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Paterno Family and NCAA at Odds Over Protection Order in Lawsuit

by on July 04, 2014 7:00 AM

The Paterno family wants the freedom to release any and all documents associated with a lawsuit against the NCAA and Penn State, while the NCAA claims the Paterno family and co-plaintiffs could use that freedom to push their own 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 release.

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 Jerry Sandusky child sexual abuse 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. However, there is one provision the NCAA would like to see implemented, which the plaintiffs challenge.

In question is whether documents related to litigation can be released publicly. 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 say such a 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."

Penn State hired Louis Freeh, former FBI director, to investigate the handling of the Sandusky scandal. After Freeh's report found significant wrongdoing on the part of the university, the NCAA leveled unprecedented sanctions against Penn State's football program. The sanctions included a reduction in football scholarships, a ban on bowl appearances, and the vacating of 111 wins under Paterno.

"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."

In a separate filing Thursday, the NCAA 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. The NCAA cited comments the Paterno family and its representatives have made, including the use of social media, about the case.

"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.

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."

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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Jennifer Miller is a reporter for StateCollege.com. She has worked in journalism since 2005. She's covered news at the local, state and national level with an emphasis on crime and local government.
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