In court filing, Paterno family counters PSU argument for not turning over Freeh documents

mcarroll@centredaily.comMay 12, 2014 

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Paterno family attorney Wick Sollers, left, talks with Scott Paterno as they enter the courthouse. Lawyers for the NCAA, Paterno family and Paterno supporters were in Bellefonte, Pa., at the Centre County Courthouse, Tuesday, October 29, 2013, for a court hearing. The lawsuit brought by the Paterno family aims to wipe out the NCAA sanctions against Penn State University. Centre Daily Times/Nabil K. Mark

NABIL K. MARK — CDT photo Buy Photo

Penn State’s objections to handing over Freeh report documents to the Paterno estate is another example of the “delay-and-conceal strategy” the NCAA has employed in the family’s lawsuit, attorneys for the Paterno family argued Monday in a court filing.

The filing was the latest in the back-and-forth exchange between lawyers for the Paterno estate and Penn State over whether Louis Freeh’s law firm should have to provide millions of documents the former FBI director collected in his review of the Jerry Sandusky child sexual abuse scandal.

Paterno family attorneys have subpoenaed the records as part of their lawsuit against the NCAA and Penn State, which seeks to have sanctions levied against the university overturned and the consent decree that authorized them voided.

The sides are set to appear May 19 in Centre County Court for a hearing on the subpoena request.

Penn State attorneys asked last week that a judge reject the request, arguing in part that some of the materials are protected by attorney-client privilege, that the subpoena is overbroad and that most of the requested documents are irrelevant.

Paterno family lawyers, as they have argued in the past, said Monday that the NCAA has openly threatened Penn State with additional sanctions if the university doesn’t “come to heel” and go along with the organization.

“In the face of those threats, Penn State has supported the NCAA and taken the position that there should be no discovery from the Freeh firm, asserting claims of attorney-client and attorney work product privileges ...,” Paterno family attorneys wrote.

The Paterno estate argues, in part, that the report was never meant to be kept confidential and was released publicly, and that Penn State gave up attorney-client privilege with multiple voluntary disclosures of Freeh information.

“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 the millions of documents reviewed and over 430 interviews conducted to bolster their credibility in taking the actions they did,” Paterno family attorneys wrote.

“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 deceived a community, they are desperately seeking to block a review of the underpinnings of the damaging and unfounded conclusions of the Freeh report,” the attorneys wrote.

NCAA attorneys, in a recent filing, gave the Freeh report a vote of confidence, saying nothing has come out publicly to discredit it, “other than the purposed finding of paid consultants working at the direction of the Paterno estate.”

In its filing Monday, the Paterno estate blasted that position.

“It has taken the astonishing and self-serving position that ‘to date, absolutely nothing has come out in the public domain to shake any confidence in Judge Freeh’s report,’ while simultaneously refusing to produce discovery until a comprehensive ‘confidentiality’ order is in place that would prevent facts from ever becoming part of the ‘public domain,’ ” the Paterno family said.

Matt Carroll can be reached at 231-4631. Follow him on Twitter @Carrollreporter.

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