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Judge Shoots Down Attorney-Client Privilege Argument in Paterno Lawsuit

by on November 20, 2014 2:15 PM

A judge has denied a request to put the Paterno family's lawsuit against the NCAA and Penn State on hold.

Penn State has been fighting to keep documents from the Freeh investigation private -- citing attorney-client privilege. That investigation was the basis for the Freeh Report, which found that top Penn State officials were involved in a cover up of the Jerry Sandusky scandal.

At issue are millions of documents that were gathered by Louis Freeh's organization.

In a Sept. 11 ruling the court decided that some communications -- directly between the Freeh Group and Penn State -- may be covered by attorney-client privilege. However, that protection was not extended to other documents.

Penn State filed an appeal to Superior Court, and was joined by Pepper Hamilton LLP, the successor to Freeh's original law firm, Freeh Sporkin & Sullivan.

In a ruling filed Thursday morning, judge John Leete of Potter County who is specially presiding over this case, says that to grant a stay a number of conditions must be met. The petitioner must make a strong showing that they are likely to win and that without a stay, will suffer "irreparable injury."

Attorneys for Penn State previously told the court that "Without a Stay ... Penn State will suffer irreparable harm because the privilege cannot be recovered once documents are produced."

However, the judge decided that's not the case. In his ruling Leete wrote, "Because Pepper Hamilton has failed to make a strong showing that Penn State will succeed on its appeal, neither a stay nor a protective order is warranted."

Moreover, the judge says Penn State cannot authorize disclosure of the Freeh Report's contents in a national news conference and then deny access to information underlying the report's conclusions. The judge says, "Penn State is attempting to invoke the Attorney-Client privilege as both a shield and sword."

Former university trustee Al Clemens and former football coaches Jay Paterno and William Kenney are also plaintiffs along with the Paterno estate.

Their lawsuit asks for monetary damages and to have the consent decree Penn State signed with the NCAA overturned. The lawsuit includes five allegations: breach of contract, intentional interference with contractual relations, injurious falsehood and commercial disparagement, defamation, and civil conspiracy.

The consent decree paved the way for the NCAA to impose harsh sanctions on Penn State's football program. That included the loss of scholarships, a ban on bowl appearances, the vacation of 111 wins under former head coach Joe Paterno, and a $60 million fine.

Former Penn State Assistant Football Coach Jerry Sandusky was convicted for sexually abusing several young boys. He's now serving 30 to 60 years in state prison.

Three former Penn State executives still face trial in connection with an alleged cover up of Sandusky's crimes. They include former president Graham Spanier, former athletic director Tim Curley and retired senior vice president for finance and business Gary Schultz. All three men say they are innocent and promise to vigorously defend themselves in court.

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Steve Bauer was the Managing Editor of StateCollege.com. Steve and his wife Trina are longtime area residents. They reside in State College along with a wacky Golden Retriever named Izzy.
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