Paterno Estate Ordered to Share Documents from Freeh Report Critique

The estate of Joe Paterno will be required to turn over to the NCAA background and source documents related to its critique of the Freeh Report, and the experts who contributed to it may be subpoenaed for deposition, a judge ruled Tuesday in the ongoing defamation lawsuit by the estate against the college sports governing body.

The Paterno family, meanwhile, was granted its motion to compel discovery of third-party documents from members of the NCAA infractions committee related to the consent decree that levied sanctions on Penn State, Louis Freeh’s investigative report commissioned by Penn State and communication about the Penn State football program and its coaches.

The NCAA argued earlier this month that just as background documents related to the Freeh Report were made available to the Paterno estate, so too should similar documents from the family’s critique of the report by former Pennsylvania Governor and U.S. Attorney General Dick Thornburgh, former FBI profiler Jim Clemente and Johns Hopkins psychiatrist and sexual trauma expert Fred Berlin.

Paterno family attorneys, however, said unlike the Freeh report, for which Judge John Leete previously determined Freeh was not working as an attorney for Penn State, the critique was led by and included consulting experts hired by the family’s legal team, making their background work privileged.

Leete, a specially-presiding judge from Potter County, granted the NCAA’s motion, saying that the family’s publicity of the critique and some of its source documents waived privilege.

“Plaintiffs made public statements indicating that their review of the Freeh Report was a transparent investigation conducted by independent experts,” Leete wrote. “Now plaintiffs seek to place a veil of privilege over any review material they did not choose to disclose to the public. The law does not condone this type of selective disclosure which would grant plaintiffs discretion to use their review materials as a sword and a shield.”

Leete also granted the Paterno motion to receive access to third-party documents that could show what the NCAA told members of its infractions committee about why it bypassed its normal investigative and enforcement methods in favor of the consent decree with Penn State.

The judge wrote that discovery of third-party documents is “reasonably related to the issue of malice, and requiring plaintiffs to substantiate their requests to any greater degree would amount to imposing the impossible burden of proving the existence of material outside of their control.”

Leete did, however, deny the estate’s motion for third-party depositions, calling it “an unduly burdensome means of discovery for the subject matter plaintiffs seek.”

The Paterno estate along with former Penn State football assistant coaches Jay Paterno and Bill Kenney are suing the NCAA, its president Mark Emmert and Oregon State President Ed Ray, the NCAA’s executive committee chair in 2012 when the NCAA issued sanctions against Penn State in the wake of Freeh’s investigation and report on the Jerry Sandusky child sex abuse case.

The lawsuit, filed in 2013, claims commercial disparagement and defamation, citing the use of the Freeh report in the NCAA’s consent decree for sanctions with Penn State, most of which was later repealed or ended early. The plaintiffs say the report and sanctions resulted in damage to commercial interests and values and harmed the former assistant coaches’ ability to find similar work.