Penn State

Paterno estate: Law firm has no attorney-client privilege in NCAA lawsuit

The estate of former Penn State football coach Joe Paterno objects to a proposed stay pending appeal in its lawsuit against the NCAA and Penn State.

Why? Because the party asking for the stay isn’t part of the lawsuit.

The Paterno estate, together with Penn State trustee Al Clemens and former Nittany Lion football coaches Bill Kenney and Jay Paterno, are suing the NCAA and the university for breach of contract. The NCAA is also accused of defamation, interference, disparagement and conspiracy.

Pepper Hamilton LLP, with offices in Philadelphia, filed its motion in Centre County Court of Common Pleas Oct. 13, asking that the court call a timeout while a ruling on discovery and work product can be appealed.

Judge John Leete ordered in September that many of Penn State’s objections to discovery materials involving Pepper Hamilton were not covered by attorney-client privilege.

Leete said the privilege actually belonged to the law firm, not Penn State.

Pepper Hamilton submitted a non-party motion asserting that materials requested were work product, “thereby curing any lack of standing on Penn State’s part to do so.” Consequently, the firm claimed that the court should now protect the documents from subpoena.

The Paterno estate’s response is that, no, the privilege really is in Penn State’s hands.

“Penn State, not Pepper Hamilton, is the holder of the attorney-client privilege, and Penn State itself did not file a motion for stay of the court’s order,” the estate’s filing reads. “Instead, Penn State has belatedly filed a brief joinder to Pepper Hamilton’s motions.”

The university filed its joinder Wednesday.

Pepper Hamilton also requested a protective order, which the estate opposed, claiming that such an order is premature when the firm has not yet complied with the subpoena.

A Penn State spokesman declined to comment, and a representative from the Paterno estate could not be reached.