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
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 STATEUNIVERSITY; 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
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
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
from the Order Entered May 8, 2015, September 11, 2014, May
5, 2015 In the Court of Common Pleas of Centre County Civil
Division at No: No: 2013-2082
PANELLA, STABILE, and DUBOW, JJ.
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
questions before us pertain to work done by Freeh Sporkin
& Sullivan, LLP ("FSS, ") 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 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
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
parties (collectively "Plaintiffs" or
"Appellees"), the Freeh Report concluded that the
late Joseph V. Paterno, former Penn State head football
coach, was aware of 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.
National Collegiate Athletic Association ("NCAA"),
defendant 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 of the
NCAA's constitution and bylaws. Id. at
¶¶ 88-89, 98. According to the consent decree:
Head Football Coach Joseph V. Paterno failed to protect
against a child sexual predator harming children for over a
decade, concealed Sandusky's activities from the [Penn
State] Board of Trustees, the University community and
authorities, and allow[ed] [Sandusky] to have continued,
unrestricted and unsupervised access to the University's
facilities and affiliation with the University's
prominent football program.
Id. at ¶ 104a (quoting the NCAA consent
decree). Likewise, the consent decree provided that other
coaches and staff "ignored red flags" of
Sandusky's conduct. Id. at ¶ 104c (quoting
the NCAA consent decree). Plaintiffs alleged that the NCAA
"knew or should have known that the Freeh Report was an
unreliable rush to judgment and that the conclusions reached
in the report were unsupported. Id. at ¶ 90.
Further, Plaintiffs alleged that the NCAA "also knew or
should have known that by accepting the Freeh Report as a
basis for imposing sanctions instead of following the
NCAA's own rules and procedures […] they would
dramatically increase the publicity given to its unreliable
conclusions and effectively terminate the search for
alleged various causes of action, including defamation,
commercial disparagement, breach of contract, and
interference with contractual relations. Shortly after filing
suit, Plaintiffs served on FSS notice of intent to subpoena
all of FSS's files relating to its preparation of the
Freeh Report. FSS and Penn State (the latter having been
added to this action as a nominal defendant), objected on
grounds of attorney-client privilege and work product. On
September 11, 2014, the trial court overruled most of the
objections, thus requiring production of a large number of
documents. On October 8, 2014, Appellants appealed from the
September 11, 2014 order (captioned above at 1709 MDA 2014).
Likewise, Appellants filed in the trial court motions for a
stay pending appeal (see Pa.R.A.P. 1732(a)) and a
protective order (see Pa.R.C.P. No. 4012). The trial
court denied relief by order of November 20, 2014. This Court
affirmed the denial of the stay.
January 22, 2015, while the appeal at number 1709 was
pending, Plaintiffs filed a motion in the trial court to
enforce the subpoena. The trial court granted that motion on
May 8, 2015. The trial court reasoned that it lacked
jurisdiction to consider Appellants' claims of privilege
and work product, as those issues were before this Court in
the appeal pending at number 1709. The trial court therefore
enforced the subpoena without considering Appellants'
objections. Appellants filed appeals from that order
(captioned above at 877 and 878 MDA 2015). This Court denied
Appellants' application for stay by order of June 19,
2015. Thus, FSS already has produced the documents at issue
in this appeal. Should Appellants succeed in this appeal,
documents will have to be returned to FSS and not used as
case involves several million documents. Among those are
approximately 3.5 million documents the parties refer to as
"source documents, " or documents that FSS gathered
from Penn State's servers and records custodians. The
parties generally agree that attorney-client privilege and
work product doctrine do not prevent discovery of the source
documents unless those documents divulge privileged
communications. The second category, "non-source
documents" comprises documents generated by FSS, such as
notes and summaries of 430 interviews conducted by FSS
attorneys and investigators from Freeh Group International
Solutions, LLC ("FGIS") and other internal FSS
memoranda. On April 26, 2014, this Court remanded this matter
and requested further clarification of the documents at
issue, including a privilege log identifying objections to
specific documents or categories of documents. We also
directed the parties to list and identify any documents
ordered to be produced over Appellants' objections,
grouping such documents by category where practicable.
Finally, we directed the trial court to prepare an opinion
explaining its reasons for overruling or granting protection
the parties have significantly pared down the number of
documents still in dispute. In its opinion of August 12,
2016, the trial court reasoned that the Task Force, not Penn
State, was the client of FSS. Thus, Penn State did not have
standing to assert attorney-client privilege as to
communications between FSS and the Task Force. Trial Court
Opinion, 8/12/16, at 3. Further, the trial court held that
many of the non-source documents were not discoverable
because they were irrelevant to the Plaintiffs' causes of
The integral relevant issue in this case is whether
Defendants adopted the allegedly false findings of the
Freeh Report either with knowledge that the findings
were false, or with reckless disregard of the findings'
truth or falsity. […] When considering this issue in
conjunction with FSS's attorney work product, the
relevance of the work product to Plaintiffs' claims turns
on whether FSS communicated or shared the work product with
Defendants. 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
Defendants acted with said requisite state of mind.
Therefore, any attorney work product which remained internal
amongst the FSS team of attorneys is irrelevant to
Plaintiffs' claims in this case and is not discoverable.
