Lying? To who?
From Mc'Neils deposition:
Page 147:
Certainly the team itself was all instructed that the investigation was to remain confidential, that the attorney-client privilege applied. Those who were members of the team actually signed documents attesting to the fact that they understood and would maintain confidentiality. We communicated that as appropriate to witnesses that were interviewed.
Page148:
Certainly to anyone that was an employee of the university we provided the typical Upjohn warnings, if you will, for those who are familiar with those, essentially letting them know that the investigation was being conducted at the request of the university under the privilege that the university had the right to maintain or waive at any time and, therefore, they were to act accordingly.
Q. To the best of your knowledge, did anybody from the university ever authorize the Freeh firm or the Freeh Group to waive the attorney-client privilege?
A. They certainly permitted us to make the report public. But beyond that, no.
Q. To the best of your knowledge, did the Freeh firm ever waive the protections of the attorney work product doctrine?
A. No.
End of testimony
In internal investigations UpJohn warnings are required. What it does is put the interviewee on notice that only the corporation can waive the A/C privilege and not the interviewee. Except for the limited purpose of releasing of the report, PSU has not waived its A/C privilege and doesn't intend to do so thereby keeping confidentiality of the interviewee intact.
Upjohn held that each case must be evaluated on its own facts to determine whether application of attorney-client privilege would further the underlying purpose of the privilege, which is to encourage candid communications between client and counsel for the purpose of rendering legal advice. Specifically, the court emphasized that the privilege applies when “the communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.