On Nov. 4, the first deposition was taken for the Commonwealth Court lawsuit filed by state Sen. Jake Corman and Treasurer Rob McCord against the NCAA and Penn State to enforce the Endowment Act.
Kevin Lennon, the NCAA’s vice president of academic and membership affairs, sat for seven hours of questioning. According to Corman’s attorneys, it wasn’t exactly productive.
In a document filed Friday, attorney Matthew Haverstick, of Conrad O’Brien PC, said “almost every single question” about the deliberation on the consent decree that led to the historic penalties against Penn State after the Jerry Sandusky child sex abuse scandal was met with an objection.
That’s because of the presence or participation of Donald Remy.
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Remy is the chief legal officer for the NCAA. However, that is not his only role within the organization. He also serves as the NCAA’s executive vice president for law, policy and governance.
“In this way, Mr. Remy served not only a legal role within the NCAA but also an administrative role within the President’s Cabinet,” Haverstick wrote.
He claimed that led to more than 58 objections just on the basis of privilege.
“Indeed, at one point, counsel for the NCAA even insisted that further questioning of an email sent by Mr. Lennon to Julie Roe (who is not a lawyer), which the NCAA produced to plaintiffs in its entirety in unredacted form, could not be permitted because it would involve the potential discussion of privileged matters involving Mr. Remy,” Haverstick wrote.
Roe is the former vice president of enforcement for the NCAA. Emails between her and Lennon discussing “bluffing” Penn State into accepting the consent decree were revealed in exhibits in an early filing in the case.
According to court documents, a second deposition, on Nov. 5, with vice president of communications Bob Williams, Corman’s attorney pointed to the privilege issue, claiming the repeated objections were “meritless” and that if they didn’t stop, the matter would be taken to the court.
The NCAA held ground, the filing says, with Corman’s counsel objecting to 18 more privilege arguments, even on issues that had been discussed for two of the four and a half hours of the deposition.
“That may be your position, but we’re not going to let him say that he discussed all this with legal counsel, because what may be privileged in one context is not privileged in all contexts. And if he discussed this content with legal counsel, it’s privileged,” an NCAA attorney claimed in the deposition transcript.
Haverstick construed the NCAA’s persistence in pursuing privilege as misconduct, saying it “will waste the time of counsel and resources of the parties and frustrate the court’s mandated inquiry into the consent decree,” requesting an order from the court prohibiting the NCAA from invoking the attorney-client privilege or work-product privilege only because an NCAA attorney was a participant in a conversation.
The request was followed with 325 pages of exhibits in the case, including the transcripts of depositions from Lennon and Williams and supporting correspondence.
Last week, Commonwealth Court Judge Anne Covey granted Corman’s motion to have 477 documents, including emails such as those questioned in the depositions, delivered to the court for an in-camera review. That means that the judge will review the documents herself, making a determination on whether they are protected by privilege or if they should be turned over to the plaintiffs as part of discovery in the suit.
A trial on the validity of the consent decree is scheduled for January.