FC: New Ruling in Paterno v. NCAA
- Thread starter LundyPSU
- Start date
Thanks LundyPSU.
Any volunteers want to offer a summary in English?
Then implications would be good, if posters have opinions.
So, appears info on the interviews is discoverable.
Penn State is denied ACP, and certain materials are discoverable that they tried to hide.
Too bad for everybody that the Paterno's aren't going to settle.
Everybody, that is, except those in search of the truth.
Everybody, that is, except those in search of the truth.
bwifan
Well-Known Member
Kinda nice to have a bit of good information late on a friday for once...just maybe the tide is turning a little bit
Upon first read, not a good ruling - IMO
I don't know how impactful the ruling will be, particularly wrt some of the stuff that I suppose is going on "behind the scenes" (but that is simply my personal conjecture at this point....so I'll leave it at that for the moment)
Some of the high points of the ruling appear to be:
"Penn State" was not the client of FSS......but the Special Investigative Task Force (Frazier's Star Chamber) was a client.
Therefore, wrt "Penn State" not being a client, any communications that looped in PennState folks - or other "third parties" - (who were NOT part of the SITF) lose privilege by including PSU folks as a third party
BIG Fing DEAL!
This is a basic, simple, fundamental tenet of "privilege" law (that 3rd Party inclusion eliminates privilege).....and it was a no-brainer part of the ruling.....
But, Judge Leete went out of his way to emphasize that even those communications were only discoverable to the degree that they were limited directly to the direct subject matter (BTW, his wording is even more convoluted than what I just wrote
. )The chances that the FSS communicated to such folks (the third parties) on such subject matter to make any meaningful stuff discoverable, is slim to none (not saying it's impossible, but given the language of the ruling, highly unlikely - - -and, in the best case scenario, would provide opportunities for the defendants to tie up any meaningful discovery for another decade)
NOW - - THE IMPORTANT STUFF FROM THE RULING - - - AND IT AINT GOOD
Now, all that said, getting at any of the important stuff requires access to the material that FSS claims is "work product"
Judge Leete gave FSS blanket "work product" protection - - - effectively locking up any of the meaningful material, and burying at the bottom of the ocean
That is not good (to say the least)
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Barry: I only scanned the ruling for a couple of minutes, but it looked to me like the ruling found that:
1. The attorney client privilege was completely unavailable for communications between Freeh's law firm and the University because the Special Investigate Task Force ("SITF"), NOT the University, was deemed to be the client.
2. The attorney client privilege for communications between Freeh's law firm and SITF was either completely or largely unavailable because the University (a third party rather than a client) had been included in communications between Freeh's law firm and the SITF, thereby waiving the privilege.
3. The attorney client privilege for attorney work product generally applied to work product (e.g., memos) prepared by Freeh's firm for SITF, with a narrow range of work product being left unprotected by the ruling.
While it would have been nice if the court had left attorney work product unprotected by the attorney-client privilege (because memos from Freeh's firm discussing what those attorneys subjectively thought or believed about the case, and discussing litigation strategy) would have been informative, I think the ruling that attorney client communications are not protected by the privilege is unambiguously good news. Imagine if there are e-mails between Freeh's firm and the University/SITF discussing what the Freeh Report should conclude (or other highly sensitive issues), and those e-mails now have to be produced. There could conceivably be some real smoking gun kind of stuff in those e-mails, no?
1. The attorney client privilege was completely unavailable for communications between Freeh's law firm and the University because the Special Investigate Task Force ("SITF"), NOT the University, was deemed to be the client.
2. The attorney client privilege for communications between Freeh's law firm and SITF was either completely or largely unavailable because the University (a third party rather than a client) had been included in communications between Freeh's law firm and the SITF, thereby waiving the privilege.
3. The attorney client privilege for attorney work product generally applied to work product (e.g., memos) prepared by Freeh's firm for SITF, with a narrow range of work product being left unprotected by the ruling.
