penn state

Attorneys for the family of Joe Paterno and Penn State University are set to argue today whether Pepper Hamilton should be forced to turn over documents related to the creation of the Freeh report.

The Centre County Court of Common Pleas is expected to hold oral arguments in Paterno v. National Collegiate Athletic Association, with issues set to focus on whether the plaintiffs should be able 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 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.

In its brief outlining its position against the subpoena, Penn State said it is not opposed to a “tailored” subpoena, but that the plaintiffs’ request is overbroad, would be costly and time-consuming to comply with and includes documents that are protected under the attorney-client privilege and work-product doctrine.

Penn State additionally contended the plaintiffs’ argument that the publication of the Freeh report waived any privileges or immunities should be dismissed, and that many of the documents included in the subpoena are not relevant to the litigation.

“In agreeing to the public disclosure of the Freeh report without an advance review, the university made a knowing, but expressly limited, waiver of the attorney-client privilege and the attorney work-product doctrine,” said Daniel I. Booker of Reed Smith in the filing submitted on behalf of the university May 9. “Many of the documents Paterno seeks remain immune from discovery by virtue of those privileges and protections.”

The university said in the filing it would not object to the production of communications between Freeh’s former firm and the NCAA, the Big Ten Conference or third parties, and would not object to the electronic search of a database that contains more than 3.5 million files that Freeh Sporkin had assembled, which would then be produced if they were relevant and were not privileged.

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.

The plaintiffs, in a memorandum outlining their position against the university’s objections, contended that the defendants’ arguments were part of a “delay-and-conceal” strategy.

“The great irony of their discovery position is that both the NCAA and Penn State publicly and aggressively touted the thoroughness of the Freeh report, parroting Mr. Freeh’s boasts of millions of documents reviewed and over 430 interviews conducted, to bolster their credibility in taking the actions they did,” said Thomas J. Weber of Goldberg Katzman in the filing that he submitted on behalf of the plaintiffs May 9. “But now that those actions have been questioned and criticized, including the fact that the Freeh firm interviewed almost none of the key witnesses and ignored the realities of how a predator like Sandusky deceives a community, they are desperately seeking to block a review of the underpinnings of the damaging and unfounded conclusions in the Freeh report.”

The suit was filed in May 2013 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, a former assistant coach at Penn State, and others in the football program and broader university community.

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.

According to court documents, Penn State was added as a nominal defendant to the case and in March, the Paternos filed a notice of intent to subpoena Pepper Hamilton for the production of 25 categories of documents related to the work of Freeh’s former firm, and the conclusions and recommendations of the Freeh report.

Booker and a spokeswoman for the NCAA declined to comment for the story, and Weber did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.