Not a Lexis Advance subscriber? Try it out for free.

Clemens v. NCAA (In re Estate of Paterno)

Superior Court of Pennsylvania

September 19, 2016, Submitted.; July 25, 2017, Decided; July 25, 2017, Filed

No. 877 MDA 2015, No. 1709 MDA 2014, No. 878 MDA 2015

Opinion

 [*191]  OPINION BY STABILE, J.:

These interlocutory appeals arise from orders directing production of documents over objections of attorney-client privilege and work product protection. After careful review, we affirm in part, reverse in part, and remand for further proceedings.1

The questions before us pertain to work done by Freeh Sporkin & Sullivan, LLP ("FSS,")2 on behalf of a Special Investigations Task Force (the "Task Force") created by The Pennsylvania State University ("Penn State" and, collectively with FSS, Appellants). The Task Force comprises Penn State trustees, faculty, alumni, and students. Penn State created the Task Force to investigate its handling of the well-publicized scandal involving former assistant football coach Jerry Sandusky. On [**2]  November 4, 2011, the Commonwealth of Pennsylvania charged Sandusky with committing serial sexual offenses against minor boys on Penn State's campus. A jury found Sandusky guilty on multiple counts and he is currently serving 30 to 60 years of incarceration.3

On July 12, 2012, FSS produced a report (the "Freeh Report") detailing its investigation of Penn State's handling of the Sandusky scandal. According to the Paterno parties4 (collectively "Plaintiffs" or "Appellees"), the Freeh Report concluded that the late Joseph V. Paterno, former Penn State head football coach, was aware of  [*192]  allegations of Sandusky's conduct before Sandusky retired in 1999 but failed to take action to address that conduct. Plaintiffs' Second Amended Complaint, 10/13/14, at ¶ 67, 104. "According to the [Freeh Report], Penn State officials conspired to conceal critical facts relating to Sandusky's abuse from authorities, the [Penn State] Board of Trustees, the Penn State community, and the public at large. Id.

The National Collegiate Athletic Association ("NCAA"), defendant5 in this action, adopted the Freeh Report in support of a consent decree whereby Penn State accepted the NCAA's imposition of sanctions for violations [**3]  of the NCAA's constitution and bylaws. Id. at ¶¶ 88-89, 98. According to the consent decree:

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

168 A.3d 187 *; 2017 Pa. Super. LEXIS 570 **; 2017 PA Super 247

ESTATE OF JOSEPH PATERNO; AL CLEMENS, MEMBER OF THE BOARD OF TRUSTEES OF PENNSYLVANIA STATE UNIVERSITY, WILLIAM KENNEY, AND JOSEPH V. PATERNO JR.(JAY), FORMER FOOTBALL COACHES AT PENNSYLVANIA STATE UNIVERSITY v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA), MARK EMMERT, INDIVIDUALLY AND AS PRESIDENT OF NCAA, AND EDWARD RAY, INDIVIDUALLY AND AS FORMER CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE NCAA, AND PENNSYLVANIA STATE UNIVERSITY; APPEAL OF: PEPPER HAMILTON, LLP;GEORGE SCOTT PATERNO, AS DULY APPOINTED REPRESENTATIVE OF THE ESTATE AND FAMILY OF JOSEPH PATERNO; RYAN MCCOMBIE, ANTHONY LUBRANO, AL CLEMENS AND ADAM TALIAFERRO, MEMBERS OF THE BOARD OF TRUSTEES OF PENNSYLVANIA STATE UNIVERSITY; PETER BORDI, TERRY ENGELDER, SPENCER NILES, AND JOHN O'DONNELL, MEMBERS OF THE FACULTY OF PENNSYLVANIA STATE UNIVERSITY; WILLIAM KENNEY AND JOSEPH V. ("JAY") PATERNO, FORMER FOOTBALL COACHES AT PENNSYLVANIA STATE UNIVERSITY; AND ANTHONY 'ADAMS, GERALD CADOGAN, SHAMAR FINNEY, JUSTIN KURPEIKIS, RICHARD GARDNER, JOSH GAINES, PATRICK MAUTI, ANWAR PHILLIPS AND MICHAEL ROBINSON, FORMER FOOTBALL PLAYERS OF PENNSYLVANIA STATE UNIVERSITY, Appellees v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA); MARK EMMERT, INDIVIDUALLY AND AS PRESIDENT OF THE NCAA; AND EDWARD RAY, INDIVIDUALLY AND AS FORMER CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE NCAA, AND THE PENNSYLVANIA STATE UNIVERSITY, Appellants;THE ESTATE OF JOSEPH PATERNO; AL CLEMENS, MEMBER OF THE BOARD OF TRUSTEES OF PSU, AND WILLIAM KENNEY AND JOSEPH V. PATERNO, FORMER FOOTBALL COACHES AT PENNSYLVANIA STATE UNIVERSITY, Appellees v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (NCAA); MARK EMMERT, INDIVIDUALLY AND AS PRESIDENT OF THE NCAA; AND EDWARD RAY, INDIVIDUALLY AND AS FORMER CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE NCAA, AND THE PENNSYLVANIA STATE UNIVERSITY, Appellants

Prior History:  [**1] Appeal from the Order Entered May 8, 2015. In the Court of Common Pleas of Centre County. Civil Division at No: No: 2013-2082.

Appeal from the Order Entered September 11, 2014. In the Court of Common Pleas of Centre County. Civil Division at No: 2013-2082.

Appeal from the Order Entered May 5, 2015. In the Court of Common Pleas of Centre County. Civil Division at No: 2013-2082. Before J. BRIAN JOHNSON, J.

In re Thirty-Third Statewide Investigating Grand Jury, 2012 Pa. Dist. & Cnty. Dec. LEXIS 451 (Apr. 12, 2012)

CORE TERMS

task force, documents, trial court, interviews, Engagement, discontinue, mental impressions, parties, Team, discovery, work product, communications, attorney-client, investigators, anticipation of litigation, disclosure, Drafts, memos, work product doctrine, board of trustees, discoverable, post-remand, interlocutory, appeals, legal research, authorities, protects, notice, work product protection, consent decree

Civil Procedure, Appeals, Standards of Review, De Novo Review, Evidence, Privileges, Attorney-Client Privilege, Scope, Elements, Burdens of Proof, Allocation, Privileges, Burden Shifting, Attorney-Client Privilege, Legal Ethics, Client Relations, Attorney Fees, Discovery, Privileged Communications, Work Product Doctrine, Questions of Fact & Law, Work Product Doctrine, Scope of Protection, Governments, Legislation, Interpretation, Courts, Rule Application & Interpretation, Appellate Jurisdiction, Interlocutory Orders, Dismissal of Appeals, Voluntary Dismissals