While it would have been nice if the court had left attorney work product unprotected by the attorney-client privilege (because memos from Freeh's firm discussing what those attorneys subjectively thought or believed about the case, and discussing litigation strategy) would have been informative, I think the ruling that attorney client communications are not protected by the privilege is unambiguously good news. Imagine if there are e-mails between Freeh's firm and the University/SITF discussing what the Freeh Report should conclude (or other highly sensitive issues), and those e-mails now have to be produced. There could conceivably be some real smoking gun kind of stuff in those e-mails, no?
Conceivably? I suppose.......but very highly unlikely - IMO
If I was interested in keeping the meat of this stuff buried - I would LOVE this ruling. That side got everything they could have hoped for
The elimination of ACP for communications involving third parties was pretty much a no-brainer IMO (woildnt you think?) And even at that Leete set up parameters that, I believe, severely restrict even that discovery.......and laid out easy access for the FSS/SITF side to circle jerk for years and years as to whether or not a specific piece of information fits the parameters
Time will tell.....but my expectations are that a lot of folks will think this is relatively positive, but that the end result - largely due to Leete making an unequivocating ruling that the FSS work product vav SITF is privileged - will be another giant shit sandwich
I'm sure their will be differences of opinions on that......but no one will know for sure until we see how it plays out - - and we will certainly see how it plays out over the next year or so
I most certainly hope I am wrong - and maybe that is how it will play out - but I don't think I am, and the history of the last several years would support that contention
"Freeh Sporkin & Sullivan’s communications with members of Penn State University and its lawyers during the firm’s investigation of the Jerry Sandusky sex abuse scandal are not privileged, a Centre County trial judge has ruled in the suit brought by the family of former Penn State football coach Joe Paterno against the National Collegiate Athletic Association."
PSU FSS and Pepper Hamilton no longer have any excuses for delaying discovery is the silver lining coming out of this ruling, IMHO. Time for a compel motion?
This ruling gets us that much closer to a trial. That's a good thing. Regardless of the details of this ruling, its really the NCAA who needs to show Freeh was above board since they used his report. They are also the ones who need to show PSU was the true culprit in this mess so as to mitigate their damages. It still is, and always has been, the Paterno's primary strategy to make the NCAA do the dirty work with regards to trashing the bot. This may or may not make the NCAA's case harder, but that is primarily their problem.
You said better than I did exactly what I meant. Enough of these non-involved parties causing all the delays!
Sorry if I missed it, but there's this in the following CDT article:
"Law firm Pepper Hamilton, which had merged with Freeh’s firm after the 2012 release of the Freeh report, argued that other information sought by the Paternos constitutes work product generated by FSS for the task force and should be privileged.
Leete agreed.
“The court finds FSS’s attorney work product is not relevant to the subject matter of plaintiff’s claims and thus FSS’s attorney work product is not at issue in this litigation and is not discoverable,” he wrote."
Then there's this:
"He further stated that whether the Freeh report’s findings, such as naming Paterno, former Penn State president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley culpable in the scandal, were true or not was immaterial.
“Whether FSS acted with actual malice or reckless disregard for the truth in reaching the findings in the Freeh report is wholly irrelevant to whether” the NCAA is at fault, Leete decided, deeming internal FSS work product undiscoverable."
These appear to be obstacles to getting to the truth, but the law is the law (I guess that's it).
http://www.centredaily.com/news/local/education/penn-state/jerry-sandusky/article95434047.html
"Law firm Pepper Hamilton, which had merged with Freeh’s firm after the 2012 release of the Freeh report, argued that other information sought by the Paternos constitutes work product generated by FSS for the task force and should be privileged.
Leete agreed.
“The court finds FSS’s attorney work product is not relevant to the subject matter of plaintiff’s claims and thus FSS’s attorney work product is not at issue in this litigation and is not discoverable,” he wrote."
Then there's this:
"He further stated that whether the Freeh report’s findings, such as naming Paterno, former Penn State president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley culpable in the scandal, were true or not was immaterial.
“Whether FSS acted with actual malice or reckless disregard for the truth in reaching the findings in the Freeh report is wholly irrelevant to whether” the NCAA is at fault, Leete decided, deeming internal FSS work product undiscoverable."
These appear to be obstacles to getting to the truth, but the law is the law (I guess that's it).
http://www.centredaily.com/news/local/education/penn-state/jerry-sandusky/article95434047.html
Looks like Leete just cut the NCAA's strategy off at the knees of mitigating damages by blaming the bot.
