Estate of Paterno v. National Collegiate Athletic Ass'n , 168 A.3d 187 ( 2017 )

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2017 PA Super 247ESTATE OF JOSEPH PATERNO; AL IN THE SUPERIOR COURT OF
CLEMENS, MEMBER OF THE BOARD OF PENNSYLVANIA
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
No. 877 MDA 2015
APPEAL OF: PEPPER HAMILTON, LLP
Appeal from the Order Entered May 8, 2015
In the Court of Common Pleas of Centre County
Civil Division at No: No: 2013-2082
GEORGE SCOTT PATERNO, AS DULY IN THE SUPERIOR COURT OF
APPOINTED REPRESENTATIVE OF THE PENNSYLVANIA
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
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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 No. 1709 MDA 2014
Appeal from the Order Entered September 11, 2014
In the Court of Common Pleas of Centre County
Civil Division at No: 2013-2082
THE ESTATE OF JOSEPH PATERNO; AL IN THE SUPERIOR COURT OF
CLEMENS, MEMBER OF THE BOARD OF PENNSYLVANIA
TRUSTEES OF PSU, AND WILLIAM
KENNEY AND JOSEPH V. PATERNO,
FORMER FOOTBALL COACHES AT
PENNSYLVANIA STATE UNIVERSITY
Appellees
v.
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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 No. 878 MDA 2015
Appeal from the Order Entered May 5, 2015
In the Court of Common Pleas of Centre County
Civil Division at No: 2013-2082
BEFORE: PANELLA, STABILE, and DUBOW, JJ.
OPINION BY STABILE, J.: FILED JULY 25, 2017
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”
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1
Also pending is Appellants’ application to discontinue, which we deny for
reasons stated in the main text.
2
The FSS attorneys have since joined Pepper Hamilton. The orders on
appeal were directed to Pepper Hamilton.
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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 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 allegations of Sandusky’s conduct before
Sandusky retired in 1999 but failed to take action to address that conduct.
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3
The Commonwealth also filed charges against three high-ranking Penn
State officials. A jury convicted Penn State President Graham B. Spanier of
endangering the welfare of children (18 Pa.C.S.A. § 4304), Athletic Director
Timothy M. Curley, and Senior Vice President for Finance and Business Gary
C. Shultz, pled guilty to that offense. All three men were sentenced to terms
of prison and house arrest on June 2, 2017.
4
The Paterno parties are the 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.
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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 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
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5
The named defendants include the NCAA, Mark Emmert, individually and
as President of NCAA, and Edward Ray, individually and as former Chairman
of the Executive Committee of the NCAA. We will refer to these parties
collectively as the “NCAA.”
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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
truth.” Id.
Plaintiffs 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.
On 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
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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
evidence.
This 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
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such documents by category where practicable. Finally, we directed the trial
court to prepare an opinion explaining its reasons for overruling or granting
protection of documents.
Post-remand, 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 action:
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).
Finally, 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
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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 follows:
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.
In 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.
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First, Appellants challenge the trial court’s finding that Penn State was
not the client of FSS.6 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.
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6
Status as a client is the first of four elements that the proponent of the
privilege claim must establish:
1) The asserted holder of the privilege is or sought to
become a client.
2) The person to whom the communication was made is a
member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney
was informed by his client, without the presence of strangers, for
the purpose of securing either an opinion of law, legal services or
assistance in a legal matter, and not for the purpose of committing
a crime or tort.
4) The privilege has been claimed and is not waived by the
client.
Custom Designs, 39 A.3d at 376.
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The 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. 1961)).
Appellants 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
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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 client.
Appellees 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.
Both 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,” provides:
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
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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 Force].
[…]
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
authorities, and provide notice of such reporting to the [Task
Force].
[…]
FSS also will communicate regarding its independent
investigation performed hereunder with media, police agencies,
governmental authorities and agencies, and any other parties, as
directed by the [Task Force]. However, it also is understood by
FSS, the Trustees and the [Task Force] that neither the Trustees
nor the [Task Force] will interfere with FSS’s reporting of evidence
of criminality or identities of any victims of sexual crimes or
exploitation discovered throughout the course of FSS’s independent
investigation performed hereunder, as discussed in the paragraph
immediately above.
Id. at pages 1-2, ¶ 1 (emphasis added).
