When you hire a lawyer to do an investigation and announce the results to the world, you can’t later claim the information is private and protected.
That was the rationale Senior Judge John Leete, of Potter County, used in denying a stay for Pepper Hamilton LLP.
The order and opinion, dated Nov. 14, were filed Thursday in the Centre County Prothonotary’s Office.
Pepper Hamilton had filed the request for a stay and protective order Oct. 13, seeking to stave off a discovery request from the estate of the late Joe Paterno, the longtime Penn State football coach fired in November 2011 amid the Jerry Sandusky child sex abuse scandal.
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The estate, along with Penn State trustee Al Clemens and former assistant coaches Bill Kenney and Jay Paterno, are suing the university, as well as the NCAA and its president, Mark Emmert, and former NCAA executive committee chairman Ed Ray, for breach of contract.
The NCAA also is accused of defamation, disparagement, conspiracy and interference in contractual relations.
Leete had overruled objections on the attorney-client and work-product privilege protections for the requested discovery in September, in part because some of those assertions were not Penn State’s to make, as the privilege belonged to the attorneys.
Penn State had hired former FBI director Louis Freeh to do an independent investigation of the Sandusky scandal. Those results were released in the Freeh report in July 2012. Freeh’s firm, Freeh Sporkin and Sullivan LLP, subsequently merged with Philadelphia legal powerhouse Pepper Hamilton.
Pepper Hamilton entered its motion as a non-party to the suit, asserting its privilege, but the judge shot down that argument.
“Even if Pepper Hamilton were able to make a strong showing that Penn State is likely to prevail on their claim that FSS was providing services in furtherance of securing either an opinion of law, legal services or assistance in a legal matter, it has not adequately addressed the issue of subject matter waiver,” Leete wrote.
He backed that up by agreeing with the estate’s argument that Penn State waived its ability to invoke privilege when the contents of the Freeh report were unveiled at a national press conference, saying the university was using attorney-client privilege “as both a shield and a sword.”