Estate of Paterno v. National Collegiate Athletic Ass'n
168 A.3d 187
| Pa. Super. Ct. | 2017Background
- Penn State formed a Special Investigations Task Force (SITF) and retained Freeh Sporkin & Sullivan (FSS) to investigate Jerry Sandusky; FSS produced the Freeh Report concluding Paterno and others concealed misconduct.
- Plaintiffs (Paterno parties and others) sued NCAA and others, alleging defamation, disparagement, breach of contract, and interference tied to NCAA’s adoption of the Freeh Report.
- Plaintiffs sought FSS files; FSS/Pepper Hamilton and Penn State asserted attorney-client privilege and work-product protections.
- Trial court ordered broad production (including many FSS-created documents) over privilege/work-product objections; FSS appealed. This Court remanded for clarification and a privilege log; after post-remand rulings some categories were ordered produced, others protected.
- Key legal questions: (1) was Penn State the client of FSS (so could assert privilege); (2) scope of Pennsylvania work-product protection for attorney interview notes vs. non‑attorney investigator notes and interview summaries; (3) appealability and effect of a subsequent discontinuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penn State (not just the SITF) was FSS’s client for attorney-client privilege | Penn State paid FSS, trustee signed engagement, later letters said FSS represented Penn State | FSS/Freeh and engagement letter show FSS represented the SITF exclusively | Court held SITF (not Penn State) was the client; Penn State cannot assert privilege against production (trial court affirmed) |
| Whether attorney interview notes/summaries are protected work product | Plaintiffs argued notes/summaries not protected if not in anticipation of litigation and relevant | FSS argued attorney notes/memoranda reflect attorney mental impressions and are fully protected | Court held attorney interview notes and memoranda are protected in full (not producible or only redacted) — trial court’s limited redaction approach reversed for attorney materials |
| Whether non‑attorney investigator (FGIS) notes and agreed interview summaries are protected | Plaintiffs argued summaries are discoverable; investigator notes likewise | Defendants argued investigator notes reflect mental impressions and protectable; summaries incorporate attorney impressions | Court held investigator notes are discoverable except for portions revealing mental impressions/conclusions/opinions (those must be redacted); agreed interview summaries need not be produced because discoverable content can be obtained from unredacted investigator notes; but attorney notes remain protected |
| Whether trial court’s relevancy-based withholding and appellate jurisdiction/discontinuance issues permit immediate review | Plaintiffs sought immediate review of relevancy rulings and objected to discontinuance attempt | Defendants argued retained jurisdiction and appealability; appellants sought discontinuance after extensive appellate proceedings | Court held relevance denials (orders refusing discovery of irrelevant material) are not immediately appealable here (no jurisdiction beyond original Rule 313 bases); denied appellants’ motion to discontinue the appeal due to court’s investment and timing |
Key Cases Cited
- In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (attorney-client privilege is a legal question reviewed de novo)
- Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372 (Pa. Super. 2012) (explains two-way attorney-client privilege elements)
- Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015) (burden to establish privilege and shifting burden rule)
- Law Office of Douglass T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223 (Pa. Super. 2008) (trial court determines facts supporting privilege)
- Birth Ctr. v. St. Paul Companies, Inc., 727 A.2d 1144 (Pa. Super. 1999) (work product protects attorney mental processes)
- Bagwell v. Pennsylvania Dep’t of Educ., 103 A.3d 409 (Pa. Cmwlth. Ct. 2014) (Pennsylvania Rule protects attorney mental impressions regardless of anticipation of litigation)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (solicitor-client confidentiality and dangers of forcing disclosure of attorney notes)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (foundational protection for attorney work product)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (addressed attorney-client privilege scope; did not resolve full breadth of work-product privilege)