DOE v. SWARTHMORE COLLEGE

Filing 95

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 7/27/2017. 7/28/2017 ENTERED AND COPIES E-MAILED. (ems)

,-

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MAROOF HAQUE,
Plaintiff,
CIVIL ACTION
v.

NO. 15-1355
SWARTHMORE COLLEGE,

F\LED
JUL 2 8 2017
KATE BARKMAN. Clerk
By
Qep. Clerk

Defendants.
MEMORANDUM
JOYNER, J.

Ju1y

0(7 '

2017

Before the Court is Plaintiff's Motion to Lift the Seal,
Defendant's Response thereto, and Plaintiff's Reply in Further
Support thereof. For the reasons stated below, Plaintiff's Motion
is GRANTED in part and DENIED in part.
I. Background

This action stems from an incident that occurred in
September 2011 on the Swarthmore College campus between Plaintiff
and a female student ("Jane Doe"), both of whom were then
freshmen at the college. As a result, Plaintiff alleges that he
was falsely accused of sexual assault. In March 2015, Plaintiff
filed this lawsuit asserting, inter alia, that Swarthmore
violated his civil rights during the course of its investigation
and adjudication of the sexual assault complaint against him.
Ultimately, Swarthmore suspended him from the college, and
subsequently expelled him.

•'

On March 20, 2015, prior to the filing of the Amended
Complaint, it was ordered that all case filings on record were to
be placed temporarily under seal. On April 8, 2015, this Court
denied Plaintiff's motion to lift the seal in this matter.
Plaintiff subsequently filed an Amended Complaint, a Second
Amended Complaint, and a Third Amended Complaint. On May 3, 2016,
after Plaintiff's Third Amended Complaint was filed, this Court
approved a Stipulated Confidentiality Agreement and Protective
Order ("Protective Order") that provided protections to materials
produced in discovery. These protections extend to materials
pertaining to students who are not parties to this litigation
("Non-Party Students"), but who are protected by the Family
Educational Rights and Privacy Act of 1974, 20 U.S.C.

§

1232g

("FERPA"). Additionally, an Order Regarding Production of FERPAProtected Information ("FERPA Order") was entered as well.
Plaintiff now moves again to lift the seal.
II. Standard
When evaluating the necessity of a seal, the Third Circuit
has asserted that there is a strong presumption of public access
to "judicial records and documents." Leucadia, Inc. v. Applied
Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir. 1993) (internal
quotations and citations omitted); See, In re Cendant Corp., 260
F.3d 183, 192 (3d Cir. 2001). The presumption of "public access
2

is a recognized and venerated principle" but it "'is not
absolute,'" and, accordingly, can be rebutted by a showing of
good cause. Cendant, 260 F.3d at 194 (quoting Littlejohn v. Bic
Coro., 851 F.2d 673, 678 (3d Cir. 2001)); See also, Fed. R. Civ.
P. 5.2, 26(c). To do so, the "party seeking to seal any part of a
judicial record bears the heavy burden of showing that 'the
material is the kind of information that courts will protect' and
that 'disclosure will work a clearly defined and serious injury
to the party seeking closure.'" Miller v. Indiana Hosp., 16 F.3d
549, 551 (3d Cir. 1994) (quoting Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1071 (3d Cir. 1984)). When alleging the injury
that would result from disclosure, the party must do so with
"specificity," avoiding "broad allegations of harm." Cendant, 260
F.3d at 194. Even after a sealing has been ordered, its
continuance must be reevaluated considering "current evidence"
and "must be lifted at the earliest possible moment when the
reasons for sealing no longer obtain." Id. at 196. However, when
protection is being sought for information pertaining to a nonparty, broader restrictions can be used to prevent harm to the
non-party. Frank v. Honeywell Int'l Inc., No. 15-mc-00172, 2015
WL 4770965, at *4

(E.D. Pa. August 13, 2015).

It is first required that the party moving to unseal the
judicial record "come forward with a reason to modify the order."
3

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790

(3d Cir. 1994).

Then, it must be determined whether there is good cause, for
which the Pansy Court provides the following eight factors to
consider:

(1) whether there is "an interest in privacy";

(2)

"whether the information is being sought for a legitimate purpose
or for an improper purpose";
in embarrassment;

(3) whether disclosure will result

(4) whether the information to be protected is

"important to public heal th and safety";

( 5) whether disclosure

of the "information among litigants would promote fairness and
efficiency";

(6) "whether a party benefitting from the order of

confidentiality is a public entity or official";

