On Tuesday, the NCAA asked a Commonwealth Court judge to decline a request by state Senate Majority Leader Jake Corman, R-Benner Township, and Treasurer Rob McCord to review another 163 documents.
Corman and McCord are suing the college sports organization and Penn State over enforcement of the Endowment Act, Corman’s legislation that would put the $60 million fine levied against the university as part of the NCAA’s package of punishments after the Jerry Sandusky child sex abuse scandal into a fund administered by the state treasurer to benefit child sex abuse victims and prevention programs.
The two sides are marching toward a five-day trial slated to start Jan. 6 in Harrisburg but are still arguing over the issue of which attorney-related communications are privileged and which aren’t.
Judge Anne Covey previously ruled that the NCAA produce hundreds of documents for an in-camera review, meaning the documents that the NCAA claimed as privileged would be examined by the court, which would then decide whether the material was protected by attorney-client or work product privilege. She also declined the NCAA’s request that the two state officials be limited in the questions they could ask in depositions.
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This time, NCAA attorney Thomas Scott, of Killian and Gephart LLP in Harrisburg, protested the plaintiffs’ continued challenge of privileged communications, especially those that have been singled out as related to media relations.
“A communication touching on media issues can still be privileged,” Scott wrote. “... Courts have recognized that counsel’s communications in the context of media strategy may be so inextricably linked to the purpose of providing legal advice that the attorney-client privilege and work product protection may extend not only to in-house communications staff but even to third-party consultants.”
Covey ruled in November that the NCAA had the burden of proving its privilege arguments.