I guess Leete's ruling is that the issue is not freeh but how the ncaa used freeh's information (his "opinion"). In the end, the ncaa skirted their own procedures and policies and should be held responsible.
Obviously. Since crashing into a tree in the middle of the day doesn't involve police but some sort of federal agent "finds him first," toxicology report goes the way of a Shaner DUI, and nothing ever comes of either.
It all depends on what information is in the unprotected documents. Basically plaintiffs get access to all FSS communications and documents that were distributed by FSS to PSU officials and to other PSU attorneys. The reason is that the court found the client was the Investigation Committee so communications that included other folks in the PSU community were not protected because those folks are not clients.
As others noted, it would seem likely that information in those communications and documents is not going to be very revealing. We do not know for sure, of course, because we do not have copies.
FSS also must turn over documents that do not involve attorney work product. This ruling could bring out important information or it might be nothing. You cannot make something like a document "protected" simply by giving it to your lawyer. But, things like witness interview transcripts, even redacted, could have some key information. Even knowing who was interviewed is important.
Side note: This could also bring out "bad" stuff too. For example, interviews of persons who said bad things about someone involved but FSS decided the interviewee was not believable.
Side note: All of this stuff is still not coming out in public, good, bad or indifferent, unless and until needed as evidence during the case.
As others noted, it would seem likely that information in those communications and documents is not going to be very revealing. We do not know for sure, of course, because we do not have copies.
FSS also must turn over documents that do not involve attorney work product. This ruling could bring out important information or it might be nothing. You cannot make something like a document "protected" simply by giving it to your lawyer. But, things like witness interview transcripts, even redacted, could have some key information. Even knowing who was interviewed is important.
Side note: This could also bring out "bad" stuff too. For example, interviews of persons who said bad things about someone involved but FSS decided the interviewee was not believable.
Side note: All of this stuff is still not coming out in public, good, bad or indifferent, unless and until needed as evidence during the case.
Well "They" were forced to share the entire Freeh Report with the A9 Trustees, none of whom were on the SITF (i.e., that would be considered a "shared" communication with PSU, not the SITF, would it not?), so that would make the entire Freeh Report discoverable, no?
Pretty good summation - IMO.
Bottom line is it is still too early to be able to draw any definitive conclusions.
Logically, any stuff that falls outside of the "protected/privileged" guidelines (as set down by Lette) is unlikely to be of any value - - - but could - if the folks involved really screwed up big time wrt how they dispersed information.
If there is anything of value, the discovery of such will likely (again, as per Leete's ruling language) be tied up in legal motions for quite some time.
So......stop me if you've heard this before
.......we are in "wait (and wait, and wait - - - better grab a Snickers) and see" mode. I think
One thing struck me about Judge Leete's recent 8/12/2016 order
http://co.centre.pa.us/centreco/media/upload/PATERNO VS NCAA OPINION ORDER FILED AUGUST 12 2016.pdf
At page 6 he writes about the Freeh engagement letter; that attorney work-product doctrine protects materials prepared "in anticipation of litigation"; and that his analysis of the engagement letter (discussed in that order at p.3-4) was such that he concluded an attorney client relationship existed between FSS and the SITF.
I bring that up to contrast with Judge Leete's order from 9/11/2014
http://co.centre.pa.us/centreco/media/upload/PATERNO VS NCAA OPINION AND ORDER 9 10 14.pdf
In that order he analyzes the engagement letter at p.19-21 and concludes that at no point does the engagement letter seek "either an opinion of law, legal services, or assistance in a legal matter".
Does this mean Judge Leete significantly changed his assessment of the engagement letter? What nuance am I missing? It may be that Judge Leete's recent ruling is consistent with the second full paragraph on p.21 of his 9/11/2014 order (about Freeh Group International), but I can't really tell.
