Both sides in the lawsuit that pits the Paterno estate against the NCAA want the same thing.
On Friday, lawyers for the parties presented arguments to Potter County Senior Judge John Leete, specially presiding in Centre County, detailing why they should be entitled to the interviews or documents they were pursuing, but also why the other side shouldn’t be.
The NCAA wants to dig into the critique released by the family of late former Nittany Lions football coach Joe Paterno in response to the Freeh report, the Penn State-commissioned analysis of the Jerry Sandusky child sex abuse scandal that singled out four university officials, including Paterno, for culpability.
The family countered Penn State’s investigator, former FBI director and one-time federal judge Louis Freeh, with their own slate of expert voices, including former U.S. attorney general and Pennsylvania governor Richard Thornburgh, former FBI profiler and noted child sexual victimization expert Jim Clemente and psychiatrist and sexual behavior expert Frederick Berlin.
The critique was released in February 2013.
The Freeh report was released in 2012, shortly after Jerry Sandusky was convicted of 45 counts of child sex abuse crimes. The Paternos’ critique was published the following February.
The NCAA asked for more info on the building blocks of that report and used similar discovery requests regarding the 2012 Freeh report as a reason.
But like Penn State lawyers regarding those documents, the Paterno counsel cited attorney-client privilege in staving off the request.
A lawyer for the estate argued that where Freeh was hired to conduct the investigation, the critique was prepared by attorneys King and Spaulding with input from those hired as experts.
“I’m having some trouble with where the line falls,” Leete said.
In turn, the NCAA sought to block the family from its own line of exploration, delving into communications from members of the infractions committee.
In 2012, after the release of the Freeh report, the NCAA imposed unprecedented sanctions on Penn State, including a multiyear bowl ban, a $60 million fine, handcuffed football scholarships and stripping of 111 Nittany Lion wins, taking away Paterno’s record as the winningest coach in Division I football.
Attorney Patricia Maher said the line of exploration, including deposing members of the infractions committee, was intended to examine whether there were reactions to the punishment being conducted outside of the normal chain of responsibility. The Penn State sanctions were levied by the executive committee, rather than the infractions committee.
“We think it is very likely they would have had reactions. ... It is well within the scope,” said Maher, who is looking to prove malice on the part of the college sports oversight organization.
“One of the things that would be evidence of malice would be reckless disregard for the truth,” she said.
The NCAA protested a look into the infractions process that could reveal protected information.
This is not a prelude to a deep dive into specifics
Paterno attorney Patricia Maher
Maher countered that only “numbers, very high level information on the number of times an outside investigation was used” was being sought.
“This is not a prelude to a deep dive into specifics,” she said.
Leete issued no decisions Friday.