The NCAA turned over 150 documents for Commonwealth Court Judge Anne Covey to review this week, as ordered before Christmas.
But the order was for 163 documents to be reviewed.
“Upon further review in preparing the materials for the court, and in the spirit of cooperation and trying to make the maximum information available for discovery, the NCAA determined that 13 documents were not protected by the attorney-client privilege or work product doctrine,” NCAA attorney Everett Johnson wrote in a cover letter to Covey on Monday. “The NCAA promptly produced these documents to plaintiffs without any privileged content withheld.”
The NCAA and Penn State are being sued by state Senate Majority Leader Jake Corman, R-Benner Township, and Treasurer Rob McCord over enforcement of the Endowment Act, the legislation that would keep in state hands the $60 million fine imposed by the college sports organization on the university after the Jerry Sandusky child sex abuse scandal. The two sides have been clashing for months on the issue of privilege, both in discovery materials and deposition of witnesses.
The documents produced this week prompted an immediate response from Corman’s attorney, Matthew Haverstick, who called the revelation of the 13 unprotected documents an “astonishing admission.”
Haverstick selected one of those documents as an example. It was a communication between NCAA general counsel and Executive Vice President Donald Remy and the Big Ten’s outside counsel, Jonathan Barrett, with NCAA press officer Bob Williams looped into the conversation.
“The NCAA previously and steadfastly took the position (in a privilege log, at a deposition, and in response to this motion) that this document was protected by privilege,” Haverstick wrote. He cited questions put to Remy about the particular redacted email during deposition, in which Remy confirmed the privilege argument.
Haverstick included the redacted and unredacted copies of the communication as exhibits in his filing.
It starts July 10, 2012, with Remy contacting Omar McNeill, one of the investigators who prepared the Freeh report, the review commissioned by Penn State.
“It is breaking on Twitter that your report will issue on Thursday. Given that you indicated we would get two days notice before the release of the report, can I presume that this is inaccurate?” Remy asked, copying Barrett. The report would indeed be released in less than 48 hours.
Barrett’s reply was originally withheld. It now is shown to say, “The Big Ten is working on a communication to be ready for the release of the Freeh report tomorrow. Do you have a contact at your office for our folks to call to discuss the message?”
Remy’s unredacted reply: “Yes, please have them call Bob Williams.”
“Now the impropriety of the NCAA’s redaction has been laid bare. The document reveals that the NCAA and Big Ten were coordinating their public response to the forthcoming release of the Freeh report,” Haverstick wrote. “The NCAA has previously mocked plaintiffs’ expressed suspicion that the NCAA was improperly redacting discussions of public relations strategy. But the NCAA has now admitted to doing just that, but only in the face of a court order directing the NCAA to submit the document for in camera review.”
In a previous batch of documents, the NCAA gave up privilege to on 172 of 477 documents ordered for review.
Review of the second batch of documents pushed back the trial that had been slated to start next week. It has been postponed until Feb. 17.