PSU files response to suit; Paternos fire back with statement

lfalce@centredaily.comMay 9, 2014 

Penn State filed a 31-page document with Centre County Court of Common Pleas on Friday, detailing exactly why the university believes the parties in the Paterno lawsuit shouldn’t subpoena Pepper Hamilton attorneys, including former Louis Freeh law firm employees.

Less than 30 minutes after the documents were filed, the Paterno family sent out a response to media.

Penn State’s document held little surprise, including much of the same arguments and often identical language to the April 28 filing, in which the university objected to several points in the lawsuit by the family of late football coach Joe Paterno. The plaintiff parties, including members of the board of trustees, faculty members, former coaches and players in addition to family, filed notice of intent to subpoena Pepper Hamilton and would like access to documents related to the investigation and creation of the Freeh report.

The university’s objections, on the grounds that it did not give a blanket waiver of its privileged relationship with its attorneys, allege that most of the requested documents are irrelevant and privileged, and access issues should be determined on an individual basis.

Penn State claims “the Freeh (f)irm collected over 3.5 million pieces of data in the course of its investigation. The vast majority of those documents are not relevant to any issue in this litigation.”

Among those documents are protected student education records and employment documents. In addition to the “overbroad” nature of the requests, the university said that Pepper Hamilton should not be tasked with searching for and producing documents that are available publicly as part of the request.

The filing also requested that the Paternos not be permitted to serve any subpoena until the court rules on both Penn State and the NCAA’s preliminary objections, including objecting to the suit being brought by Paterno’s “family,” claiming families have no legally recognized status in Pennsylvania and that the estate lacks standing to sue.

The family’s response was quick.

“It is apparent that PSU, still under open threat by the NCAA of additional sanctions, has joined the NCAA’s strategy of delay and conceal. PSU’s objections are a hollow attempt to prevent the discovery of the supposed factual basis for the Freeh Report’s unfounded and outrageous conclusions as to Joe Paterno and the other plaintiffs in this lawsuit,” said a statement from Paterno lawyer Wick Sollers.

“The extreme difficulty the NCAA faces in the litigation brought by the Paterno family, former coaches and others is evident in their transparent attempts to delay the process and withhold information. It should be remembered that the NCAA acted with unprecedented speed in sanctioning Penn State after release of the Freeh Report,” Sollers said. “The entire process, including the review of the supposed facts, any analysis and deliberation, and the imposition of extraordinary penalties, took all of 11 days. Now, 12 months after the lawsuit was filed, the NCAA is still doing everything possible to keep the real facts from emerging. Fortunately, their delaying tactics can only go so far. In January, the (c)ourt ruled that the discovery process should proceed. For reasons that defy logic, the NCAA is trying to re-litigate a number of issues that have already been decided. We are confident the (c)ourt will see this effort for what it is, a further attempt to keep the record of their misconduct concealed from the public.”

Oral arguments in the case are scheduled for 10 a.m. May 19.

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