In a subsequent paragraph titled “Retention of Third Parties,” the
Engagement Letter provides that “For the purpose of providing legal services
to the [Task Force], FSS will retain [FGIS] to assist in this engagement.”
Id. at page 5, ¶ 5.
Paragraph six governs the confidentiality of the relationship:
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The work and advice which is provided to the [Task
Force] under this engagement by FSS, and any third party
working on behalf of FSS to perform services in connection with
this engagement, is subject to the confidentiality and privilege
protection of the attorney-client and attorney work product
privileges, unless appropriately waived by the parties or otherwise
determined by law.
Id. at page 5, ¶ 6 (emphasis added). Paragraph 7 governs the
responsibilities of attorney and client:
FSS will provide the above-described legal services for
the [Task Force’s] benefit, for which the Trustees will be
billed in the manner set forth above. We will keep the [Task
Force] apprised of developments as necessary to perform our
services and will consult with the [Task Force] as necessary to
ensure the timely, effective, and efficient completion of our work.
Id. at pages 5-6, ¶ 7 (emphasis added).
Paragraph nine, titled “Engagement Limited to Identified Client,”
provides: “This will also confirm that, unless we otherwise agree in writing,
our engagement is solely related to the [Task Force] established by the
[Penn State] Board of Trustees and the specific matter described above.”
Id. at page 6, ¶ 9. Paragraph ten, governing termination, provides that
“Our engagement may be terminated at any time by FSS or the [Task Force]
upon written notice and, with respect to FSS, consistent with our ethical and
professional obligations.” Id. at 7, ¶ 10. Paragraph 11, regarding client
files, provides that “[i]n the course of our representation of the [Task Force],
we will maintain a file containing, for example, correspondence, pleadings,
agreements, deposition transcripts, exhibits, physical evidence, expert
reports, and other items reasonably necessary for the [Task Force’s]
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representation[.]” Id. at 7, ¶ 11 (emphasis added). Finally, in its
concluding paragraph, the Engagement Letter states that “FSS, of course, is
delighted to be asked to provide legal services to the [Task Force], and
we are looking forward to working with the [Task Force] on this
engagement.” Id. at page 7 (emphasis added).
Freeh signed the Engagement Letter on behalf of FSS. The chair of
Penn State’s Board of Trustees signed the Engagement Letter under the
heading “Approved and Agreed to on Behalf of The Board of Trustees of the
Pennsylvania State University.” Id. at page 8. Likewise, the Task Force
chair signed the Engagement Letter under the heading “Approved and
Agreed to on Behalf of the [Task Force] Established by The Board of Trustees
of the Pennsylvania State University.” Id.
In summary, the Engagement Letter consistently draws a distinction
between Penn State’s board of trustees and the Task Force. The letter
consistently identifies the Task Force as the party for whom FSS was
performing services. Appellants do not cite any legal authority precluding an
entity such as Penn State from hiring and paying a law firm to represent a
task force of the entity’s creation.7 Nor do Appellants cite any authority
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7
We note that Rule of Professional Conduct 1.8(f) and explanatory
comment 11 permit compensation by a third party. Pa.R.P.C. 1.8(f). The
client must give informed consent, and there must be no “interference with
the lawyer’s independence of professional judgment or with the client-lawyer
(Footnote Continued Next Page)
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precluding the parties from limiting the attorney-client relationship to the
law firm and the task force, if desired. Furthermore, Appellants cite no
authority to support their contention that the Task Force, in order to become
a client of FSS, needed to be a distinct legal entity. The signature on the
Engagement Letter Steve A. Garban, chair of Penn State’s board of trustees
was necessary, given that the trustees were paying FSS’s bills. We
therefore do not view Garban’s signature as “fatally inconsistent” with a
conclusion that the Task Force was the client, as Appellants claim. See
Appellants’ Supplemental Brief at 21. The signature by the Task Force chair,
Kenneth C. Frazier, on the other hand, undercuts Appellants’ argument. If
Penn State was the client, and if the Task Force had no identity distinct from
Penn State, Frazier’s signature would be superfluous. As it is, Frazier’s
signature on behalf of the Task Force is consistent with the terms of the rest
of the Engagement letter, which consistently and repeatedly identifies the
Task Force as the client.
