Painter v. Smith et al
Filing
61
ORDER granting 46 Motion to Seal Document. IT IS FURTHER ORDERED that "Defendant Doe's Motion to Proceed Under a Fictitious Name 49 is hereby GRANTED. Defendant shall proceed under the name, "Jane Doe. IT IS FURTHER ORDERED that 50 "Defendant Doe's Motion to Seal Docket is hereby DENIED AS MOOT. Signed by Magistrate Judge David Keesler on 7/13/16. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-369-MOC-DCK
GREGORY TODD PAINTER JR.,
Plaintiff,
v.
JANE DOE; et al.,
Defendants.
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ORDER
THIS MATTER IS BEFORE THE COURT on Defendant Doe’s “Emergency Motion
To Seal Document” (Document No. 46) filed February 1, 2016; Defendant Jane Doe’s “Motion
To Proceed Under a Fictitious Name” (Document No. 49) filed February 2, 2016; and Defendant
Doe’s “Emergency Motion To Seal The Docket” (Document No. 50) filed February 2, 2016. These
motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b),
and immediate review is appropriate. Having carefully considered the motions and the record, and
applicable authority, the undersigned will grant in part and deny in part the motions.
FACTUAL BACKGROUND
Plaintiff was a student at the University of North Carolina at Charlotte (“UNC Charlotte”)
when he joined the North Carolina Army National Guard. (Document No. 28, p. 5). Plaintiff
knowingly joined a combat-arm military occupational specialty unit that was set to deploy to Iraq
in December 2008. Id. Plaintiff deployed for active duty in Iraq in December 2008, returning to
the United States in April 2010. Id. Upon his return, Plaintiff re-enrolled at UNC Charlotte and
began attending classes in the fall of 2010. Id. He became involved in the Reserve Officer
Training Corps (“ROTC”) program, and began taking steps to establish a chapter of the Pershing
Rifles, a military fraternity, at UNC Charlotte. Id.
Plaintiff met Defendant Jane Doe (“Defendant” or “Doe”) during the 2011-2012 school
year when Defendant enrolled in ROTC courses at UNC Charlotte. (Document No. 28, p. 6).
Defendant joined the Pershing Rifles fraternity, and through the fraternity pledging process,
worked closely and became friendly with Plaintiff. Id. The two became social friends and
communicated with each other over the telephone and over social media. Id. On the evening of
May 13, 2012, Defendant contacted Plaintiff to say she was “bored,” and Plaintiff responded that
he was watching a movie at his apartment near the UNC Charlotte campus and invited Defendant
to join. Id. Defendant arrived at the apartment, and the pair watched a movie together in the living
room. Id. at pp. 6-7. That night, Plaintiff and Defendant engaged in sexual intercourse. Id. at p.
7.
Plaintiff was scheduled to study abroad during the summer of 2012, but before departing,
he received an email from Defendant McGinnis, the Chair of the Military Science Department at
UNC Charlotte, ordering Plaintiff to appear in his office the next day. (Document No. 28, pp. 3,
9). When Plaintiff appeared in Defendant McGinnis’ office, he informed Plaintiff that he would
not be allowed to go on the study abroad trip because Defendant had accused him of sexual assault,
and that Plaintiff needed to be present for questioning. Id. On June 6, 2012, the incident was
reported to the University of North Carolina at Charlotte Police and Public Safety. Id. at p. 11.
Further, on June 7, 2012, Defendant filed a sexual assault complaint with the CharlotteMecklenburg Police Department, which ultimately led to an inconclusive investigation due to
insufficient evidence. Id. at p. 10.
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On August 13, 2012, UNC Charlotte held a hearing before the Administrative Judicial
Board to determine whether Plaintiff was responsible for committing sexual acts without
Defendant’s consent. Id. at p. 13. The evidentiary hearing (the “Hearing”) was conducted in a
closed session, and the administrators announced at the beginning of the Hearing that disclosure
of the details of the Hearing was a violation of both UNC Charlotte rules and federal law.