And with respect to work product (at p.22), Leete writes that "in Pennsylvania, the work product protection is not available unless the requests are made in connection with the litigation for which the material was prepared." That begs the question, was Freeh hired in anticipation of the Paterno vs NCAA litigation?
http://co.centre.pa.us/centreco/media/upload/PATERNO VS NCAA OPINION ORDER FILED AUGUST 12 2016.pdf
At page 6 he writes about the Freeh engagement letter; that attorney work-product doctrine protects materials prepared "in anticipation of litigation"; and that his analysis of the engagement letter (discussed in that order at p.3-4) was such that he concluded an attorney client relationship existed between FSS and the SITF.
I bring that up to contrast with Judge Leete's order from 9/11/2014
http://co.centre.pa.us/centreco/media/upload/PATERNO VS NCAA OPINION AND ORDER 9 10 14.pdf
In that order he analyzes the engagement letter at p.19-21 and concludes that at no point does the engagement letter seek "either an opinion of law, legal services, or assistance in a legal matter".
Does this mean Judge Leete significantly changed his assessment of the engagement letter? What nuance am I missing? It may be that Judge Leete's recent ruling is consistent with the second full paragraph on p.21 of his 9/11/2014 order (about Freeh Group International), but I can't really tell.
And with respect to work product (at p.22), Leete writes that "in Pennsylvania, the work product protection is not available unless the requests are made in connection with the litigation for which the material was prepared." That begs the question, was Freeh hired in anticipation of the Paterno vs NCAA litigation?
Sorry to quote myself, but something no doubt Sollers et al. will point to in attacking the ncaa is not only that Joe Paterno followed university policy and state law in 2001 but that he also followed ncaa guidelines issued in 2014 as to how a member of an athletic department is to respond to allegations of sexual abuse. This further begs the question why emmert and the ncaa handled Penn State as they did in 2012. emmert needs to answer for this on the witness stand under oath. He won't get away with "erickson wanted this," "Penn State wanted this," or "Penn State's trustees wanted this." He needs to answer why he ignored ncaa policies and procedures, Pennsylvania state law, and Penn State's reporting policy.
None of the above in any way excuses the conduct of erickson or the old-guard trustees, but the Paterno's lawsuit is directly about what the ncaa did. Hopefully we will learn through discovery and the trial, and also through the A9's activities, more about what erickson and the old-guard trustees did and why.
Yep.
Again....if I'm on the Freeh/NCAA/PSU BOT side of the table - - - - I am overjoyed at Leete's latest ruling.
We'll see how it plays out, but Leete most certainly backpedaled a LOT from his earlier take...which was:
"It therefore becomes clear that communications between Penn State and the Freeh firm were not sought pursuant to seeking legal services; as such they are not subject to the attorney client privilege. As a result, any source documents Penn State turned over to the Freeh firm for the purpose of conducting the investigation are not privileged. Likewise, any non-source documents created by either Penn State or the Freeh Firm is non privileged."
This latest ruling - IMO - DESTROYS that earlier ruling.....and likely buries the most critical information more securely than Jimmy Hoffa's body.
Time will tell.....and maybe 6 months - or 6 years - from now we can come to definitive conclusions.......those of us who are still alive.
Since this fiasco bubbled to the top of the septic tank.....going back to the date of the GJP......just over 11,500,000 folks have died (in the US alone).
There may be 10 times that many more.....and we may still never have exposed just WTF is driving this entire shit parade.
In any event, most certainly - and even in the best case, many of the "actors" in this abortion will be long gone before any clarity is attained.
Here is the thing ,PSU and NCAA literally have inexhaustible resources and $$$ to delay this trial forever. For both PSU (controlled still by the actors that will do anything not to have the real truth come out) and NCAA/Emmert (see PSU) money is no object in fighting the Paterno's. And if money is no object, a very good law firm (which both PSU and NCAA have) can delay a trial almost in perpetuity. And both PSU and NCAA know that even though the Paterno's have a lot of money, they both have more money so paying millions of dollars per year each to law firms to delay, delay, delay will continue to happen. The only way this ever gets to a real trial with Emmert, BOT members, etc..actually getting on the stand is that a judge finally says enough is enough and forces the two sides to goto trial. And I just see ZERO chance of that happening as their are too many powerful figures in this lawsuit that can influence the judge to make that not happen.
Pretty sure the Paterno's have a lot of supporters in this with deep pockets. I wouldn't worry about that angle.
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