PAterno family suit: NCAA, Penn State fight to keep legal documents from public

Parties battle over disclosure

Centre Daily TimesJuly 3, 2014 

The NCAA and Penn State filed arguments Thursday in Centre County Court outlining their request for a protective order regarding documents used in the upcoming lawsuit between those parties and the family and supporters of Joe Paterno.

The Paterno family and their supporters, including members of the university board of trustees, countered Thursday with a statement seeking denial of the request and calling it a “back-door effort to obtain a blanket ‘gag order.’ ”

The Paternos and current and former Penn State trustees, former coaches and former players are suing the NCAA, saying that the intercollegiate athletics governing body bypassed its own rules when it sanctioned the university in 2012 in the aftermath of the Jerry Sandusky child sex abuse scandal.

The sanctions include a $60 million fine, a postseason ban, scholarship reductions and the vacating of 112 victories from Paterno’s tenure as head football coach.

Other defendants in the case are Penn State, NCAA President Mark Emmert and Edward Ray, former chairman of the NCAA executive committee.

The NCAA statement Thursday referred to a joint motion submitted by all parties Monday that cited a need to prevent all documents produced during pretrial discovery to be made public.

The defendants in the case are requesting a more restrictive version of the motion. This would prevent all materials, including those deemed “confidential,” “highly confidential” and “nonconfidential,” from being made public.

The statement argues that both federal and Pennsylvania law recognize that pretrial discovery is “essentially a private process.”

The public has a right to access nonconfidential documents once entered into the judicial record. But unless these documents are made part of the record, “there is no right of or need for the public to access such materials.”

The defendants do not want to risk documents being entered into the public realm by the plaintiffs — the Paterno family, coaches and other supporters — even if those documents have not been deemed confidential.

Recent statements made by the plaintiffs through the news media and Twitter have led to fears that a release of materials would be used to “create adverse publicity aimed at manipulating the public perception of this matter.”

“Information learned through discovery belongs in the courtroom, not on Twitter,” the statement said.

Siding with the Paterno family are trustees Ryan McCombie, Anthony Lubrano, Al Clemens and Adam Taliaferro, as well as several former Penn State football players.

They and the other plaintiffs, in their statement, maintained that the NCAA’s desire for complete confidentiality “cannot be justified” under state law and “is contrary to both public policy and the public’s right to know what really happened during the investigation of Jerry Sandusky’s criminal conduct at Penn State by the (Louis) Freeh firm and the NCAA.”

The statement said the NCAA is trying to secure a “blanket ‘gag order’ to prevent the disclosure of all information in this case,” including that which “is not properly considered as confidential in any way.”

Moreover, the plaintiffs contend, the NCAA’s request should not be granted because the public has “both a keen interest in what happened in the investigations at Penn State and a right to access to the public process of court proceedings.”

“It would be hard to imagine a case in which such a blanket restriction would be less appropriate,” the statement said.

In addition, the statement said that state case law builds a precedent for having court proceedings “open to public scrutiny.”

Both sides of the suit were expected to submit statements by Thursday.

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