Judge rejects Penn State privilege argument in Mike McQueary suit

Another judge has shot down a privilege argument from Penn State.

In documents filed in the Centre County Prothonotary’s Office July 24, Chester County Senior Judge Thomas Gavin filed his opinion on Penn State’s attempt to assert privilege related to discovery requests in Mike McQueary’s whistleblower suit.

Gavin wrote that four elements were necessary to meet the threshold for attorney-client privilege in the requested communications between Penn State spokeswoman Lisa Powers and then-vice president Gary Schultz, copied to former general counsel and trustee Cynthia Baldwin. He acknowledged two of them — that Baldwin is an attorney and Penn State claimed privilege.

The other two — that there was a client relationship to the communication and that legal advice was sought — were where he disagreed.

One aspect that stuck out for Gavin was Powers’ description of the process at a May hearing, where he wrote, “she would include Attorney Baldwin on emails ‘to essentially allow her and other recipients to ‘chime in.’ ”

That phrase is where Gavin wrote that he saw a waiver of the confidentiality of an attorney-client relationship.

Although the emails at question were filed in redacted form Tuesday, Gavin wrote, “there is absolutely no way this email can be read as posing a question to anyone let alone counsel.”

Gavin’s opinion showed the email to include the public statement made by former president Graham Spanier regarding the Jerry Sandusky child sex abuse scandal. Gavin said the email “announced a fait accompli.”

He indicated other referenced emails also did not meet the requirements of privilege.

Gavin ordered the documents delivered to McQueary’s counsel.

Penn State has raised similar privilege arguments in other Sandusky-related cases.

McQueary, a former assistant football coach and key witness against Sandusky, claims he was improperly dismissed from the university.

This story was originally published July 30, 2015 at 7:50 PM with the headline "Judge rejects Penn State privilege argument in Mike McQueary suit."