate court has adopted it. In fact, the Pennsylvania Commonwealth Court has specifically noted that the privilege has not been recognized in this state.”
The suit was filed in May over sanctions the NCAA imposed as a result of the Sandusky sex-abuse scandal. The plaintiffs argue that the NCAA coerced Penn State to agree to a consent decree, improperly used the findings of the Freeh report against the school’s football program, and tarnished the reputation of Paterno, his son, Jay Paterno, and others in the Penn State football and university community.
According to the motion, in February, the Paternos filed a notice of intent to subpoena Pepper Hamilton for the production of 25 categories of documents related to the Freeh firm’s work, and the conclusions and recommendations of the Freeh report.
In March, Penn State filed an objection to the subpoena, arguing that the documents were precluded from disclosure under the attorney-client privilege, the work-product doctrine, the self-examination privilege, and because the subpoena was overly broad, the motion said. Penn State also contended that the plaintiffs lacked standing, and therefore had no right to discovery.
The suit takes issue with the NCAA and its top officials for the handling of the Sandusky scandal, claiming the trade organization did not have the authority to impose the sanctions it did for matters that were not related to the athletic department, and that it violated its own bylaws and constitution in doing so.
The suit seeks a declaratory judgment that the NCAA’s actions and the consent decree were unfair and unlawful, along with a permanent injunction preventing the NCAA from further enforcing any of the sanctions. It has asked for compensatory and punitive damages as well as their legal costs.
In July 2013, the NCAA asked the court to toss the case, arguing the plaintiffs failed to join Penn State as an indispensable party to the lawsuit and accordingly lacked standing to fight the sanctions because they were not a party to them.
A call to Weber was not returned Tuesday, and the NCAA’s attorney, Thomas W. Scott of Killian & Gephart, referred questions to the NCAA press office, which did not return a call for comment.
Spanier’s attorney, Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis, did not immediately return a call Tuesday.
Freeh’s attorney, Robert C. Heim of Dechert, declined comment.