Appellants also argue that the trial court placed undue weight on
Freeh’s testimony. Appellants claim Freeh’s testimony, coming well after the
signing of the Engagement Letter and issuance of the Freeh Report, does not
_______________________
(Footnote Continued)
relationship.” Id. Likewise Rule 5.4(c) provides that a “lawyer shall not
permit a person who recommends, employs or pays the lawyer to render
legal services for another to direct or regulate the lawyer’s professional
judgment rendering such legal services.” Pa.R.P.C. 5.4(c). See also,
Pa.R.P.C. 5.4(c), explanatory comment 2.
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alter the circumstances of the representation. A similar criticism could be
made, however, of Appellants’ reliance on letters authored by its general
counsel and outside counsel, both of which post-date the Engagement Letter
and the commencement of FSS’s representation of the Task Force. In our
view, Freeh’s testimony is consistent with the Engagement Letter. We do
not believe the trial court overemphasized or erred in relying upon Freeh’s
testimony.
In summary, Appellants have failed to offer any authority upon which
we can conclude that the trial court erred, as a matter of law, in finding that
FSS confined its representation to the Task Force.8 We will not disturb the
trial court’s finding, supported by the record, that Penn State cannot assert
attorney-client privilege because it was not the client of FSS.9
Next, we address the parties’ challenges to the trial court’s work
product rulings. “The protection against the discovery of work product is
designed to shelter the mental processes of an attorney, providing a
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8
Implicitly, Appellants challenge the trial court’s findings of fact, credibility
determinations, and interpretation of the Engagement Letter. Appellants do
not cite any legal principles governing these issues. Appellants have
confined their argument to the trial court’s legal conclusion that Penn State
failed to establish that attorney-client privilege applies. We have confined
our analysis and holding accordingly.
9
We thus affirm Paragraph 1 of the trial court’s August 12, 2016 order
(appended to this opinion). In Paragraph 1, the trial court identified
categories of documents that contain unprivileged communications between
Penn State and FSS.
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privileged area within which he can analyze and prepare his client’s case.”
Birth Ctr. v. St. Paul Companies, Inc., 727 A.2d 1144, 1165 (Pa. Super.
1999), aff'd, 787 A.2d 376 (Pa. 2001); disapproved on other grounds by
Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa. 2003). “The underlying
purpose of the work product doctrine is to guard the mental processes of an
attorney, providing a privileged area within which he can analyze and
prepare his client’s case.” Bagwell v. Pennsylvania Dep’t of Educ., 103
A.3d 409, 415-16 (Pa. Cmwlth. Ct. 2014), appeal denied, 117 A.3d 1282(Pa. 2015) (quoting Commonwealth v. Sandusky, 70 A.3d 886, 898 (Pa.
Super. 2013), appeal denied, 81 A.3d 77 (Pa. 2013)).
Work product Rule 4003.3 of the Rules of Civil Procedure governs work
product doctrine:
Subject to the provisions of Rules 4003.4 and 4003.5, a
party may obtain discovery of any matter discoverable under
Rule 4003.1 even though prepared in anticipation of litigation or
trial by or for another party or by or for that other party’s
representative, including his or her attorney, consultant, surety,
indemnitor, insurer or agent. The discovery shall not include
disclosure of the mental impressions of a party’s attorney or his
or her conclusions, opinions, memoranda, notes or summaries,
legal research or legal theories. With respect to the
representative of a party other than the party’s attorney,
discovery shall not include disclosure of his or her mental
impressions, conclusions or opinions respecting the value or
merit of a claim or defense or respecting strategy or tactics.
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Pa.R.C.P. No. 4003.3.10 Whether the trial court properly interpreted and
applied Rule 4003.3 presents a question of law. Barrick v. Holy Spirit
Hosp. of the Sisters of Christian Charity, 32 A.3d. 800, 808 (Pa. Super.
2011), aff’d, 91 A.3d 680 (Pa. 2014). Our standard of review is de novo
and our scope of review is plenary. Id.As noted above, the trial court ordered production of some non-
verbatim interview notes and memoranda prepared by FSS attorneys and
FGIS investigators. Each interview was conducted by one FSS attorney and
one FGIS investigator. The attorneys and investigators took notes at the
interviews and synthesized their notes into an agreed-upon interview
summary. The trial court found that “[t]hese memoranda contain a
confluence of the statements made by the interviewees and the mental
impressions, conclusions, and opinions of the interviewer.” Trial Court
Opinion, 8/12/16, at 10-11. The trial court ordered the notes and
memoranda produced so long as the interviewer’s mental impressions,
conclusions, and opinions were redacted. Id.The plain language of Rule 4003.3 states that work product applies to
a party’s attorney and other representative or agent. With respect to the
attorney, the Rule provides that “discovery shall not include disclosure of the
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10
Rules 4003.5 and 4003.5 are not relevant here, as they govern trial
preparation material.
