The family of Joe Paterno is asking a judge to overrule Penn State’s objections to a subpoena lawyers for the family want to serve Louis Freeh’s law firm.
In a motion filed Monday, Paterno family attorneys argue the Freeh report is not protected by attorney-client privilege or as work product and that Penn State shouldn’t be able to block the subpoena on those grounds.
The proposed subpoena makes 25 separate requests for documentation from Freeh’s Pepper Hamilton law firm. Attorneys are seeking documentation involving the NCAA and its officials, the Big Ten and Penn State about the Freeh investigation and the NCAA consent decree.
The Penn State-commissioned internal investigation of the Jerry Sandusky child sexual abuse scandal concluded that Paterno and other top administrators knew of allegations against Sandusky and covered them up.
Some of the requests in the subpoena include documentation about the university’s decision to fire Paterno, documents to support a Freeh report reference that Paterno knew what was going on at Penn State football facilities and drafts of the consent decrees.
Penn State lawyers filed objections to the proposed subpoena last month in Centre County Court.
The university, which was recently added as a defendant in the Paternos’ lawsuit against the NCAA, said it won’t object to records of actual communications, but that it cannot fulfill other requests for several reasons.
For example, the university said it never waived attorney-client privilege or other protections with the Freeh firm that would make investigative materials subject to the discovery process in the lawsuit.
In addition, the Penn State lawyers said the Paterno family and the late coach’s estate don’t have the legal standing to sue the university.
Paterno family attorneys argue in the filing Monday that Penn State authorized Freeh’s firm to share findings from the report with law enforcement, media and others and that the decision is inconsistent with attorney-client privilege.
“Penn State’s failure to maintain the confidentiality of the work performed by the Freeh firm undercuts its broad claim of privilege in response to the ... subpoena,” lawyers wrote in the filing.
“To permit such an assertion of privilege would enable Penn State to use the privilege as a sword (by selectively disclosing documents to law enforcement, the NCAA, and the public to enhance its position), and as a shield (by preventing the disclosure of information it does not want disclosed in the context of this litigation),” Paterno family attorneys argued.
The lawyers also said they should be allowed to pursue seeking discovery materials while objections play out over whether they have legal standing to sue the university.