(Document No. 46 at p. 3). The Hearing was transcribed by a court reporter into a 54-page
transcript (the “Transcript”) which contained explicit sexual, personal, and sensitive testimony
from both Plaintiff and Defendant. (Id. at p. 1). The Board ultimately found Plaintiff responsible
for “Committing Sexual Acts without Consent.” (Document No. 28, p. 14).
Plaintiff was
reprimanded by the school, and was subject to disciplinary measures including a no-contact order
with Defendant, suspension from school, loss of standing in the ROTC, and a writing assignment
on the complexities of consent. Id. at pp. 15-17.
On August 21, 2012, Plaintiff appealed the decision of the Hearing Committee, arguing
that the presented evidence failed to sufficiently establish that it was more likely than not that
Plaintiff had committed sexual acts upon Defendant without the latter’s consent. Id. at pp. 17-18.
On August 24, 2012, Plaintiff was notified that his appeal was denied. Id. Plaintiff appealed again,
arguing that Rinck, a student in whom Defendant Doe was alleged to have a romantic interest, had
encouraged Defendant to label the sexual intercourse as “rape” and to report it, amongst other
allegations. Id. at p. 19.
A second disciplinary hearing was held in Plaintiff’s case on March 22, 2013. Id. at p. 21.
The hearing upheld the initial finding that Plaintiff was responsible for engaging in sexual acts
without Defendant’s consent. (Document No. 28, p. 23). Again, Plaintiff appealed the Board’s
decision, which appeal was denied. Id. at pp. 23-24. Ultimately, Plaintiff graduated from UNC
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Charlotte in 2013. Id. at 25. Plaintiff is currently a Senior Network Engineer with Cisco and
continues to serve in an enlisted capacity within the North Carolina Army National Guard. Id.
However, Plaintiff alleges that as a result of all Defendants’ actions and omissions during the
Hearing, his Government clearance has been flagged and this has stopped him from pursuing a
career with the government or military. Id.
PROCEDURAL BACKGROUND
Plaintiff initiated this action against UNC Charlotte, its Board of Governors, and Defendant
on August 12, 2015. (Document No. 1). Plaintiff alleges five causes of action: (1) denial of due
process under the Fourteenth Amendment during UNC Charlotte’s Judicial Board Hearing which
ultimately found him responsible for sexually assaulting Defendant; (2) violation of substantive
due process under the Fourteenth Amendment; (3) violation of the equal protection clause of the
Fourteenth Amendment; (4) violation of Title IX provisions against gender discrimination; and (5)
common law fraud by Defendant.
(Document No. 28, pp. 25-29). He also asserts a claim for
gender discrimination under 20 U.S.C. § 1681 (“Title IX”).
Defendant filed her “Emergency Motion to Seal” in order to prevent disclosure of the
Transcript of the disciplinary hearing held at UNC Charlotte on August 13, 2012 (the
“Transcript”). (Document No. 46). Defendant argues that the Family Educational Rights and
Privacy Act (“FERPA”) provides evidence of a compelling government interest to keep student
educational records private, which overcomes the presumption that court records should be made
public. Id. at 3. In opposition, Plaintiff argues that the Transcript is part of his educational records,
not Defendant’s records, and FERPA does not provide a mechanism in this situation to seal court
documents. (Document No. 55, p. 6). Defendant Doe submitted a reply to Plaintiff’s opposition
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brief, arguing that the Transcript is part of both students’ educational records, and that Plaintiff
cannot waive Doe’s right to privacy. (Document No. 60, p. 2).
Defendant filed her “Motion To Proceed Under a Fictitious Name,” (“Jane Doe”) in order
to preserve her privacy on a matter of a sensitive and highly personal nature, as well as claiming
an interest in preventing retaliation. (Document No. 49; Document No. 49-1, pp. 5-10). Plaintiff
filed a brief in opposition on February 15, 2016. (Document No. 56). Defendant Doe submitted
a reply brief on February 19, 2016. (Document No. 59).