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mental impressions of a party’s attorney or his or her conclusions, opinions,
memoranda, notes or summaries, legal research or legal theories.”
Pa.R.C.P. No. 4003.3 (emphasis added).
We first turn for guidance to the explanatory comment accompanying
Rule 4003.3.
The amended Rule radically changes the prior practice as
to discovery of documents, reports and tangible things prepared
in anticipation of litigation or for trial by or for another party or
by or for that party’s representative, including his attorney,
consultant, surety, indemnitor, insurer or agent.
Former Rule 4011(d) expressly prohibited such discovery.
The amended Rule permits it, subject to the limitation that
discovery of the work product of an attorney may not include
disclosure of the mental impressions, conclusions, opinions,
memoranda, notes, legal research or legal theories of an
attorney. As to any other representative of a party, it protects
the representative’s disclosure of his mental impressions,
conclusions or opinions respecting the value or merit of a claim
or defense or respecting strategy or tactics. Memoranda or
notes made by the representative are not protected.
Pa.R.C.P. No. 4003.3, comment. The comment reinforces the protection of,
among other things, an attorney’s mental impressions, memoranda, and
notes.11
____________________________________________
11
In construing the Rules of Civil Procedure, this Court may rely on the
principles of statutory construction. Howarth v. DiGrazio, 142 A.3d 877,
880 (Pa. Super. 2016). The parties have not briefed the principles of
statutory construction. Their arguments rest on the plain language of Rule
4003.3. We confine our analysis accordingly.
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For the policy underlying protection of an attorney’s interview notes,
Appellants rely on Upjohn Co. v. U.S., 449 U.S. 383 (1981). The Upjohn
Court noted the general prohibition12 of permitting discovery of “written
statements, private memoranda and personal recollections prepared or
formed by an adverse party’s counsel in the course of his legal duties.” Id.
at 397 (quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). Thus, “it
is essential that a lawyer work with a certain degree of privacy.” Id. at 397-
98. Were it otherwise, the Supreme Court reasoned, “much of what is now
put down in writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own.” Id. at 398. Further, the Court
wrote that “[f]orcing an attorney to disclose notes and memoranda of
witnesses’ oral statements is particularly disfavored because it tends to
reveal the attorney’s mental processes […] what he saw fit to write down
regarding witnesses’ remarks […] the statement would be his [the
attorney’s] language, permeated with his inferences.” Id. at 399-400
(citations omitted; brackets added in Upjohn). While Upjohn is not binding
on this Court, we find its analysis persuasive and in accord with the text of
Rule 4003.3 and its explanatory comment. Indeed, Rule 4003.3 explicitly
____________________________________________
12
Federal Rule of Civil Procedure 26(b)(3)(A)(ii) permits discovery of work
product if a party shows “substantial need” for the materials and that it
cannot, “without undue hardship, obtain their equivalent by other means.”
F.R.C.P. 26(b)(3)(A)(ii). Pennsylvania Rule 4003.3 contains no analogous
provision.
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identifies memoranda and notes as worthy of protection because, as Upjohn
explains, notes and memoranda are highly likely to reflect an attorney’s
mental impressions, opinions, and conclusions—the other items explicitly
protected by the Rule. A contrary result would discourage written notes and
summaries such as those presently at issue. The trial court erred in
ordering Appellants to produce redacted copies of FSS attorney interview
notes and summaries. Work product doctrine protects those documents in
their entirety.
The same result does not obtain for the notes of FGIS investigators.
Concerning representatives other than the party’s attorney, the Rule
protects only “representative’s disclosure of his mental impressions,
conclusions or opinions respecting the value or merit of a claim or defense or
respecting strategy or tactics.” Pa.R.C.P. No. 4003.3. The explanatory
comment clarifies, “[m]emoranda or notes made by the representative are
not protected.” Pa.R.C.P. No. 4003.3, explanatory comment. 13 Thus, Rule
4003.3 protects FGIS investigator notes only to the extent that those notes
reflect “mental impressions, conclusions or opinions respecting the value or
____________________________________________
13
We are cognizant that explanatory comments express the opinion of the
rules drafting committee and therefore are not binding. Johnson v.
