Jay Paterno and Bill Kenney filed a document Tuesday accusing the NCAA of bullying.
The two former assistant Penn State football coaches filed a response to the college sports organization’s motion to compel the production of documents.
Paterno and Kenney are the last individually named parties appearing as plaintiffs in the lawsuit that pits the estate of Paterno’s father, longtime Nittany Lions head coach Joe Paterno, against the NCAA, President Mark Emmert, former executive committee chairman Ed Ray and Penn State.
In a filing July 10, attorneys for the NCAA asked Centre County Court to compel former assistant football coaches Paterno and Kenney to produce discovery documents. The NCAA claimed in their motion that the two were dragging their feet in turning over requested documents for discovery in the defamation suit, turning over less than 600 documents between them while the NCAA produced 16,030 documents with more than 50,000 pages.
“The NCAA is apparently less interested in actually obtaining the documents and information that are the subject of its motion than continuing its bullying tactics, including by propounding unduly burdensome discovery requests and engaging in unnecessary disputes in hopes of avoiding trial,” the coaches’ attorneys wrote.
The sticking point for the plaintiffs was not just the contested ideas of what was discoverable and what wasn’t. Timing was part of it as well.
According to the documents, the NCAA filed its papers “just two hours after a lengthy discovery conference” during which the plaintiffs say that few of Paterno’s discovery issues were raised, and none of Kenney’s were brought up.
“Had the NCAA made a good-faith effort to present and resolve its discovery disputes during the July 10 conference, it would have learned that some of the documents it demands had already been produced and that (p)laintiffs were willing to produce others subject to their objections,” the document stated.
They also claimed that the NCAA did not bring up during that conference the issue of the pair’s job hunting history back to 2000, “arguing that (the NCAA) needs that information to determine whether they were ‘chronically unemployable’ for reasons other than the NCAA’s allegedly tortious conduct.” But the plaintiffs fired back that there was no reason for there to be a record of job hunting when the two were employed at Penn State for 17 years for Paterno and 24 for Kenney.
“It is thus unclear how the requested information could even arguably be related to the legal claims in this case,” the attorneys wrote, adding that if there were any communications related to job offers, they would be contained in their Penn State email accounts, which neither has had access to since their 2012 terminations.
Paterno’s memoir was also a sticking point. According to NCAA attorney Thomas Scott, he provided a copy of “Paterno Legacy,” but the defense wanted “the book, every draft of it and every communication about it,” claiming anything central to the book is central to the litigation.
Paterno’s attorneys, however, said there was “no meaningful legal support” for what they termed “a burdensome fishing expedition.”
“Even if there were any probative value to a draft, it is far outweighed by the diversion of resources necessary to comply with the request and deal with the NCAA’s efforts to extract isolated draft statements to support its position,” the document read.
Also at issue was a request from the NCAA to have the court order the men to execute a certification that they attempted to produce documents requested but did not have them.
“That is inappropriate and unnecessary,” the plaintiffs’ attorneys wrote, claiming it was already a requirement under the state Rules of Civil Procedure. “There is no basis to impose an extraordinary and duplicative certification obligation beyond what the rules require and they have already provided. The discovery requirements for Paterno and Kenney should be the same as the discovery requirements for the NCAA.”