Potter County Senior Judge John Leete doubled down on his order overruling some privilege arguments in the Paterno estate’s lawsuit.
In an opinion dated Nov. 29 but filed in the Centre County Prothonotary’s Office on Friday, Leete explained his reasoning on the decisions he made in his Sept. 11 order, in which he overruled Penn State’s objections to a subpoena of Pepper Hamilton LLP on the grounds of attorney-client and work-product privilege.
Penn State subsequently appealed to the Pennsylvania Superior Court.
The estate of former Penn State head coach Joe Paterno, along with coaches Jay Paterno and Bill Kenney and Penn State trustee Al Clemens are suing the NCAA and Penn State, plus NCAA President Mark Emmert and former executive committee chairman Ed Ray for breach of contract. The NCAA is also accused of disparagement, defamation, conspiracy and contractual interference.
Pepper Hamilton is the law firm that merged with the offices of former FBI director Louis Freeh, who Penn State hired to conduct an investigation into the Jerry Sandusky child sex abuse scandal.
In Leete’s opinion, Penn State could not have standing to assert the privilege. Pepper Hamilton tried to subsequently assert the privilege itself, but the court denied that as well.
“Because Pepper Hamilton did not attempt to assert their work product doctrine privilege until after the instant appeal was filed, this court has not had the opportunity to consider the issue and obviate the need for appeal. ... Because Pepper Hamilton did not respond to the subpoena and did not present any testimony, exhibit or argument at the hearing, their attempt to assert the work product doctrine is untimely,” Leete wrote, saying “this issue is not properly before the Superior Court.”