(7) "whether the

case involves issues important to the public"; and (8) "the
parties' reliance on the [existing] order." Id. at 787-89.
Nevertheless, this is not an exhaustive list of factors to be
considered. Id. at 789.
II. Discussion
Both parties agree that Plaintiff's original complaint (Doc.
No. 3), the Amended Complaint (Doc. No. 12), and the Second
Amended Complaint (Doc. No. 21) ought to remain under seal. We
agree. See, Bloom v. Shalom, No. 13-1442, 2014 WL 356624, at *4
(W.D. Pa. January 31, 2014) (finding it appropriate to seal
stricken complaint "to avoid public circulation" of pleadings
that were deemed immaterial). Additionally, both parties agree
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that the complainant "Jane Doe" should continue to be referred to
by that pseudonym in future filings. The point of contention here
lies in whether non-party students ought to be identified by
their names in future pleadings.
In its Motion to Lift the Seal, Plaintiff asserts that
colleges' adjudication of sexual assault complaints is an
important issue to the public, which necessitates the public's
access to this court record. Defendant contends that any
information it provides regarding non-party students implicates
the Family Educational Rights and Privacy Act (FERPA) 20 U.S.C.

§

1232g (2013) and, therefore, demands protection.
(A)

FERPA

The Family Educational Rights and Privacy Act is a federal
law enacted with the purpose of ensuring parents' access to their
children's educational records, as well as preventing the
improper disclosure of those records. 20 U.S.C.

§

1232(g). FERPA

induces educational institutions to act in accordance with its
standards by conditioning these institutions' receipt of federal
funds on their compliance. Id. As it pertains to the unauthorized
release of educational records, FERPA defines those materials as
"those records, files, documents, and other materials which (i)
contain information directly related to a student; and (ii) are

5

maintained by an educational agency or institution or by a person
acting for such agency or ins ti tut ion." Id. at

§

1232g (a) ( 4) (A) .

We agree, as do the parties, that disciplinary records of
non-party student comparators fall under FERPA. However, we are
unpersuaded by Defendant's allegation that any information that
it produces relating to non-party students implicates FERPA. The
Protective Order acknowledges that testimony by a non-party
student that refers to a disciplinary record, or any other
"educational record" that is covered by FERPA, is to be protected
in the same manner that the record would be protected.

(Doc. No.

46, at 2). However, whether testimony by a non-party student,
which simply references specific students, is given protection
under FERPA is less clear. See, Jennings v. Univ. of North
Carolina, 340 F.Supp.2d 679,

684 (M.D.N.C. 2004) (denying

protection to depositions which contained specific references to
non-party students because they were not "educational records" as
defined by FERPA) . Regardless, materials covered by FERPA do not
gain immediate protection, but, instead, are merely presumed to
have a strong privacy interest attached. Lei Kev. Drexel Univ.,
No. 11-6708, 2014 WL 1100179, at *5 (E.D. Pa. Mar. 20,
2014) (holding that redacted student files, which fall under
FERPA's definition of "educational records," were to be made
available for discovery to enable Plaintiff to prove his claim) .
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Yet, as the Defendant notes, the current Protective Order
requires that references to non-party students be redacted.

(Doc.

No. 46, at 11). We find it unnecessary to determine whether the
information sought here is covered by FERPA because we hold that,
even in the absence of a FERPA implication, there continues to be
good cause for referring to non-party students by pseudonyms in
future filings.
(B) Balancing Test
Current evidence must be evaluated to determine whether
there continues to be good cause for keeping the identities of
these non-party students anonymous. Accordingly, we turn to the
factors set forth in Pansy. We first consider whether there are
privacy interests that are deserving of protection. A privacy
interest may establish good cause when disclosure could work an
"'unnecessary or serious pain'" onto a party. Haber v. Evans, 268
F.Supp.2d 507, 511 (E.D. P.a. 2003) (quoting Publicker Indus., 733
F.2d at 1071). This case centers around the adjudication of a
sexual assault complaint, a sensitive matter, which is
acknowledged by both the existence of the Protective Order, and
the language used in that Order.

(Doc. No. 46, at 1). In this

instance we recognize that the privacy interest belongs not to
the Defendant, but instead to the non-party students themselves.
It is relevant that seven students filed objections to the
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possible disclosure of their educational records, suggesting that
a harm may result from disclosure. However, we are not thoroughly
convinced that this would constitute an "unnecessary or serious
pain" and so we find that this factor only marginally supports
keeping the identities of non-party students redacted.
Next, we must determine whether the identities of these nonparty students are being sought for a legitimate purpose.
Plaintiff's Reply correctly states that he is not required to
show that he would experience a "significant burden" should the
non-party students remain unidentified. Additionally, he argues
that disclosure is necessary for administrative and procedural
ease and because this case concerns issues of public interest.
Given that Defendant does not assert that Plaintiff is seeking
disclosure for an illegitimate purpose, we do not find that
Plaintiff's purpose is improper. See, Arnold v. Pennsylvania,
Dep't of Transp., 477 F.3d 105, 109-10 (3d Cir. 2007); Rossi v.
Schlarbaum, No. 07-3792, 2008 WL 222323, at *3 (E.D. Pa. January
25, 2008).
Next, we consider whether keeping the identities of the nonparty students under seal would prevent embarrassment. When a
party seeks to protect information primarily to avoid
embarrassment, it must be shown that the embarrassment is
"particularly serious." Pansy, 23 F.3d at 787
8