Bullock-Freeman, 61 A.3d 272, 276 (Pa. Super. 2013).
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merit of a claim or defense or respecting strategy or tactics.” Pa.R.C.P. No.
4003.3.14
Appellees argue that work product does not protect the notes and
memoranda of the FSS attorneys and FGIS investigators because those
notes and memoranda were not prepared in anticipation of litigation. We
disagree. Rule 4003.3 permits discovery of work product, so long as the
work product does not reflect or include “mental impressions of a party’s
attorney or his or her conclusions, opinions, memoranda, notes or
summaries, legal research or legal theories.” Pa.R.C.P. No. 4003.3. Work
product that does not reflect or include these items is discoverable “even
though” prepared in anticipation of litigation. Id. Thus, the Rule does not
limit work product protection to materials prepared in anticipation. Rather,
materials prepared in anticipation are not automatically protected. Nowhere
does the Rule limit its protection of “mental impressions of a party’s attorney
____________________________________________
14
Paragraph 3 of the trial court’s August 12, 2016 order (see appendix)
identified the documents the trial court found to be discoverable over
Appellants’ work product claim. We hold that attorney interview notes are
not discoverable, even in redacted form. FGIS investigator notes are
discoverable but must be redacted insofar as they contain “mental
impressions, conclusions or opinions respecting the value or merit of a claim
or defense or respecting strategy or tactics.” Pa.R.C.P. No. 4003.3. The
interview summaries, which are an agreed-upon synthesis of the notes of
the FSS attorney and the FGIS investigator, need not be produced. Insofar
as anything reflected in those summaries is discoverable, Appellees can
glean that information from the un-redacted portions of the FGIS
investigator notes.
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or his or her conclusions, opinions, memoranda, notes or summaries, legal
research or legal theories” to materials prepared in anticipation.
Moreover, Appellees’ reliance on federal law is misplaced. Federal
Rule 26(b)(3)(A) cabins work product protection to matters prepared in
anticipation of litigation. F.R.C.P. 26(b)(3)(A) (“Ordinarily, a party may not
discover documents and tangible things that are prepared in anticipation
of litigation [….]”) (emphasis added). As explained above, Rule 4003.3
does not similarly cabin Pennsylvania’s work product privilege. For this
reason, we believe federal cases interpreting Rule 26(b)(3)(A) are not
persuasive on this point. Appellees cite several Pennsylvania cases
(Appellees’ Opening Brief, at 13), but they are inapposite. Appellees rely on
a footnote in Commonwealth v. Williams, 86 A.3d 771, 782 n.7 (Pa.
2014), but that footnote simply cites federal cases. Moreover, the scope of
the work product privilege was not before the Williams Court. Appellees
cite a footnote in Gillard v. AIG Ins. Co., 15 A.3d 44, 59 n.16 (Pa. 2011),
but there, the Supreme Court expressly limited its holding: “Moreover,
while it is beyond the scope of this opinion to determine the precise
breadth of the privilege, we note that Rule 4003.3, on its overall terms,
manifests a particular concern with matters arising in anticipation of
litigation.” Id. (emphasis added). Indeed, the issue before the Gillard
Court was “whether, and to what degree, the attorney-client privilege
attaches to attorney-to-client communications.” Id. at
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Our Commonwealth Court addressed this issue head on in Bagwell.
There, the document requester15 was seeking information (related to the
Sandusky scandal and the FSS investigation) from the Pennsylvania
Secretary of Education, in his capacity as an ex officio member of Penn
State’s board of trustees. Bagwell, 103 A.3d at 411. The Commonwealth
Court held that work product doctrine protects “mental impressions,
theories, notes, strategies, research and the like created by an attorney in
the course of his or her professional duties, particularly in anticipation or
prevention of litigation[.]” Id. (quoting Levy v. Senate of Pennsylvania,
94 A.3d 436 (Pa. Cmwlth. Ct. 2014) (italics added in Bagwell)). The
requester asked the Commonwealth Court to hold that work product doctrine
applies only to materials prepared in anticipation of litigation. The
Commonwealth Court declined, reasoning that Rule 4003.3’s protection of
mental impressions is unqualified. Id. at 416-17 (quoting Sedat v.
Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth.
Ct. 1994) (single judge opinion)). Thus, materials that contain mental
impressions are protected regardless of whether they are prepared in
anticipation of litigation. Id. at 417. In a later proceeding, the
Commonwealth court reiterated that “[p]rotection of an attorney’s mental
____________________________________________
15
The requester relied on the Right To Know Law (“RTKL”), 65 P.S.
§§ 67.101, et. seq., 2008 Pa. Laws. 6, No. 3.
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impression is unqualified.” Bagwell v. Pennsylvania Office of Attorney
General, 116 A.3d 145, 148 (Pa. Cmwlth. Ct. 2015). The Commonwealth
Court’s decisions do not bind this Court. Nonetheless, we cite it as
persuasive authority in support of our own analysis. We reject Appellees’
assertion that work product protection is limited to materials prepared in
anticipation of litigation.
Next, we consider Appellees’ arguments challenging the trial court’s
post-remand order. The trial court ruled that various non-source documents
were not discoverable because they are not relevant to any of Appellees’
causes of action. Appellees argue the trial court erred in so doing. Before
we address this argument on its merits, we must consider Appellants’
assertion that an order denying discovery is interlocutory and not
immediately appealable.
Initially, we exercised jurisdiction over this appeal pursuant to
Pa.R.A.P. 313, which permits an interlocutory appeal from orders “separable
from and collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b). The trial court’s order overruling
Appellants’ claims of attorney-client privilege and work product protection is
immediately appealable under Rule 313. Berkeyheiser v. A-Plus
Investigations, Inc., 936 A.2d 1117, 1124 (Pa. Super. 2007). This is so
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because a claim of privilege is irreparably lost if a party is forced to disclose
privileged documents. Id.As explained above, we remanded for clarification of the documents at
issue and the specific nature of Appellants’ objections. At the conclusion of
the post-remand proceedings, the trial court found that many of the
documents Appellees’ seek are irrelevant to any of Appellees’ causes of
action. The trial court’s post-remand ruling does not require disclosure of
evidence over a party’s assertion of privilege, and therefore does not
implicate the collateral order doctrine as set forth in Rule 313 and
Berkeyheiser. Appellees do not dispute that appellate review of an order
denying discovery of irrelevant material would ordinarily await an appeal
from a final order. They argue instead that immediate review of the order
denying discovery is proper in light of this Court’s remand instructions:
8. This Court shall retain jurisdiction over these appeals until
this Court resolves all remaining issues. If any issues
remain for review, this Court shall notify the parties if it
desires additional briefing on any remaining issues. It
shall not be necessary for the parties to file additional
appeals to his Court from any rulings by the trial court
under this Order.
9. The entry of this Order is without prejudice to the issues
already raised and preserved by the parties for review by
this Court at the above-consolidated appeal numbers.
Order, 4/26/16, at ¶¶ 8-9.
Prior to remand, Appellants were the appealing party, and the issues
they preserved challenged the order directing production of documents over
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Appellants’ claims of attorney-client privilege and work-product. Our order
clarified that, given our retained jurisdiction, no further notices of appeal
would be necessary. Our order did not and could not expand the scope of
this Court’s permissible jurisdiction under Rule 313. Nor did it expand our
basis for exercising jurisdiction over this appeal in the first instance. 16 We
can retain only so much jurisdiction as we originally had.
Furthermore, we do not prejudice Appellees by declining to review the
trial court’s relevance finding on this appeal. Had the trial court ruled, prior
to remand, that some of the documents Appellee sought were irrelevant,
Appellees would have had no jurisdictional basis for obtaining an immediate
appeal. Post-remand, their situation is the same. We lack jurisdiction to
review an order denying discovery of allegedly privileged information. 17
Finally, we have before us Appellants’ applications to discontinue these
appeals. Appellants represent that on June 30, 2017, the Paterno Parties
filed a praecipe to discontinue this action in the Centre County Court of
Common Pleas. By virtue of Rule 1701(c) of the Appellate Rules of
Procedure, the trial court retained jurisdiction over the Paterno parties’
____________________________________________
16
All three of the above-captioned appeals were Appellants’ appeals from
orders that directed the disclosure of documents.
17
We therefore do not address Paragraph 2 of the trial court’s August 12,
2016 order.