Finally, Defendant filed her “Motion To Seal The Docket” on February 2, 2016, asking to
temporarily seal the docket while her motion to proceed under a fictitious name is pending before
the Court. (Document No. 50). Plaintiff submitted his brief in opposition to the motion on
February 16, 2016. (Document No. 57). Defendant submitted a reply brief on February 16, 2016.
(Document No. 58).
Having each been fully briefed, the motions described herein are now ripe for disposition.
STANDARD OF REVIEW
When a judicial document or record sought to be sealed is filed in connection with a
dispositive motion, the public’s right of access to the document in question arises under the First
Amendment. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252-53 (4th Cir. 1988).
Where the First Amendment provides a right of access to a document, a district court may restrict
access and seal the documents if there is a showing that: (1) the denial serves a compelling
government interest, and (2) the denial is “narrowly tailored to serve that interest.” Va. Dep’t of
State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting Stone v. University
of Maryland Medical System Corp., 855 F.2d 178, 180 (4th Cir. 1988)).
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If a judicial document meets the substantive standards explained above, the Fourth Circuit
also requires that the procedural standards for excision also be met. See In re Knight Pub. Co., 743
F.2d 231, 235 (4th Cir. 1984). Under Knight, a district court must give the public adequate notice
that the sealing of documents may be ordered. Id. Then, the district court must provide for an
opportunity for persons to object to the request before the court renders its decision. Id. The court
must also consider less drastic alternatives to sealing. Id. Finally, if the district court decides to
seal documents, the court must state its reasons on the record, supported by specific factual
findings. Id.
The Federal Rules of Civil Procedure require that the identities of all parties in a case be
disclosed. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties.”).
Allowing parties to proceed anonymously in litigation is rare, as it “undermines the public’s right
of access to judicial proceedings.” Doe v. Public Citizen, 749 F.3d 246, 273 (4th Cir. 2014).
Although generally there is a presumption of openness in judicial proceedings, there can
be occasions in which the concerns of a party seeking anonymity outweigh the general
presumption of openness. James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993). While there is no
recognized legal right to anonymity, courts have the power to grant it where appropriate. The
Fourth Circuit has identified five nonexclusive factors to consider when evaluating a request to
proceed in trial under a pseudonym:
whether the justification asserted by the requesting party is
merely to avoid the annoyance that may attend any litigation or
is to preserve privacy in a matter of sensitive and highly personal
nature; whether identification poses a risk of retaliatory physical
or mental harm to the requesting party or, even more critically,
to innocent non-parties; the ages of the persons whose privacy
interests are sought to be protected; whether the action is against
a governmental or private party; and relatedly, the risk of
unfairness to the opposing party from allowing an action against
it to proceed anonymously.
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Jacobson, 6 F.3d at 238 (internal citation omitted). Privacy concerns of embarrassment are valid,
but do not weigh as heavily as in other circumstances involving more serious risk of disclosure of
more intimate personal information. Doe v. North Carolina Central University, 1999 WL 1939248
*1 (M.D.N.C. 1999).
DISCUSSION
In short, the undersigned finds Defendant’s arguments for sealing the Transcript of the
Hearing, and her motion to proceed under the fictitious name “Jane Doe,” to be convincing.
(Document Nos. 46, 49, 49-1). Under the circumstances, Defendant Doe’s “Emergency Motion
to Seal The Docket” will be denied as moot. (Document No. 50). The undersigned will discuss
each of these motions in turn.
