Chester County judge Thomas Gavin has ruled that e-mail communications between former Penn State vice president Gary Schultz and public relations director Lisa Powers are not protected by attorney-client privilege.
Penn State attempted to hold the e-mails from discovery within the Mike McQueary wrongful termination lawsuit.
The crux of the argument was that Powers copied university attorney Cynthia Baldwin on the communications “to essentially allow her and the other recipients to chime in,” according to Gavin’s ruling from July 20.
Gavin argued that an invitation to chime in does not qualify as a privileged communication between an attorney and a client.
“My understanding of the term ‘chime in’ is that it invites everyone to whom the e-mail was sent to offer whatever comment they deem appropriate regarding the content of the e-mail,” Gavin wrote. “Asking non-lawyers to comment on the contents of the e-mail constitutes, in my view, a waiver of the confidentiality protected by the rule as the writer is no longer in a confidential relationship with her attorney.”
The three e-mails in question were between Powers and Schultz, with Baldwin and others copied on the exchange. Powers sent a public statement made by then-university president Graham Spanier regarding child abuse allegations against former football coach Jerry Sandusky.
Schultz responded with confirmation that he received the e-mail, and according to Gavin, no request for legal advice was ever made in the exchange.
“It is a statement, not a request for legal advice,” Gavin said. “As such the privilege does not apply.”
The judge’s order immediately unsealed the e-mails, making them available to McQueary and his legal team.
The whistleblower lawsuit alleges that McQueary, a former football coach, was wrongfully terminated by the university. McQueary informed Joe Paterno of a sexual assault he witnessed involving Sandusky and a child in the football building showers. Sandusky was found guilty on 45 of 48 counts against him. One of the three not guilty counts was the shower incident reprted by McQueary.
