Penn State: Paterno Estate Lawyers Have Begun ‘Frontal Assault’ on University Rights

Penn State attorneys are now accusing the estate of former head football coach Joe Paterno of launching “a frontal assault” on the university’s legal rights.

A pile of documents gathered by the former FBI director Louis Freeh during his investigation at Penn State in the wake of the Jerry Sandusky child sex abuse scandal sits at the center of the dispute.

The Paterno estate wants the law firm of Pepper Hamilton (which acquired Louis Freeh’s firm in 2012) to produce a large number of Freeh investigation documents as part of the lawsuit it filed against the NCAA. Pepper Hamilton is not a party to the lawsuit, but has become increasingly entangled in the case.

In new court documents filed Monday, Penn State says the disputed documents are protected by the legal tools of attorney-client privilege and work-product doctrine, and argues against their release.

Penn State objected when the Paterno estate first filed their notice to serve a subpoena on Pepper Hamilton, but the Centre County Court of Common Pleas overruled most of the objections in September. Penn State has since appealed that decision to the Superior County, but attorneys for the Paterno estate have asked the court to enforce the subpoena before a ruling is made on the appeal.

Penn State says this “improper end-run around the Superior Court” is an attempt to “cut the legs out from under that appeal.” University lawyers note that the subjects interviewed by Freeh’s team were promised that their remarks would be protected by attorney-client privilege.

“To compel the disclosure of those confidential interview notes while Penn State’s appeal is pending would work a significant injustice,” Monday’s filing reads.

Penn State also argued the court made a mistake when it first overturned the university’s objections to the subpoena. The court found that Penn State and the Freeh group did not have an attorney-client relationship, but Penn State says nothing could be further from the truth.

Monday’s filing lists numerous excerpts from the engagement letter with the Freeh group that make explicit references to Freeh’s team providing legal services, legal counsel and legal representation — all of which Penn State claims would create attorney-client privilege between Penn State and the Freeh group.

Penn State asks the court to deny the Paterno estate’s request to enforce the subpoena on Pepper Hamilton.

The plaintiffs in the suit — which includes the Paterno estate, former Penn State assistant football coaches Jay Paterno and William Kenney and former university trustee Al Clemens — first filed their suit against the NCAA in May 2013. They argue that the NCAA overstepped its authority in the aftermath of the Sandusky child sex abuse scandal, ultimately decreasing the value of the Paterno estate and making it more difficult for Jay Paterno and Kenney to find work.

Pepper Hamilton is entangled in the case because it acquired the law firm of Freeh, Sporkin and Sullivan in 2012. Freeh and his team of investigators were hired by Penn State in 2011 to determine what actions or inactions allowed the Sandusky scandal to unfold. The Freeh Report was released in 2012, and ultimately formed the basis for the NCAA’s punitive sanctions against Penn State.

The lawsuit is subject to a confidentiality agreement. If the court does force Pepper Hamilton to produce the Freeh investigation documents, they would be filed under seal and would not be made available to the public.

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