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action, exclusive of the collateral issues before us in this interlocutory
appeal. Pa.R.A.P. 1701(c). However, Rule 1973(b) provides:
If an appeal has been docketed in the appellate court, the
prothonotary or clerk of the lower court or the clerk of the
government unit shall not accept a praecipe to discontinue
the action until it has received notice from the appellate
court prothonotary or certification of counsel that all
pending appeals in the action have been discontinued.
Pa.R.A.P. 1973 (emphasis added). Thus, the Paterno Parties’
discontinuance, and any trial court order permitting a discontinuance, were a
nullity. The present discovery appeal remains within the exclusive
jurisdiction of this Court and deprives the trial court of any authority to
accept or grant a discontinuance of an action until receipt of proper notice
that all appeals pending in this Court have been discontinued. Apart from
the clear dictates of Rule 1973, to hold otherwise would create the
anomalous situation where the disposition of an appeal and the attendant
remand of the record would not be capable of returning to the action from
which they derived.
In their application, Appellants, citing Motley Crew, LLC v. Bonner
Chevrolet Co., Inc., 93 A.3d 474 (Pa. Super. 2014), appeal denied, 104
A.3d 526 (Pa. 2014), argue this Court is bound to discontinue this appeal
because there no longer is an action over which a court may exert
jurisdiction. We find Appellants’ argument misplaced. In Motley Crew, the
appellants discontinued their case in the trial court before filing an appeal.
Id. at 475. The appellants believed, incorrectly, that they could render an
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otherwise interlocutory order final and appealable by discontinuing their
action. Id. This Court disagreed and quashed the appeal, concluding that
the appellants rendered their appeal moot by discontinuing their case
against all parties. Id. at 478. There no longer was an action from which
an appeal could be taken. Here, the interlocutory appeal was pending well
before the Paterno Parties sought to discontinue the underlying action in the
trial court. Unlike the attempted appeal in Motley Crew, the instant appeal
was viable at the time it was appealed to this Court. Once this appeal was
filed, this Court possessed jurisdiction over the interlocutory matters raised
on appeal to the exclusion of the trial court. The Paterno Parties could not
divest this Court of jurisdiction by attempting to discontinue their action in
the trial court while the matter was still pending in this Court. Motley Crew
therefore, does not govern the jurisdictional issue presently before this
Court.
We now must decide whether to grant Appellants’ application to
discontinue this appeal, despite the substantial time and resources this Court
has invested in reviewing and deciding this matter. Rule 1973 permits an
appellant to “discontinue an appeal or other matter as to all appellees as a
matter of course until 14 days after the date on which the appellee’s
principal brief is due, or thereafter by leave of court upon application.”
Pa.R.A.P. 1973(a). Case law on this Rule is sparse. However, in Marino by
Marino v. Marino, 601 A.2d 1240 (Pa. Super. 1992), this Court declined to
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allow the appellant to discontinue after oral argument occurred. This Court
noted that the appellant allowed the case to proceed through extensive
briefing, application of the machinery of this Court and, finally, oral
argument before requesting a discontinuance. In declining to permit the
discontinuance, we stated “[w]e will not allow a litigant to avail himself the
full process of the court, and then permit that litigant to remove the case
from the court’s jurisdiction at the very last possible moment.” Id. at 1243.
See also, Levine v. Levine, 520 A.2nd 466 (Pa. Super. 1987) (petition to
discontinue an appeal denied when filed subsequent to argument and prior
to the filing of the appellate court’s opinion and order), Lowery v. East
Pike Lynn Township, 599 A.2d 271 (Pa. Cmwlth. 1991), (discontinuance
denied when subsequent to argument appellant sought permission to
discontinue an appeal but failed to state with particularity the grounds upon
which the request was based).
Instantly, this Court has devoted considerable time and resources to
this appeal, including a detailed remand for clarification of the issues before
us. Moreover, the issues we have addressed are of significance to the entire
bench and bar. Because the panel has twice heard argument and reviewed
two sets of briefs (pre- and post-remand), and because the panel has
reached agreement on the merits, we deny the application to discontinue.
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For all of the foregoing reasons, we affirm the trial court’s order in
part, reverse in part, and remand for further proceedings in accordance with
this opinion.
Order affirmed in part and reversed in part. Case remanded.
Applications denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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. _,,._ .... ,, .. _ ...
