You win some, you lose some. Penn State, the NCAA and the estate of former Nittany Lions football coach Joe Paterno saw that with the latest court ruling.
On Monday, the Centre County Prothonotary’s Office posted a Wednesday ruling from Potter County Senior Judge John Leete that gave a little to all sides.
The ruling followed a September hearing and a flurry of motions in the case that arose from Paterno’s dismissal and treatment in the wake of the Jerry Sandusky child sex abuse scandal.
The Paternos scored points against Penn State and law firm Pepper Hamilton LLP in two areas.
Pepper Hamilton, the Philadelphia powerhouse firm that joined with former FBI director Louis Freeh’s group after he conducted Penn State’s commissioned investigation of the Sandusky incident, has been resisting subpoenas on grounds of attorney-client and work product privilege for months, despite several orders from the court shooting down the arguments made by both the university and the law firm.
When 70,000 documents were produced since July, they were all marked with a “Highly Confidential — Attorneys Eyes Only” designation permitted under the protective order agreed to in 2014. The estate protested this as a misuse of the designation. Penn State and Pepper Hamilton justify the move based on the idea that they are still being appealed to a higher court.
Leete said that wasn’t a good enough reason.
“Certainly some of the documents may fall under the more restrictive designation but clearly all do not,” he wrote, ordering Pepper Hamilton to review the documents and reclassify them accordingly within 30 days. If the new designations are not made within that time frame, the court will declare them “Classified,” opening them up to viewing by the plaintiffs and not just their attorneys.
The estate got a second win with Penn State’s attempt to “claw back” 181 inadvertently produced documents. Of those, 121 were also produced by Pepper Hamilton, leading Penn State to ask for their copies to be returned or destroyed, claiming they were subject to work-product doctrine.
Leete reaffirmed his previous ruling that work product rests with the law firm, not the client, and the university cannot invoke it. He granted the estate’s request to file the documents under seal “so that the court can confirm that they are covered by earlier orders regarding privilege.”
Another 52 documents were emails between Penn State trustees and Frank Guadagnino, an attorney with Reed Smith LLP at the time who is now one of the university’s in-house counselors. Penn State said the documents were protected by privilege again, and that they were not relevant.
Leete said that relevance would not trigger the claw back provisions. He directed Penn State to prepare a privilege log documenting why each email should be protected and request their individual return.
The NCAA asked that former assistant coaches Jay Paterno and Bill Kenney, also plaintiffs alongside the estate, have been sluggish in supplying some discovery documents on their side, including financial and job search information. Leete directed the two men to provide the documents within 30 days or certify that they had turned over any they had found.
Leete also agreed with the NCAA that any polling or survey information that Jay Paterno, the late coach’s son, had in reference to his would-be run for lieutenant governor in 2014 would be relevant and should be turned over within 30 days, if he had it. Otherwise, the plaintiff would certify he had attempted to provide it. Jay Paterno has maintained that any polling information was not collected by him.
The NCAA lost on their demand to have access to “all documents concerning” Jay Paterno’s book, “Paterno Legacy: Enduring Lessons from the Life and Death of My Father,” although Leete did open the door for the NCAA to draft a “more tailored request” in that area.
The estate was directed to provide any information on the consent decree, the agreement between Penn State and the NCAA that led to the sports organization’s sanctions against the university after the Freeh report was released, as well as anything on expert reports, Sandusky and his charity The Second Mile, social media and text messages, or to certify that a “good-faith, reasonable effort” to comply had been made.