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Paterno v. NCAA Update: Paterno Estate Fires Shot At Penn State

Old Main Fall 2012

By Jenn Miller

The family of Joe Paterno continues to make its case to serve a subpoena against the university and its legal counsel.

Last week, Penn State filed yet another motion reiterating its objection to the Paterno family’s desire to issue a subpoena to the NCAA and Penn State. The disputed proposed subpoena asks for a slew of documents from the Louis Freeh investigation.

The Paterno family is seeking the subpoena as part of a lawsuit against the NCAA and Penn State. In the suit, the family asks for damages related to the unprecedented sanctions the NCAA leveled against Penn State’s football program following the arrest of Jerry Sandusky. It also asks the court to overturn the consent decree between Penn State and the NCAA that allowed the NCAA to impose the sanctions.

The pending subpoena targets the Pepper Hamilton law firm, the successor to Freeh’s original law firm.

The Paterno family filed a response to Penn State’s objections in Centre County court Monday. In the filing, the Paterno family says Penn State’s objections are improper, meritless and do not justify barring the issuance of the subpoena.

“A year after his case was filed, the (NCAA), now joined by (Penn State), continues to do anything it can to prevent discovery from going forward,” Paterno family attorney Thomas Weber writes. “Penn State’s objections to the plaintiff’s subpoena to Pepper Hamilton seeking the raw material underlying the Freeh Report is simply one of several steps these defendants have taken to slow down the discovery process.”

Penn State objects to the proposed subpoena saying the request for such documents and other information, including phone records and emails, violates attorney-client privilege as well as other privileges.

Additionally, the university says the demands are unrealistic and overly costly. During the Sandusky investigation, the Freeh firm collected more than 3.5 million emails and other documents, according to the university.

Penn State also says many of the documents requested are already part of public domain and therefore plaintiffs should be able to access them on their own.

Penn State also asked the court not to approve any subpoena until after the court issues a protective order related to the documents.

The Paterno family has argued Penn State’s objections “lack foundation;” the work of the Freeh report is not a protected work product; Penn State’s objections are “improper;” and that Penn State did not properly assert attorney-client privilege.

A hearing on the matter is slated for May 19 at the Centre County Courthouse before Potter County Judge John Leete, who is specially presiding over the case.

Additionally, the NCAA says the Paterno family has made unsuccessful attempts to discredit the Freeh report developed by independent investigator and former FBI director, which indicated senior administrators at Penn State allegedly tried to cover-up the Sandusky abuse.

“To date absolutely nothing has come out in the public domain to shake any confidence in Judge Freeh’s report, let alone show it was unreasonable for the NCAA and Penn State to rely on it in 2012, other than the purported findings of paid consultants working at the direction of the Paterno Estate,” the NCAA says.

The Paterno family challenged that statement in its filing Monday.

“(A)lthough it is running from merits in court, (the NCAA) has continued to peddle this misleading information to the media, adding further insult to injury to the irreparable injuries it has already caused,” the filing states.

The filing goes on to state, “As part of this delay and conceal strategy, the NCAA has openly threatened Penn State with additional sanctions, including the so-called ‘death penalty,’ if Penn State does not come to heel. … It is not surprising that the NCAA and its allies do not want this litigation to shine a light on the NCAA’s egregious misconduct, for they are the ones who ran roughshod over plaintiffs’ rights when they imposed the consent decree and, without process, accused plaintiffs of being complicit in horrific acts. But the judicial system does not allow the ‘accept our word’ approach that the NCAA and Penn State have adopted.”

The lawsuit includes five allegations: breach of contract, intentional interference with contractual relations, injurious falsehood and commercial disparagement, defamation, and civil conspiracy.

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