A. Motion to Seal the Transcript of School Disciplinary Hearing
In her “Motion to Seal,” Defendant argues that the public has no First Amendment right to
view the transcript of the Hearing. (Document No. 46 pp. 2-4). She first argues that the Family
Educational Rights and Privacy Act (“FERPA”) strongly indicates there is a compelling
government interest in restricting access to the Hearing Transcript. (Document No. 46, p. 3) (citing
Univ. of N.C. at Chapel Hill v. Jennings, 340 F. Supp. 2d 666, 679 (M.D.N.C. 2004), affirmed in
part 444 F.3d 255 (4th Cir. 2007), rehearing en banc 482 F.3d 686 (4th Cir. 2007) (affirming in
part, vacating in part, remanded), cert. denied 552 U.S. 887 (2007)). FERPA prevents institutions
that receive federal funding from releasing a student’s educational records without that student’s
consent. 20 U.S.C. § 1232g(b)(1). Defendant contends that Plaintiff does not have a FERPA
exception permitting him to release Defendant’s educational records without consent. (Document
No. 46, p. 3).
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Defendant also notes that district courts in the Fourth Circuit have found that redaction or
sealing of information related to alleged sexual abuse victims serves a compelling government
interest. (Document No. 46, p. 4) (citing Alexander v. City of Greensboro, 2013 WL 6687248 at
*5 (M.D.N.C. Dec. 18, 2013); Wilmink v. Kanawha Cnty. Bd. of Educ., 2006 WL 456021 at *3
(S.D.W.Va. Feb. 23, 2006)).
Plaintiff opposes Defendant’s motion, arguing that the Transcript is part of his educational
records, not the Defendant’s records, and FERPA does not provide a mechanism in this situation
to seal court documents. (Document No. 55, p. 6). Additionally, Plaintiff argues that the cases
cited by the Defendant do not support her claim of a compelling interest sufficient to warrant
sealing the Transcript. (Document No. 55, pp. 7-9). Specifically, Plaintiff argues that Alexander
is not relevant because the case involved maintaining the confidentiality of police informants, and
Wilmink involved a Plaintiff who had been a minor at the time of the offense and filed suit nearly
two decades later. (Document No. 55, pp. 7-8).
The undersigned finds that Defendant has a compelling interest in having her private
educational records protected, as provided by FERPA.
The Transcript, which details the
disciplinary judicial process at UNC Charlotte between Plaintiff and Defendant, is kept by UNC
Charlotte. Thus, under the FERPA definition of “education record,” see 20 U.S.C. §
1232g(a)(4)(A), the Transcript constitutes an education record which is protected from
unauthorized disclosure. Furthermore, disciplinary records are education records of both the
accused student and the victim of the alleged crime, so long as the victim is also a student of the
university. Miami Univ., 91 F.Supp.2d 1132, 1149 (S.D. Ohio 2000) affirmed 294 F.3d 797 (6th
Cir. 2002). Defendant has made an affirmative request that the court seal an education record that
was filed without her consent. (Document No. 46). The undersigned is satisfied that FERPA
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provides a compelling interest in protecting the privacy of student records in this instance. Id. at
1158 (“[t]he citizenry does not possess a First Amendment right of access to the disciplinary
records of public universities.”).
The undersigned also finds that Defendant has narrowly tailored her request to seal the
Transcript. (Document No. 46). Defendant does not request the Transcript be stricken from the
record. Id. Rather, she seeks that the Transcript not be accessible to the public. Id. Such sealing
to prevent public disclosure will not affect Plaintiff’s ability to rely on the Transcript in court
proceedings; nor will it affect his ability to utilize the Transcript to verify the date of the
disciplinary proceeding.
Further, Defendant’s request meets the procedural standards set forth in Knight. In re
Knight Pub. Co., 743 F.2d at 235. The first Knight factor analyzes whether there has been public
notice of a request to seal and a reasonable opportunity to challenge the motion. Id. Defendant
Doe’s Motion to Seal was filed within 24 business hours of Plaintiff’s disclosure of the Transcript,
and Plaintiff responded with his Brief in Opposition to Defendant’s motion. (Document Nos. 44,
46, 55). The filing of these motions in ECF constitutes sufficient notice to the public that the court
may seal the Transcript. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1984).
Thus, there has been reasonable opportunity for the public to challenge the motion.