Id. at 8-9 (italics in original).
the trial court addressed summaries of the 430 interviews FSS
conducted. Present at each interview were the interviewee, an
FSS attorney, and an investigator from FGIS. The attorney and
investigator each took notes during the interview, and then
prepared and then condensed their notes into an agreed upon
interview summary. The trial court addressed summaries as
In the case at bar, several categories of the Privilege Log
contain memoranda of interviews prepared by FSS interviewers.
These memoranda contain a confluence of the statements made
by the interviewees and the mental impressions, conclusions,
and opinions of the interviewer. The attorney work product
doctrine only applies to the interviewer's mental
impressions, conclusions and opinions. Therefore, said
memoranda are discoverable so long as the attorney work
product portions are redacted.
Id. at 10-11.
their post-remand supplemental brief, Appellants argue that
the trial court erred in finding that Penn State was not a
client of FSS. Appellants' Post-Remand Supplemental Brief
at 9. Appellants also argue that the trial court erred in
finding "non-transcribed, non-verbatim notes of hundreds
of interviews prepared by [FSS] and members of its team,
which undisputedly were not signed or otherwise adopted by
the interviewees, are not protected from disclosure by the
attorney work product doctrine[.]" Id. at 10.
Appellees filed separate briefs responding to Appellants'
arguments and raising their own challenge to the trial
court's finding on relevancy. We will address these
issues in turn.
Appellants challenge the trial court's finding that Penn
State was not the client of FSS. Whether attorney-client
privilege protects a particular communication is a question
of law. In re Thirty-Third Statewide Investigating Grand
Jury, 86 A.3d 204, 215 (Pa. 2014). Our standard of
review is de novo and our scope of review is
plenary. Custom Designs & Mfg. Co. v.
Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super.
2012). "In Pennsylvania, the attorney-client privilege
operates in a two-way fashion to protect confidential
client-to-attorney or attorney-to-client communications made
for the purpose of obtaining or providing professional legal
advice." Id. at 376.
party asserting privilege bears the burden of producing facts
establishing proper invocation of the privilege. Yocabet
v. UPMC Presbyterian, 119 A.3d 1012, 1019 (Pa. Super.
2015). "Once the invoking party has made the appropriate
proffer, then the burden shifts to the party seeking
disclosure to set forth facts showing that disclosure should
be compelled either because the privilege has been waived or
because an exception to the privilege applies."
Id. "Accordingly, [i]f the party asserting the
privilege does not produce sufficient facts to show that the
privilege was properly invoked, then the burden never shifts
to the other party, and the communication is not protected
under attorney-client privilege." Custom
Designs, 39 A.3d at 376. The trial court determines
whether the facts support the asserted privilege. Law
Office of Douglass T. Harris, Esq. v. Philadelphia Waterfront
Partners, LP, 957 A.2d 1223, 1231 (Pa. Super. 2008)
(citing 8 Wigmore, Evidence, § 2322 (McNaughton rev.
note that Penn State created the Task Force, and that the
Task Force has no independent legal identity and no budget of
its own. The chair of Penn State's board of trustees-not
himself a member of the Task Force-signed the Engagement
Letter on behalf of Penn State. Penn State paid for FSS's
services, in accordance with the terms of the Engagement
Letter. Appellants also rely on a December 22, 2011 letter
from Penn State's in-house general counsel to FSS
advising FSS that Penn State's president, trustees, and
members of the Task Force were of the opinion that FSS
represented Penn State. Appellants also rely on a July 22,
2012 letter from Penn State's outside counsel to Freeh
stating that FSS represented Penn State. In the July 22, 2012
letter, outside counsel described materials for which Penn
State would and would not waive attorney-client privilege.
For these reasons, Appellants assert that Penn State was the
counter that Freeh, in his deposition, testified that the
Task Force was FSS's only client, and that FSS did not
represent Penn State. Appellees also note that Penn
State's general counsel, in her December 22, 2011 letter
to FSS, referred to the Task Force as independent and
distinct from Penn State and its board of trustees.
parties rely on the November 18, 2011 Engagement Letter
("Engagement Letter"), which outlines the terms of
FSS's services. We will review that document in detail.
The opening paragraph of that document states:
We are pleased that the Board of Trustees of the Pennsylvania
State University […] on behalf of the [Task Force]
established by the Trustees […] has engaged us to
represent the [Task Force]. […] Accordingly, this is
to set forth the basic terms upon which FSS has been engaged
to represent the [Task Force], including the anticipated
scope of our services and billing policies and practices that
will apply to the engagement.
Engagement Letter, 11/18/11, at page 1 (emphasis added).
Paragraph one, titled "Scope of Engagement, "
FSS has been engaged to serve as independent, external legal
counsel to the [Task Force] to perform an independent, full
and complete investigation of the recently publicized
allegations of sexual abuse at the facilities and the alleged
failure of [Penn State] personnel to report such sexual abuse
to appropriate police and governmental authorities. The
results of FSS's investigation will be provided in a
written report to the [Task Force] and other parties as so
directed by the [Task Force].
It is understood by FSS, the Trustees, and the [Task Force]
that FSS will act under the sole discretion of the [Task
It is also understood by FSS, the Trustees and the [Task
Force] that during the course of FSS's independent
investigation performed hereunder, FSS will immediately
report any discovered evidence of criminality to the
appropriate law enforcement ...