by Jenn Miller
In the second part of a two-part hearing for the Paterno family lawsuit against the NCAA and Penn State, attorneys made arguments in court Monday regarding the Paterno family’s desire to issue a subpoena allowing them access to roughly 3.5 million documents related to the Louis Freeh investigation.
Discussion in the second part of the hearing — which started about 12:15 p.m. at the Centre County Courthouse before Potter County Judge John Leete, who is specially presiding over the case — was related to the proposed subpoena.
The disputed proposed subpoena asks for a slew of documents from the Freeh report.
Penn State objects to the proposed subpoena, saying in part the request for such documents and other information, including phone records and emails, violates attorney-client privilege and attorney work privilege.
Plaintiffs’ attorney L. Joseph Loveland says Penn State does not have a credible argument and that the university agreed to a waiver for the Freeh investigation, which means the documents should be made available and in what manner.
“We want that database. … (Freeh) has looked at it and we’re willing to look at it as well, and we think we’re entitled to that,” says Loveland. “We’d like to see what the documents actually say. We’d like to know what the facts are. And we don’t know why people are saying keep a complete curtain on it. … Let’s get on with it.”
At the same time, Penn State attorney Donna Doblick says while the university agreed to a waiver for the Freeh Report, it was not a blanket waiver that would include protected items, such as notes an attorney wrote while interviewing a Sandusky victim.
Doblick also says Loveland’s allegation Penn State is keeping a curtain over documents “is abjectly not the case.”
Additionally, Doblick says the millions of targeted documents include unrelated items related to issues such as real estate and student discipline and therefore the database should not be released “wholesale.”
The pending subpoena targets the Pepper Hamilton law firm, the successor to Freeh’s original law firm. However, Penn State attorney Donna Doblick says Penn State has custody of the database and is willing to run key terms in the system to identify documents the plaintiffs want to review.
Loveland says he will submit key terms to Penn State to search in the Freeh database. At the same time, the court is expected to determine more specifically what documents should be released.
In a related discussion about discovery, Paterno family attorney Patricia Maher accused Penn State and the NCAA of delaying the process by failing to release documents that the plaintiffs believe clearly should be turned over.
“At the end of the day, the NCAA told us regardless of how we narrow the request…that ultimately they were going to wait until there was an order from this court…so that left us with no choice but to come to the court and say that we do need an order,” says Maher. “Our effort has been to get discovery going in a meaningful way…and we feel we have been stonewalled.”
At the same time, Penn State and the NCAA say they are willing to turnover relevant documents if the request was more concise and if the court issued a protective order mandating the documents only be used for litigation purposes.
NCAA attorney Brian Kowalksi says the plaintiffs’ unwillingness to agree to such an order creates a concern.
“We didn’t expect that to be much of a dispute…we thought that would be a fairly easy thing to agree to,” Kowalksi says.
Kowalksi also says documents should not be released “for the purposes of a PR campaign.”
Additionally, Kowalksi says the NCAA is not stonewalling the plaintiffs and has turned over more than 4,000 documents. Maher says the documents were all documents already in the public domain.
Discussion during the first portion of the hearing was heavily related to the consent decree Penn State agreed to with the NCAA following the news of the child sexual abuse scandal by former Penn State football coach Jerry Sandusky.