On the heels of being shot down by the Commonwealth Court for overuse of an attorney-client privilege argument, the NCAA is now being accused of trying a new route to the same end.
In a motion filed Monday, lawyers for state Sen. Jake Corman, R-Benner Township, asked the court to weigh in on a new kind of privilege being asserted by the college sports organization.
Corman is suing the NCAA over enforcement of the Endowment Act, the legislation that would require the $60 million fine levied against Penn State remain in Pennsylvania to benefit child sex abuse treatment and prevention programs.
“Such an invocation of privilege is clearly improper,” said attorney Matthew Haverstick, of the law firm Conrad O’Brien.
After being shot down by Judge Anne Covey for repeatedly claiming the protection for every meeting or communication that involved an NCAA attorney — even if the lawyer was only copied on an email that went to many others — the NCAA’s new tack is to assert “joint defense privilege.”
NCAA general counsel and Executive Vice President Donald Remy was deposed as part of Corman’s suit against the organization on Nov. 20, just after Covey’s ruling. According to court documents, Remy was asked to review documents with his counsel, then asked about the redactions. The NCAA maintained its position that most of the documents remained protected, but switched to the new basis.
The reason was due to the involvement of Big Ten attorney Jonathan Barrett, of Mayer Brown LLP. Emails released recently in court showed participation between the two as contacts with Louis Freeh’s commissioned investigation of the Jerry Sandusky child sex abuse scandal.
“Importantly, in opposing a motion to compel compliance with a subpoena for essentially the same documents, the Big Ten did not assert the joint defense privilege,” wrote Haverstick, whose motion argued that the defense was inappropriate because it hadn’t been raised earlier.
“ ... The NCAA has waived whatever entitlement it may have had to assert the joint defense privilege — or any other privilege — by failing to include Mr. Remy’s two emails with Jonathan Barrett in a privilege log, even though plaintiffs requested one,” he wrote. “Beyond waiver, the NCAA has once again failed to provide even a minimal amount of support for its bald invocation of the joint defense privilege.”
A copy of Remy’s deposition was included in the filing.
“Did NCAA and Big Ten ever enter into a formal joint defense agreement?” Haverstick said in the proceedings.
“It’s typical that the NCAA with its member conferences has joint defense common interest arrangements when we were working toward something that relates to the interest of both entities,” Remy said. “In this context, as we talked about how we would move forward with these conversations, we recognize that this is one of those scenarios. If you’re asking whether there’s a written joint defense, the answer to that is no.”
In other documents filed in Commonwealth Court, attorneys for Vicky Triponey, former Penn State vice president for student affairs, submitted a motion to quash a subpoena and for a protective order.