The NCAA is irked that a gesture of “goodwill” is being painted as proof of wrongdoing.
The college sports organization is being sued by state Senate Majority Leader Jake Corman, R-Benner Township, and Treasurer Rob McCord to force compliance with the Endowment Act, the legislation that requires the $60 million fine levied against Penn State after the Jerry Sandusky child sex abuse scandal to remain in Pennsylvania for the benefit of abuse victims and programs.
As the case marches toward a February trial date, Commonwealth Court Judge Anne Covey has twice ordered the NCAA to turn over contested documents for her review, to determine whether they do fall under the umbrella of attorney-client privilege or whether they are open to discovery by the state officials.
In turning over the second batch of documents on Dec. 29, NCAA attorney Everett Johnson revealed that they had determined that 13 of the 163 communications were not privileged. Those were turned over to the plaintiffs, who immediately fired back in court. They attacked the NCAA’s “astonishing admission,” particularly in relation to one exchange involving NCAA general counsel and Vice President Donald Remy, claiming the defense had steadfastly maintained it was privileged.
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Unredacted documents showed the exchange between Remy and Big Ten outside counsel Jonathan Barrett dealt with media strategy.
A response filed Dec. 31 and posted to the Commonwealth Court’s website on Monday showed the NCAA taking umbrage to Corman’s attorney Matthew Haverstick’s characterization of the concession as “somehow improper or nefarious.”
“This court has repeatedly directed the parties to cooperate fully with each other in the discovery process. Consistent with that directive, the NCAA has worked continually to refine its privilege determinations ... ,” NCAA attorney Thomas Scott wrote.
He claimed Haverstick “deeply mischaracterizes” Remy’s deposition and that previous requests for the document were taken out of context, claiming “NCAA counsel was rightfully concerned that a hasty decision to produce a document that was, in fact, otherwise privileged could trigger a waiver.”
He also continued to assert the newest privilege argument, that of common interest between the NCAA and the Big Ten.
“There can be no serious suggestion that the NCAA withheld the redacted portions for any reason other than to ensure protection of a valid common interest privilege with the Big Ten ... ,” Scott wrote, saying that, in the weeks since Remy was deposed, “the soundness of the NCAA’s position” on the new privilege argument has been proven.
When turning over a previous batch of 477 requested documents for review in November, the NCAA waived privilege on 172 of the communications.