Commonwealth Court Judge Anne Covey struck down an NCAA challenge Wednesday, ruling that not everything involving a lawyer can fall under the umbrella of attorney-client privilege.
State Sen. Jake Corman, R-Benner Township, and Treasurer Rob McCord are suing the NCAA and Penn State over the enforcement of the Endowment Act, which would keep the $60 million fine imposed after the Jerry Sandusky child sex abuse scandal in Pennsylvania.
Corman’s attorneys had asked the judge to intercede, claiming in a Nov. 7 motion that the NCAA was overusing the legal argument on privilege, objecting to “almost every question” in a deposition based on the presence of NCAA chief legal counsel and Executive Vice President Donald Remy at meetings.
The NCAA responded, blaming the plaintiffs for asking questions specifically designed to elicit privileged communications, and said the “objections” were really just cautions to the witnesses to be careful what they revealed.
Covey came down on Corman’s side, saying that just because an attorney was present doesn’t create an automatic blanket of protection.
“... Remy or the NCAA’s legal staff’s presence at a particular meeting, alone, does not render all communications occurring at the meeting privileged,” she wrote, adding that every time the NCAA invoked privilege, it had to show that the individual communication was related to legal advice.
“Although Remy explains that he ‘convened and participated’ in internal meetings and discussions which he considered to be ‘primarily for the purpose of providing legal advice to the NCAA,’ he does not specifically identify the particular meetings and discussions to which he refers,” Covey wrote.
The judge granted Corman’s motion, ordering the NCAA to play by those rules.
In a cross-motion, the NCAA asked that Corman and McCord’s attorneys be prohibited from asking questions “that improperly seek to elicit information protected by the attorney-client privilege.”
Again, she came down against the college sports organization.
“Given the ‘liberal discovery rule,’ we refuse to attempt to craft restrictions on plaintiffs’ deposition motions,” she said, denying the cross-motion.
Covey directed the two sides to work together “within the well-established legal parameters” in the opinion, and said that future challenges should include “specific evidence” of privilege. She also said that after that evidence was reviewed, she expected the parties to “cooperate in seeking an amicable resolution.”
Covey has struck down NCAA protests before, ordering it to turn over 477 contested privileged documents for her review and refusing to dismiss the case when the organization offered to walk away, instead setting a January trial date to decide the question of the validity of the consent decree by which the NCAA imposed sanctions on Penn State.
She also previously issued a ruling reaffirming the constitutionality of the Endowment Act and accusing the NCAA of “forum shopping” by attempting to have the state Supreme Court and United States District Court for the Middle District of Pennsylvania both weigh in.