(quoting Cipollone

v. Ligget Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).
Additionally, a party who asserts that they will suffer injury as
a result of disclosure must provide more than generalized
allegations that their reputation, including both personal and
professional relationships, will be injured. See Arnold, 477 F.3d
at 110; Rossi, 2008 WL 222323, at *3. Here, the Defendant simply
alleges that there are FERPA implications, but does not allege
that non-party students will suffer embarrassment should they be
identified in future pleadings. Therefore, this factor militates
in favor of lifting the seal.
Additionally, we must determine whether the disclosure of
the names of non-party students is important to public health and
safety, whether this case involves issues important to the
public, and whether the party benefitting from the order of
confidentiality is a public entity. To begin, it is important to
note that neither the non-party students nor the Defendant are
public entities or officials, thus, lessening the need for
disclosure. In Benedict v. McMahon, 315 F.R.D. 447, 452

(E.D. Pa.

2016), the Court held that Plaintiff's action against a paramedic
for injuries she sustained while receiving medical assistance did
concern the health and safety of the public. However, the
specific information sought to be disclosed, Defendant's expunged
criminal record, did not; therefore, the Court found that this
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factor weighed against disclosure. Id. Likewise, here, the case
may be important to public health and safety, but the identities
of the non-party students are not. Accordingly, this factor
supports the continuing redaction of non-party students' names.
We now turn to whether this case is related to issues of
public importance. In Doe v. Temple Univ., No. 14-4729, 2014 WL
4375613, at *2

(E.D. Pa. September 3, 2014), Plaintiff brought

suit against his University alleging that the school had violated
his due process rights during its adjudication of the sexual
assault complaint against him. There, the Court, while
considering Plaintiff's motion to proceed under pseudonym, stated
that the manner in which colleges respond to sexual assault
complaints is an "important issue[] commanding national
attention." Id. Similarly, here, Plaintiff brought this action
alleging that Swarthmore College violated his rights throughout
the investigation and adjudication of the sexual assault
complaint against him. For that reason, we find that this case
concerns issues, like those in Doe v. Temple Univ., which
"command national attention." See, id. Accordingly, this factor
weighs in favor of disclosure.
It must also be determined whether disclosure of the
identities of the non-party students would promote fairness and
efficiency. Efficiency is fostered when disclosure "expedites the
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trial timeline." United States v. Johnson, 191 F.Supp.3d 363, 372
(M.D. Pa. 2016). Fairness is furthered when parties have access
to the relevant and necessary documents to prove their claims.
See, Wallace v. Powell, No. 3:09-cv-0291, 2012 WL 1191607, at *4
(M.D. Pa. April 10, 2012) (finding disclosure of Plaintiffs'
expunged records would not promote fairness because they were
unnecessary to prove the defense which was being raised by
Defendant). Regarding efficiency, Plaintiff, in his Reply, argues
that it is procedurally burdensome for these non-party students
to remain anonymous. Plaintiff's argument is in line with the
idea that, typically, efficiency is furthered when information is
disclosed between parties. See, Benedict, 315 F.R.D. at 452.
However, it must also promote fairness. Here, although redacted,
both parties have access to the documents and "it would be unfair
to modify an order that was stipulated to and relied upon by the
parties." Wallace, 2012 WL 1191607, at *4. For that reason, we
find that this factor weighs in favor of protection.
Finally, in determining whether modification to the
Protective Order is warranted, we must consider the original
parties' reliance on that order. However, a party's reliance on
an order is not dispositive because it is assumed that the
parties acted with knowledge that it might be altered or modified
at a later date. Pansy, 23 F.3d at 790. Defendant calls attention
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to the fact that, pursuant to the FERPA Order, seven students
filed objections with this Court regarding the disclosure of
their personal information. There is no indication that any other
action was taken in reliance on the Protective Order or the FERPA
Order. Because we cannot discern any detriment that would befall
Defendant as a result of its reliance, we find that this factor
neither favors nor supports disclosure. In summary then, inasmuch
as we find that just two of the eight Pansy factors favors
lifting the seal on this action, we decline to do so at this
time.
III. Conclusion
After considering the submissions from both parties
regarding Plaintiff's Motion to Lift the Seal, we find that there
continues to be good cause for the use of pseudonyms for nonparty students, including complainant, "Jane Doe," in future
pleadings and we therefore decline to lift the seal in this
action at the present time. In so holding, however, we recognize
the possibility that the moving party may, in the future,

succeed

in making a compelling showing that the equities then favor
opening these proceedings. Given that that showing has not yet
been made, this motion is therefore granted in part and denied in
part in accordance with the attached order.

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