Paternos, NCAA take shots again in court

The legal volleys between the NCAA and the estate of longtime Nittany Lions football coach Joe Paterno continued Monday as both sides filed papers in Centre County court.

The college sports oversight organization accused the Paternos of hiding behind privilege arguments to avoid discovery and depositions.

“For over a year, plaintiffs have aggressively pushed Pennsylvania State University ... and Pepper Hamilton LLP to release thousands of documents related to the Freeh report, vigorously challenging any assertation of privilege,” wrote NCAA attorney Thomas Scott. “Yet, when the NCAA asked the (estate) to produce documents related to the Paterno family’s own publicly disclosed critique of the Freeh report, the estate refused, claiming privilege for all but a handful of documents.”

The estate filed suit against the NCAA in May 2013, charging them with breach of contract, conspiracy, contractual interference, disparagement and defamation, all part of the aftermath of the Jerry Sandusky child sex abuse scandal.

The heart has been the Freeh report, the Penn State-commissioned review of the incident conducted by former federal judge and FBI director Louis Freeh and his law firm, which has since been merged with Pepper Hamilton. That document laid the blame at the feet of four people, Paterno and three other university officials who have been awaiting criminal trial in Dauphin County connected with Sandusky’s crimes since 2012. Paterno, who died in January 2012, was never charged and prosecutors said there was no evidence of his participation in covering up the assaults by Sandusky, the Nittany Lions’ retired defensive coordinator.

The estate fired back after the Freeh report by commissioning its own assessment, conducted by former Pennsylvania governor and U.S. attorney general Dick Thornburgh, with weigh-in from experts like former FBI profiler and “Criminal Minds” consultant Jim Clemente and psychiatrist and sexual behaviors consultant Fred Berlin. They called the Freeh report’s conclusions into question.

But the NCAA says the Paternos don’t want their experts and report subject to the same rules as the Freeh report.

“Instead, the estate has sought to block discovery of nearly all materials related to the critique ...,” Scott said in his filing.

After months of the Paterno estate protesting the privilege arguments from Penn State and Pepper Hamilton regarding the Freeh documents, the NCAA attorney turned around and quoted the estate’s arguments in his motion.

“The relevance of the material is beyond dispute,” Scott said, claiming that if the Freeh report can be proven true, all of the suit’s claims fall flat.

According to the NCAA, 161,381 pages of documentation in the Freeh report have been turned over by Pepper Hamilton while the estate has produced only 332 pages relative to its critique.

Scott used as proof of the lack of privilege the idea that the completed analysis was always intended for public release, quoting the family and experts on the idea that “the public deserves to know the truth.”

The filed documents included redacted copies and sealed exhibits. Potter County Senior Judge John Leete, specially presiding in the case, signed an order allowing the seal of the unredacted material.

The family, however, was still swinging in their own filings.

There was a request to the Prothonotary’s Office to issue a subpoena to Freeh for a Feb. 3 deposition in New York.

There was also a request to Leete to extend the time for discovery in the case.

After arguments in the fall, a timeline was set that established an end to discovery on Feb. 29. However, after resolving some issues with the Pepper Hamilton disclosures, and confidential documents, the plaintiffs say additional depositions of about 15-20 people will be required. Those could take about two months.

According to the court documents, depositions have been scheduled for Freeh Group investigator Amy Chisolm and NCAA President Mark Emmert, another named defendant to the suit, in January.

This story was originally published January 6, 2016 at 2:51 PM with the headline "Paternos, NCAA take shots again in court."