NCAA seeks to compel Jay Paterno, Bill Kenney to turn over documents

After having been accused of foot-dragging with discovery in other court cases, the NCAA is now claiming that someone else isn’t turning over information.

In a filing Monday, attorneys for the college sports oversight organization asked Centre County court to compel former Penn State assistant football coaches Jay Paterno and Bill Kenney to produce discovery documents.

“From the beginning of this case, plaintiffs have taken the view that they can accuse but never have to explain, that they can play offense, but never have to defend. But this is a neutral forum and a level playing field. It is time for plaintiffs to try and prove what they allege: that statements in the consent decree (from the Freeh report) are demonstrably false, that the (NCAA) knew they were false in July 2012, and that plaintiffs have somehow been injured by the NCAA,” attorney Thomas Scott wrote.

The coaches are plaintiffs in the case, along with the estate of former Nittany Lions football coach Joe Paterno, in which they charge the NCAA, President Mark Emmert, former executive committee chairman Ed Ray and Penn State with breach of contract. The NCAA is also accused of tortious interference, defamation, conspiracy and commercial disparagement, all arising from the aftermath of the Jerry Sandusky child sex abuse scandal.

A declaration from attorney Sarah Gragert outlined a discovery timeline that started in May 2014 with a request for Paterno and Kenney to produce materials. She said that, in June 2014, more time was requested and, in July 2014, they submitted responses and objections, but no documents were produced at that time.

According to Gragert, Paterno’s first production was in April, when he turned over 21 documents. Twenty-one more were produced in May, she wrote. In the declaration, she said, 525 documents were produced by Paterno.

“Only after the NCAA finally communicated its intent to file this motion did he make a meaningful production, in June of this year,” Scott wrote.

The filings claim that Kenney produced three documents in May, one of which was a compilation of 23 employment applications and “some related communications,” and 14 documents in July. Scott claimed he “all but ignored” the NCAA’s requests and has failed to schedule his deposition.

The NCAA, Gragert said, “has produced 16,030 documents in this case, comprising 50,327 pages, through 12 rolling productions.”

“... Their refusal to produce documents relevant to the claims they brought has prejudiced the NCAA’s ability to prepare for trial,” Scott wrote, asking the court to order a prompt response.

However, some of the lack of production is documented. According to the NCAA’s own filing, certain material has been deliberately withheld, including that about Paterno’s book, the coaches’ incomes from January 2006 to December 2010 and their job-seeking prior to the Sandusky scandal.

When asked to produce information about the book, Scott said, Paterno provided a copy of the book, but the NCAA wants “the book, every draft of it and every communication about it,” claiming anything central to the book is central to the litigation. He also claimed that Paterno’s assertions of confidentiality are unfounded in light of the protective order entered by the court in the case.

Scott included 183 pages of exhibits, such as excerpts from Paterno’s book, “Paterno Legacy,” and copies of his communications with some potential employers, including Fox Sports, Maryland and Ohio State.

Paterno and Kenney — in this suit and a suit filed against the university — have argued that, in the wake of the Sandusky case, they have been defamed, harming their prospects for other coaching positions.

Among the documents released in Monday’s filing are handwritten letters from Paterno to head football coaches at other universities seeking employment.

In a letter to Ohio State coach Urban Meyer, for example, Paterno says he would be “a valuable asset” to Meyer’s program and touts a “diverse set of experiences on and off the field.”

The requests in the filing come after repeated demands that the NCAA comply with discovery requests in another related suit.

In state Senate Majority Leader Jake Corman’s lawsuit against the NCAA and Penn State over enforcement of the Endowment Act and the $60 million fine levied against the university under the terms of the consent decree, the NCAA was repeatedly accused of withholding documents. Commonwealth Court Judge Anne Covey demanded hundreds of documents be turned over to the court for evaluation of the organization’s assertion of privilege in holding back requested material.

Plaintiffs’ attorneys did not respond to emails for comment.

This story was originally published July 13, 2015 at 3:45 PM with the headline "NCAA seeks to compel Jay Paterno, Bill Kenney to turn over documents."