Penn State is not taking a judge’s ruling without a fight.
On Tuesday, attorneys for the university filed a notice of appeal in Centre County Court.
The subject of the filing is the Sept. 11 ruling by Judge John Leete. The Potter County jurist is hearing arguments on the suit brought by the estate of late former football coach Joe Paterno, four members of Penn State’s board of trustees, former coaches Jay Paterno and Bill Kenney and nine former football players against the NCAA and the university.
In May, the judge heard protests from Penn State over the discovery being requested by plaintiffs, including huge numbers of documents, many they claimed as privileged information.
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In his 39-page September ruling, Leete shot down some of Penn State’s arguments. He decided that the university cannot claim that all communications with Freeh Group International, hired to investigate the Jerry Sandusky child sex abuse scandal, are protected by the kind of privilege someone might share with the lawyer representing him in a case.
“Further, the scope of an attorney-client privilege waiver applies to the subject matter of the privileged documents disclosed. Therefore, voluntary disclosure waives the privilege as to remaining documents of that same subject matter,” Leete said.
Leete said any documents disclosed to the Big Ten or NCAA regarding failures in reporting, knowledge of allegations of sexual misconduct and handling of those allegations constitute waiver of privilege.
The university disagreed.
Attorneys from Reed Smith LLP are taking the case to the Superior Court.
“Specifically, Penn State appeals the portions of the order that overruled Penn State’s assertion of the attorney-client privilege and the attorney work product doctrine,” the filing states.
Penn State had no comment on the appeal.
Trustee Anthony Lubrano, one of the parties to the suit, did.
“Though disappointed, I am not surprised nor am I disillusioned,” he said. “However, I am reminded of the words of a retired Navy SEAL: ‘When a ship is sinking, even the rats run to the mast. In the end, they drown too.’ ”