The discovery battle between the estate of longtime Penn State football coach Joe Paterno and the university’s law firms saw scores on both sides with an order posted Friday.
The order was dated Thursday, when Potter County Senior Judge John Leete, specially presiding in the Centre County case between the Paternos and the NCAA, signed it.
The estate has fought with the university and its lawyers for years over what information should be released and what shouldn’t in the case. Penn State was previously a party to the lawsuit but has since been removed. However, the discovery of information related to the Louis Freeh investigation of the Jerry Sandusky child sex abuse scandal is still at the heart of the case.
Penn State has argued that it has an attorney-client relationship with Freeh, Sporkin and Sullivan, one of the firms of former FBI director Freeh.
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Leete said no.
“The court finds that Penn State was not a client of FSS and does not have standing to assert the attorney-client privilege ...,” he wrote.
That is because the client wasn’t the university, but the special investigative task force, as established by the engagement agreement between FSS, the SITF and the board of trustees that specified the relationship was “solely related to the task force,” a body set up specifically to have autonomy separate from the university.
Leete also found that FSS waived that privilege with every communication that brought in another party, like trustees, other Penn State lawyers, or representatives of the NCAA, Big Ten or the Office of Attorney General.
Law firm Pepper Hamilton, which had merged with Freeh’s firm after the 2012 release of the Freeh report, argued that other information sought by the Paternos constitutes work product generated by FSS for the task force and should be privileged.
“The court finds FSS’s attorney work product is not relevant to the subject matter of plaintiff’s claims and thus FSS’s attorney work product is not at issue in this litigation and is not discoverable,” he wrote.
He further stated that whether the Freeh report’s findings, such as naming Paterno, former Penn State president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley culpable in the scandal, were true or not was immaterial.
“Whether FSS acted with actual malice or reckless disregard for the truth in reaching the findings in the Freeh report is wholly irrelevant to whether” the NCAA is at fault, Leete decided, deeming internal FSS work product undiscoverable.
In a further supplemental opinion, Leete said there were still ongoing objections in the case that he returned to the state Superior Court.