NCAA and Paterno Estate Clash over Discovery Extension Request in Lawsuit
January 21, 2016 12:45 PM
by Zach Berger
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The NCAA isn't sold on the Paterno estate's argument for a 60-day extension in the discovery process for a lawsuit that has already been two and a half years in the making.

"An extension is warranted to allow plaintiffs time to pursue discovery with the benefit of key documents that have just become available to them in the past month after a lengthy effort to obtain them," attorneys for the Paterno estate wrote earlier this month in a court filing.

The extension request comes after the court ruled in favor of the Paterno side, agreeing that Pepper Hamilton -- the law firm that acquired former FBI director Louis Freeh's firm -- can't put a blanket "Highly Confidential -- Attorneys' Eyes Only" label on its documents.

The Paterno estate, along with former Penn State football coaches Jay Paterno and William Kenney, are suing the NCAA, its president Mark Emmert, its former chairman Edward Ray, and Penn State for alleged breach of contract and defamation. They are seeking damages related to the defamation charge, which the coaches argue has hampered their careers and job opportunities.

The plaintiffs saw the "highly confidential" label as a hindrance in discovery, arguing that while they could still use the documents in depositions, they would need witnesses to submit to the court order in writing and agree to confidentiality regarding those Freeh Report documents. 

The NCAA disagreed with that argument on Wednesday in a court filing from attorney Thomas W. Scott, who is representing Emmert, Ray, and the NCAA as defendants in the civil suit.

"The plaintiffs' position that their efforts to pursue discovery have been 'stymied ... for months' is unsupported," Scott said. "[They] blame their delay solely on non-party Pepper Hamilton's purported 'refusal to allow [them] access to' documents related to the Freeh investigation and report, as well as Pepper Hamilton's designation of such documents as 'Highly Confidential ... Attorneys' Eyes Only' once it produced them. 'Attorneys' Eyes Only' designations are common in civil litigation, and it is not at all clear why the plaintiffs contend they have created some unusual or unique obstacle here."

Scott argued that Pepper Hamilton has been submitting to discovery requests since July 2015, following a court order from early May that the law firm do so. Scott believes that the plaintiffs have delayed the process themselves by choosing not to schedule depositions until the "highly confidential" issue was resolved. 

"Pepper Hamilton's designation of its own documents as 'Highly Confidential' certainly had no impact on the plaintiffs' ability to depose the current and former personnel of Pepper Hamilton itself, whose depositions [they] are only now attempting to schedule," Scott wrote.

The plaintiffs filed subpoenas on Wednesday, seeking to depose two members of Freeh's former team: Gregory Paw and Kathleen McChesney. Paw is currently a Pepper Hamilton attorney, while McChesney now leads her own consulting firm.

In closing, Scott reiterated his opinion that the delays in discovery have been caused by the plaintiffs, arguing that an extension shouldn't be provided for that reason.

"The NCAA has diligently complied with its discovery obligations and pursued discovery (including depositions) to defend against the plaintiffs' claims," Scott said. "By contrast, the plaintiffs have inexplicably drug their hells throughout the discovery process. ... In short, any difficulty in completing discovery is a challenge of [their] own making."

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