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Penn State-Paterno Legal Sparring Continues As University Files Protection Order

By Jenn Miller

Penn State has asked a court to implement a protection order preventing the release of pre-trial documents that the university fears the Paterno family will use to push a public relations agenda.

The Paterno family and co-plaintiffs said in a court filing Thursday any and all documents related to pre-trial proceedings in the lawsuit against the NCAA and Penn State should be free for public distribution.

Penn State said in a court filing Monday plaintiffs are challenging the proposed provision because it would interfere with their “public relations campaign.”

“The university does not seek to interfere with the plaintiffs’ right to pursue any claims that the court may rule they are entitled to pursue in this litigation,” Penn State says. “… But statements by the plaintiffs and their public relations consultant, together with plaintiffs’ refusal to agree to perfectly innocuous language in a protective order … make clear that plaintiffs may either make these private emails and other documents public themselves or provide them to others to do so for reasons outside of the legitimate purposes of litigation.”

The NCAA also argues the provision in the protection order is necessary because the plaintiffs’ seem to want to distribute select documents through the news media and other outlets.

“Defendants thus have a well-founded concern that during the pretrial discovery phase, plaintiffs will inappropriately and selectively provide private discovery materials to the media, post them on their website or otherwise release these materials en masse,” the NCCA says.

The lawsuit — filed by the family of the late Penn State football coach Joe Paterno, current and former university trustees, Penn State faculty members, former coaches and former players — asks for damages from the NCAA and Penn State related to the fallout of the Sandusky scandal.

Recently, attorneys on both sides of the case developed a protection order for Centre County Common Pleas Court to consider with much of the language agreed upon by all three parties with the exception of one provision.

In question is whether documents related to litigation can be released publicly. Penn State and the NCAA would like to see all documents in the case be used “solely for the purpose of preparing and prosecuting the parties’ respective cases, and shall not be used or disclosed for any other purpose.” The provision would exclude items entered into the public judicial record for the case or items “a party legitimately obtained through public sources.”

In a filing Thursday, plaintiffs argued the proposed provision would be a “back-door effort to obtain a blanket gag order” and “contrary to both public policy and the public’s right to know what really happened during the investigation of Jerry Sandusky’s criminal conduct at Penn State by the Freeh firm and the NCAA.”

“Now, however, the prospect of public scrutiny of the information underlying their ‘rush to judgment’ is not nearly so appealing to the NCAA and other defendants as was the press coverage they orchestrated in 2012,” plaintiffs say. “It is perhaps understandable, for example, that the NCAA does not want the pubic to know the nature and extent of its contacts with the Freeh firm before the release of the Freeh report, or the flimsy bases for certain conclusions of the report.”

At the same time, as part of discovery in the case, plaintiffs have asked for more than 3.5 million documents from the NCAA and Penn State. The NCAA argues plaintiffs will use select documents to project a slanted view in the case.

“The NCAA believes this litigation will establish the baseless nature of plaintiffs’ claims. However, the NCAA defendants should not be subjected to selective and prejudicial disclosures of documents to attempt to create adverse publicity aimed at manipulating the public perception of this matter,” the NCAA says. “Information should be learned through discovery belongs in the courtroom, not on Twitter.”

Penn State argues giving plaintiffs access to the entire database would give them access to documents protected under attorney-client privilege and other protections. As an alternative, Penn State has offered to search the database based on terms plaintiffs provide and then turn over “any non-privileged documents that are relevant to any of plaintiffs’ claims …”

Through that process, Penn State says some confidential documents relevant to the lawsuit could be pinpointed and it is those documents Penn State wants to see covered in the protection order before handing them over to the plaintiffs.

If the court approves a protection order, it would only apply for pre-trial proceedings, not during trial as those rules would be set by the trial judge. Anyone violating a protective order could face contempt of court charges.

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