Paterno Family, NCAA and Penn State Make Arguments Over Freeh Documents
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 into the Sandusky scandal.
Discussion in the second part of the hearing started at about 12:15 p.m. at the Centre County Courthouse before Potter County Judge John Leete, who is specially presiding over the case.
The disputed subpoena request asks for a slew of documents from the Louis Freeh investigation regarding how Penn State handled the Jerry Sandusky child sexual abuse scandal and how the NCAA reached the decision to issue unprecedented sanctions against the university.
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.
"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 that 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 word 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.
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 monetary damages related to the sanctions the NCAA leveled against Penn State's football program following the arrest Sandusky, who is now a convicted pedophile.
Sandusky was ultimately convicted on 45 counts of child sex abuse. He is serving a 30 to 60 year sentence in state prison.
Discussion during the first portion of Monday's hearing was concentrated on 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.
NCAA attorney Everett Johnson Jr. argued that the plaintiffs' claims the NCAA held a "gun to the head" of Penn State forcing the university to agree to the unprecedented sanctions is false and that Penn State simply had a choice between two undesirable options – sign the consent decree with provisions like a ban on bowl games or see the entire football program suspended.
"At the end of the day, it's just a game on a Saturday," says Johnson.
Plaintiffs' attorney L. Joseph Loveland later responded, "It's not just a football game on a Saturday morning."
Penn State attorney Daniel Booker also said it appears plaintiffs are dismissive of the university's position in the case and that there is a perception the NCAA is so powerful therefore the claims of Penn State are not taken seriously.
"The view the university's position should be ignored really flies in the face of what is now really two years of complying with the consent decree which in some important ways has made the university stronger," Booker says.
Booker acknowledged the consent decree was "harsh," but at the same time "it did resolve serious threatened litigation."
Penn State hired Freeh, former FBI director, to investigate the scandal. After the Freeh Report was issued, which 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.