Penn State and Freeh firm fire back at Paterno estate protest

While the estate of former Penn State football coach Joe Paterno is trying to get the court to unseal documents, Penn State and a law firm are countering that the papers are properly restricted.

The Paternos are protesting the designation attached to documents turned over by Pepper Hamilton LLC, the law firm that merged with Freeh, Sporkin and Sullivan, the partnership of former FBI director and federal judge Louis Freeh, who conducted the university-commissioned investigation into the Jerry Sandusky child sex abuse scandal.

After more than a year of debate in the court, Pepper Hamilton turned those documents over last month, but tagged them as “Highly Confidential — Attorneys’ Eyes Only,” a designation specified under the protective order agreed to by both sides last year.

On Thursday, Pepper Hamilton rebutted the estate’s protests. “These materials are already available to plaintiffs’ counsel and their further disclosure to the plaintiffs is highly likely to have a deleterious effect — not only on Pepper Hamilton and Penn State but also on the legions of individuals who cooperated with the Freeh Firm during its investigation under promises of confidentiality,” wrote attorney Thomas Zemaitis.

At the core, Pepper Hamilton’s argument centers around what they have been claiming for months, that the documents should be covered by attorney-client privilege and work product grounds, including “highly sensitive notes of hundreds of interviews conducted by the Freeh Firm lawyers and their colleagues, emails among the Freeh investigation team discussing strategies, potential areas of inquiry and tentative observations, confidential assessments of individuals and documents and drafts of the Freeh report.”

The courts have ordered repeatedly to have the documents produced, but Zemaitis pointed out that the work-product argument has never been struck down, claiming that the September 2014 order said Penn State lacked standing to assert that protection, that the November 2014 order said Pepper Hamilton was obligated to raise the argument in writing, which it had not, and the most recent order in May merely said the court lacked jurisdiction to consider the argument, which was also being appealed to the state Superior Court.

That appellate case is part of Pepper Hamilton’s current objection.

“If the Superior Court sustains the privilege claims, then Pepper Hamilton will have a right to claw back the documents from plaintiffs’ counsel, and plaintiffs will not be able to make up any use whatsoever of their contents,” Zemaitis wrote.

But if those documents have been disclosed to the plaintiffs themselves, he argued, that privilege would be lost.

Penn State attorney Daniel Booker concurred in his own document supporting Pepper Hamilton’s position.

“ ... Plaintiffs profoundly misrepresent the terms of the protective order,” he wrote.

Estate attorneys said in their motion to strike the designation that the category was meant to protect sensitive personal information, including that of Sandusky’s victims. Penn State claims many more people are covered by the privacy protections inherent in the Highly Confidential category.

“Plaintiffs’ motion runs roughshod over those individuals very legitimate privacy interests,” Booker wrote.

Zemaitis also took aim at Paterno’s sons, Scott and former assistant coach Jay Paterno, who is a separate plaintiff to the suit in that position, along with Bill Kenney. Zemaitis said that despite arguments that they could be trusted with the confidentiality, there were problems with that.

“The activities in this case are routinely reported in the press, as are commentaries on the Freeh report itself and the Paterno family has a website that collects media reports supportive of their position,” he wrote. “Jay Paterno and Scott Paterno also both regularly use social media, including Twitter, to attempt to sway public opinion to their point of view.”

Zemaitis said the temptation to use confidential information to advance their cause “would be great.”

This story was originally published September 3, 2015 at 7:44 PM with the headline "Penn State and Freeh firm fire back at Paterno estate protest."