NCAA and Paterno Family Debate Protection Order in Lawsuit

In a lawsuit filed by the family of the late Penn State football coach Joe Paterno that asks for damages from the NCAA and Penn State, attorneys are at odds over a proposed protection order for evidence in the case.

Attorneys 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 Paterno family challenges.

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.”

Attorneys raised the issue in May before Potter County Judge John Leete, who is specially presiding over the case.

Penn State and the NCAA said at the hearing in May they were willing to turnover relevant documents to Paterno family attorneys 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 said at the hearing the plaintiffs’ unwillingness to agree to such an order created 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.

After the hearing, attorneys from all parties discussed a protective order to narrow differences and identify issues for the court to review, according to court records. Attorneys filed a motion for a protection order Monday, which included two versions: one with the disputed provision and one without the language. Attorneys ask the court to consider both options.

The protection order would only apply for pre-trial proceedings, not during a trial as those rules would be set by the court. Anyone violating the order could face contempt of court.

Also this week, attorneys for each party are expected to file responses in support or opposition of the proposed protection orders.

The Paterno family is suing the NCAA and Penn State, asking for damages related to the sanctions the NCAA leveled against Penn State’s football program following the arrest of former Penn State football coach Jerry Sandusky, who is now a convicted pedophile.

Penn State hired Louis 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.

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