Commonwealth Court Judge Anne Covey is willing to look at another 163 documents, but says it’s going to take more time.
In an order Thursday, Covey granted a request from state Senate Majority Leader Jake Corman, R-Benner Township, and Treasurer Rob McCord to conduct an in camera review of documents that the NCAA claims are privileged information. In doing so, Covey also ordered a postponement of the trial, which had been scheduled for Jan. 6.
This is the second time the judge has agreed to review challenged documents in the case. She has not yet returned a decision on the first batch of emails and other communications, which was turned over to her in November. That collection included 477 contested documents.
She ordered that the documents be presented with a complete, unredacted email chain by Dec. 29.
That is one week before trial was scheduled to begin in the case, in which the two state officials are suing the NCAA and Penn State to enforce the Endowment Act.
That legislation, backed by Corman, would keep in a state-run fund the $60 million fine levied against the university by the college sports organization after retired assistant football coach Jerry Sandusky’s 2012 conviction for child sexual abuse.
Because of that, Covey issued a second order, rescheduling the trial for Feb. 17, with a pretrial conference slated for Feb. 3.
Given the delay, Penn State trustee Anthony Lubrano said he would again urge the board to consider the resolution he proposed in November to fight the consent decree.
Lubrano and the eight other alumni-elected trustees held a special meeting Monday to discuss his resolution that proposes that Penn State switch sides in the Commonwealth Court lawsuit brought by Corman, and McCord. The university and the NCAA are defendants in the case, and the nine trustees want Penn State to join the plaintiffs.
But without a quorum, there could be no vote.
Covey’s ruling Thursday apparently takes out of play an offer made earlier in the day by Corman’s attorney.
Matthew Haverstick, of Philadelphia-based Conrad O’Brien PC, wrote in a response to the NCAA’s objections to the request for review that they would withdraw the request if Covey found no documents in the first batch that were “improperly redacted.” Conversely, they asked that a review proceed if any of the 477 were found questionable by the court.
According to Covey’s order, the NCAA is giving up privilege on 172 of the 477 documents in the prior review. Another document was determined to have been a duplicate.
In his response, Haverstick called the NCAA’s continued assertions of privilege “a deliberate strategy to publicly undermine this court’s rulings.”