The second Knight factor directs the undersigned to consider less drastic alternatives to
sealing. In re Knight Pub. Co., 743 F.2d at 235. Plaintiff argues that not only does he rely on the
Transcript to establish the date of the proceeding, but he also claims that the Transcript is necessary
for evidence to prove his due process rights were violated during the proceeding. (Document No.
55, pp. 3-6). Without access to the Transcript in its entirety, he would not have the ability to
pinpoint the alleged flaws of the proceeding. Id. Defendant argues that the Transcript contains
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sensitive information which should be sealed from the public, or at a minimum substantially
redacted to permit only the disclosure of the date of the Hearing. (Document No. 46 at p. 5). In
fairness to both parties, the undersigned determines that the sealing of the Transcript is the least
drastic option. Sealing the Transcript allows Plaintiff the ability to rely on the procedural
information in his claim that his due process was violated. Further, sealing the document affords
Defendant her privacy under FERPA. Severely redacting or totally striking the Transcript appear
more serious alternatives that could potentially undermine Plaintiff’s claims, and the undersigned
will not take such action at this time.
Finally, the last Knight element requires the undersigned to state the reasoning for deciding
to seal, supported by specific findings and reasons for rejecting alternatives to sealing. As noted
above, the undersigned decides to seal the Transcript because it is an education record of Defendant
that is protected under FERPA. The undersigned observes that at the outset of the hearing it was
described as a “confidential proceeding” held in “closed session.” (Document No. 44-2, p. 3)
(citing FERPA). Additionally, Plaintiff requested the Hearing be closed pursuant to FERPA.
(Document No. 44-2, p. 4). Further, the Transcript was filed publically without Defendant’s
consent, and she has made an affirmative request to have the Transcript sealed from the public as
it contains personal information regarding an alleged sexual assault. There is no less strict
alternative that would afford both Plaintiff and Defendant equal protection to privacy as
contemplated by FERPA. By sealing the Transcript, Plaintiff may rely on its information for the
duration of this litigation, while Defendant will not be publically victimized by the refusal to
recognize her right to privacy under FERPA.
The undersigned is satisfied that the Defendant has demonstrated a compelling interest in
protecting the privacy of student records, evidenced by the letter and spirit of FERPA, narrowly
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tailored her request to seal, and satisfied the Knight factors. Accordingly, the undersigned will
order that the Transcript of the Hearing be sealed.
B. Motion to Proceed Under the Fictitious Name “Jane Doe”
Defendant next moves to proceed with the case under the fictitious name, “Jane Doe.”
(Document No. 49). The undersigned will apply the Jacobson factors to determine if Defendant’s
motion should be granted.
First, this litigation pertains to “a matter of sensitive and highly personal nature,” as it
concerns an alleged sexual assault by the Plaintiff on Defendant Doe. Jacobson, 6 F.3d at 238.
Sexual misconduct is a subject matter sufficiently sensitive and personal to satisfy this factor. See,
e.g., Doe v. Alger, 2016 WL 1273250 (W.D. Va. Mar. 31, 2016) (allowing both the alleged
perpetrator and victim of sexual assault that was decided by James Madison University’s hearing
board to proceed in federal litigation under fictitious names). This court believes that application
of the first Jacobson factor favors anonymity in this case.
Second, identification of Defendant Doe poses a risk of retaliatory harm. Jacobson, 6 F.3d
at 235. In this case, Defendant Doe claims that if she is not allowed to proceed anonymously, then
she will suffer mental harm by being “re-victimized” by Plaintiff with her legal name appearing
on a public docket revisiting the details of the alleged sexual assault. (Document No. 49, p. 8).
Further, Defendant Doe notes that she pursued her case through the UNC Charlotte judicial
proceeding, which both she and Plaintiff believed to be a confidential setting. (Document No. 46,
p. 2).
