Dueling documents were submitted Friday in Centre County Court in the ongoing lawsuit between the Joe Paterno estate on one side and the NCAA and Penn State on the other.
Pepper Hamilton LLP submitted a memorandum in support of its own motion for a stay pending appeal and for a protective order in the case. Freeh Sporkin and Sullivan LLP merged with Pepper Hamilton in August 2012, after Louis Freeh’s investigation was commissioned by the university on the Jerry Sandusky child sex abuse scandal.
In a September order, Judge John Leete said many of Penn State’s objections to discovery based on attorney-client privilege were not valid because that right was in the hands of Pepper Hamilton.
Pepper Hamilton subsequently filed a non-party motion on the issue, which the Paterno attorneys protested last week, prompting the law firm’s return volley.
“Pepper Hamilton will be forced to disclose documents protected by the attorney-client privilege in derogation of its ethical obligation to Penn State, the client, which as plaintiffs concede, owns that privilege,” the memorandum, submitted by attorney Thomas Zemaitis, stated.
The firm also protested the plan to protect the information contained by the court’s stipulated confidentiality agreement and protective order, saying media outlets could challenge that the production of the documents waived privilege and opened them to broader access. The only way to prevent that, they said, was a stay pending a Supreme Court decision on Penn State’s appeal.
“Otherwise, the proverbial cat will have been let out of the bag and Pepper Hamilton’s ability to protect privileged information (is) severely compromised,” the memorandum stated.
A second document filed in support of the firm’s position was a statement from former Freeh Sporkin and Sullivan attorney Omar McNeill, the lead project manager on the Penn State investigation, who said all work was done with the expectation of attorney-client privilege.
“It was routine practice, for instance, for the investigators to advise Penn State employee witnesses that information provided in interviews would be protected by an attorney-client privilege that belonged to the (Penn State board of trustees special investigations) task force and for the investigators to advise witnesses that the interviews were confidential,” McNeill stated.
In return, the Paterno estate was also filing documents Friday, entering a notice of intent to serve a subpoena to Paula Ammerman, the former board of trustees secretary who retired in May 2013.
The requested documents included anything “created, sent or received” as board secretary in relation to Sandusky, Paterno, the investigation, the Freeh report, the NCAA’s investigation or the consent decree, the document by which the NCAA and Penn State agreed on the historic sanctions — including $60 million in fines, scholarship restrictions and a postseason ban.
Other requests included any documents related to meetings, conferences or discussions on those topics and communications between then-president Rodney Erickson and any representative of the NCAA, including president and named party to the lawsuit Mark Emmert.
The Paterno estate and co-plaintiffs — trustee Al Clemens and football coaches Bill Kenney and Jay Paterno — are suing the NCAA and the university for breach of contract. The NCAA is also accused of interference, disparagement, defamation and conspiracy.