Circulated 06/30/2017 03:09 PM
Accordingly. the Court enters the following Order:
ORDER
AND NOW, this __ ) day of~
A¥, {I2016,
s+ .
the Court hereby ORDERS:
I) '
The following categories of the Privilege Log are discoverable as they contain
unprivileged communications:
a. Category I la. Substantive communications between members of the Freeh Team
and members of Penn State's Board of Trustees ("BOT'') or Special Investigative
Task Force ("SITF") that are within the scope of 42 Pa.C.S. § 5928
i. Insofar as said communications were made to non-members of the SITF.
b. Category 12 a. Communications between members of the Freeh Team and other
attorneys for PSU (e.g., F. Guadagnino, C. Baldwin. L. Davis, D. Walworth, J.
O'Dea) that are within the scope of 42 Pa.C.S. § 5928
c. Category J 2b. Documents containing internal discussions among members of the
Freeh Team re: communications between members of the Freeh Team and other
attorneys for PSU «.s- F. Guadagnino, C. Baldwin, L. Davis, D. Walworth. J.
O'Dea) that are within the scope of 42 Pa.C.S. § 5928
i. Insofar as said discussions reflect the substantive material of said
communications.
d. Category 13. Documents containing internal discussions among members of the
Freeh Team re: communications with third parties (e.g., OAG, NCAA, Big Ten)
i, Insofar as said discussions reflect the substantive material of said
communications.
12
2) The following categories of the Privilege Log are undiscoverable as they contain
irrelevant material:
a. Category 1. Documents containing internal discussions among members of the
"Freeh Team" (Freeh Sporkin & Sullivan, Freeh Group International Solution,
Pepper Hamilton) re: interim recommendations provided to PSU in February 2012
b. Category 2a. Draft of the Freeh Report or individual chapters thereof
c. Category 2b. Documents containing internal discussions among members of the
Freeh Team re: draft chapters, possible findings, possible recommendations
d. Category 3a. Drafts of chapters/sections that were not included in the final Freeh
Report
e. Category 3b. Documents containing internal discussions among members of the
Freeh Team re: drafts of chapters/sections that were not included in the final
Freeh Report
f. Category 4. Drafts of and documents containing internal discussions among
members of the Freeh Team re: press release/L. Freeh remarks upon issuance of
Freeh Report
g. Category 5. Legal research memoranda, incJuding discussion or analysis in
preparation for drafting
h. Category 6. Documents containing internal discussions among members of the
Freeh Team re: the plan for the investigation/the progress thereof
1. Category 7b. Drafts, documents containing internal discussions among members
of the Freeh Team, comments, summaries re: memos of interviews cited in the
Freeh Report-then-current PSU employees, trustees, emeritus trustees
13
J. Category Rb. Drafts, documents containing internal discussions among members
of the Freeh Team, comments, summaries re: memos of interviews cited in the
Freeh Report-all others
k. Category Sb, Drafts, documents containing internal discussions among members
of the Freeh Team, comments, summaries re: memos of interviews cited in the
Freeh Report-all others
I. Category 9b. Drafts, documents containing internal discussions among members
of the Freeh Team, comments, summaries re: memos of interviews not cited in the
Freeh Report-then-current PSU employees, trustees, emeritus trustees
m. Category 1 Ob. Drafts, documents containing internal discussions among members
of the Freeh Team, comments, summaries re; memos of interviews not cited in the
Freeh Report-all others
n. Category 11 b. Documents containing internal discussions among members of the
Freeh Team re: Substantive communications between members of the Freeh Team
and members of Penn State's Board of Trustees ("BOT") or Special Investigative
Task Force ("SJTF") that are within the scope of 42 Pa.C.S. § 5928
3) TI1e following categories of the Privilege Log are partially discoverable:
a. Category Te. Memos of interviews cited in the Freeh Report-then-current PSU
employees, trustees, emeritus trustees
b. Category 8a. Memos of interviews cited in the Freeh Report-all others
c. Category 9a. Memos of interviews not cited in the Freeh Report-then-current
PSU employees, trustees, emeritus trustees
d. Category l Oa, Memos of interviews not cited in the Freeh Report-all others
14
4) All of the Court's discovery findings contained in this Order are to be interpreted in
collaboration with the findings in the attached Opinion.
; John . Leete, Senior Judge
\~pee ally Presiding
15