Plaintiff brings his case against UNC Charlotte and Defendant Doe based on how the UNC
Charlotte case was conducted. (Document No. 28, pp. 25-29). As Defendant Doe argues that she
is an unwilling litigant, it is further unpersuasive to disallow Defendant Doe from proceeding under
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a fictitious name because UNC Charlotte allegedly failed to afford Plaintiff proper due process,
leaving him with no other alternative than to seek redress in federal court. (Document No. 59 at
pp 8-9); See Doe v. The Rector & Visitors of George Mason Univ., 2016 WL 1574045, at *7 (E.D.
Va. Apr. 14, 2016) (allowing former student to proceed under a pseudonym in federal litigation
against state university alleging his due process was infringed when he was expelled in a university
judicial proceeding for sexual misconduct). The undersigned therefore believes that the second
factor also weighs in favor of allowing Defendant Doe to proceed anonymously.
Third, the age of the Defendant does not add additional weight in favor of proceeding under
a fictitious name, as both parties were legal adults at all relevant times of the case. (Document No.
49, p. 6).
Fourth, the fact that Plaintiff is a private party weighs against Defendant proceeding under
a fictitious name. When a plaintiff challenges the government, courts are more likely to allow him
or her to proceed under a pseudonym than in cases involving private parties, since actions against
private individuals may harm their reputations. See, e.g., Doe v. Pittsylvania Cnty., Va., 844
F.Supp.2d 724, 730 (W.D. Va. 2012).
Fifth, there is no risk of unfairness to the Plaintiff if Defendant is allowed to proceed as
Jane Doe. In this case, Plaintiff argues that allowing Defendant Doe to proceed anonymously will
impose unfairness on him as she made the sexual assault allegations against him publically and
should not be allowed to use anonymity as a shield against public scrutiny. (Document No. 56 at
p. 13). Both Plaintiff and Defendant Doe cite to Doe v. N.C. Central Univ., 1999 WL 1939248
(M.D.N.C. 1999), a North Carolina case about an employee of North Carolina Central University
who alleged her supervisor sexually assaulted her. Id. The Doe v. N.C. Central Univ. court refused
to allow the plaintiff to proceed on her claim anonymously because she made her sexual assault
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allegations publically by voluntarily choosing to bring the lawsuit in federal court; in addition, her
attorney gave several statements to the media regarding the case and charges against the defendant.
Id. at *4.
The facts presented here are distinguishable from Doe v. N.C. Central Univ., as Plaintiff is
the party who voluntarily brought the current action against Defendant Doe.
Furthermore,
Defendant Doe brought her claim of sexual assault to the UNC Charlotte administration, and
sought relief through a closed, confidential school adjudication. As such, the fifth factor weighs in
favor of anonymity because Defendant did not choose to be involved in this litigation.
The undersigned concludes that application of the Jacobson factors weighs in favor of
Defendant. The sensitive nature of the issues in dispute in this case, the risk of retaliatory harm,
and the fact that Defendant is an unwilling litigant in this case provide sufficient grounds to allow
Defendant to proceed under a fictitious name. Accordingly, the undersigned will order that
Defendant proceed in the case as “Jane Doe.”
C. Motion to Seal the Docket
Finally, Defendant argues that the Court should seal the docket temporarily for 48 hours
following the filing of the motion to allow consideration of the motion to proceed under a fictitious
name. (Document No. 50, p. 1). Given that the undersigned has reached a conclusion regarding
Defendant Doe’s motion to proceed under a fictitious name, Defendant’s motion is now moot.
CONCLUSION
IT IS, THEREFORE, ORDERED that “Defendant Jane Doe’s Motion To Seal”
(Document No. 46) is GRANTED. Exhibit 2 of “Plaintiff’s Brief In Opposition To Defendants’
Motion To Dismiss” (Document No. 44-2) is hereby SEALED.
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IT IS FURTHER ORDERED that “Defendant Jane Doe’s Motion to Proceed Under a
Fictitious Name” (Document No. 49) is hereby GRANTED. Defendant shall proceed under the
name, “Jane Doe.”
IT IS FURTHER ORDERED that “Defendant Doe’s Motion to Seal Docket” (Document
No. 50) is hereby DENIED AS MOOT.
Signed: July 12, 2016
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