DOBSON v. THE MILTON HERSHEY SCHOOL AND SCHOOL TRUST et al

Filing 229

MEMORANDUM ORDER - IT IS ORDERED THAT Documents 45, 46, 48, 54, 55, 59, 80, 82, 85, and 86 will be unsealed and redacted as follows see ORDER for complete details. IT IS FURTHER ORDERED THAT implementation of this order shall be STAYED for 10 days i n order to allow the parties the opportunity to review the courts order and seek further judicial review of this order, if they deem it appropriate. Furthermore, if the parties do not seek further review of this decision, counsel shall confer and ten der copies of stipulated, redacted records to the clerk for release on the public docket within 30 days from the date of this order. Finally, this order is entered without prejudice to any party requesting further clarification of our directions and instructions. Signed by Magistrate Judge Martin C. Carlson on December 17, 2020. (kjn)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ADAM DOBSON,
Plaintiff,
v.
THE MILTON HERSHEY SCHOOL
AND SCHOOL TRUST, et al.,
Defendants.

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Civil No. 1:16-CV-1958

(Chief Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM ORDER1
I.

Introduction
The plaintiff, a former student at the Milton Hershey School (“MHS”),

brought this lawsuit against MHS in 2016. This suit was ultimately dismissed when

1

Pursuant to 28 U.S.C. § 636(b)(1)(A), this court, as a United States Magistrate
Judge, is authorized to rule upon motions by intervenors to unseal certain court
records. Parson v. Farley, 352 F. Supp. 3d 1141, 1145 (N.D. Okla. 2018), aff'd, No.
16-CV-423-JED-JFJ, 2018 WL 6333562 (N.D. Okla. Nov. 27, 2018). We note for
the parties that under 28 U.S.C. ' 636(b)(1)(A) the parties may seek review of this
order by filing a motion to reconsider with the district court since: AA judge of the
[district] court may reconsider any . . . matter [decided under this subparagraph]
where it has been shown that the magistrate judge's order is clearly erroneous or
contrary to law.@ 28 U.S.C. ' 636(b)(1)(A).

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the district court granted the defendants’ motion for summary judgment on May 6,
2020. (Doc. 222).
Throughout the course of the litigation, The Philadelphia Inquirer, PBC (“the
Inquirer”), moved to intervene and sought to have a host of records in this case
unsealed, and these motions were referred to the undersigned. We granted the
Inquirer’s motion to intervene but denied its request to unseal certain documents
based on our view that there remained good cause for the continued sealing of these
documents. (Doc. 176). The Inquirer filed objections to our order, and the district
court remanded the matter, finding that unsealing the documents with redactions,
rather than wholesale sealing of the documents, would strike an appropriate balance.
(Doc. 193). In doing so, the district court advised the parties to work together to
come to a resolution regarding the appropriate redactions. We held a telephone
conference with the parties, during which the parties advised that there were only
two narrow areas in which they could not agree on the appropriate redactions, and
accordingly, we ordered the parties to submit letter briefs outlining their respective
positions on the disputed redactions. (Docs. 216, 217).
After a review of the proposed redactions, and consistent with the district
court’s order, Documents 45, 46, 48, 54, 55, 59, 80, 82, 85, and 86 will be unsealed,
subject to the very limited redactions that we will discuss below.

2

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II.

Discussion
In our October 22, 2019 Memorandum Opinion (Doc. 176), we declined to

unseal the disputed documents. We first found that these documents did not qualify
as “judicial records,” and thus, were not subject to a presumptive right of public
access. (Id., at 12). Rather, we found that these documents fell into the category of
discovery materials subject to the “good cause” standard under Rule 26 of the
Federal Rules of Civil Procedure. See Pansy v. Borough of Stroudsburg, 23 F.3d 772
(3d Cir. 1994). We reasoned that:
The sealed records in this case relate exclusively to a discovery dispute
between the parties, a discovery dispute which highlights why
discovery materials are typically treated as private and not
presumptively subject to public disclosure. At bottom, these records
involve a dispute between the parties regarding whether discovery
information was being improperly disseminated in a fashion which was
unduly prejudicial. The district court discretely addressed and resolved
this issue in a fashion which avoided further potentially prejudicial
disclosure of discovery matters.
(Doc. 176, at 12). We then conducted a document-by-document review and applied
the Pansy factors,2 and we found that there was good cause for the documents to
remain sealed. (Id., at 14).

The Court in Pansy set forth a non-exhaustive list of factors to consider when
determining if there is good cause for a protective order under Rule 26, including:
(1) whether disclosure will violate any privacy interests; (2) whether the
information is being sought for a legitimate purpose or for an improper purpose;
(3) whether disclosure of the information will cause a party embarrassment; (4)
whether confidentiality is being sought over information important to public health
and safety; (5) whether the sharing of information among litigants will promote
3
2

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Upon consideration of the Inquirer’s objections to our order and relying on
the Court of Appeals’ decision in In re Avandia Marketing, Sales Practices and
Products Liability Litigation, 924 F.3d 662 (3d Cir. 2019), the district court found
that unsealing these documents with redactions, rather than wholesale sealing, would
be the more appropriate course of action. (Doc. 193). Accordingly, the Court
remanded the matter back to the undersigned to mediate a resolution of this matter
between the parties. (Id., at 23-24). We ordered the parties to consult and confer
regarding what information should remain redacted, and the parties have now
narrowed their dispute to two sets of redactions: information that the defendants
contend should be redacted pursuant to the Rule 26 good cause standard, and
identifying information related to nonparties to this case, including MHS personnel.
(Docs. 216, 217). In accordance with the district court’s order, and after careful
review of the proposed redactions, we will unseal these documents subject to the
narrowly-tailored redactions set forth below.
At the outset, as we have explained, both the district court and the undersigned
directed the parties to consult and confer to come to a resolution of this matter. To
that end, the parties have agreed that two of the disputed documents should be

fairness and efficiency; (6) whether a party benefitting from the order of
confidentiality is a public entity or official; and (7) whether the case involves
issues important to the public. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483
(3d Cir. 1995) (citing Pansy, 23 F.3d at 787-91).
4

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unsealed with no redactions. Accordingly, Documents 59 and 86 will be unsealed in
their entirety. In addition, it appears that the parties have agreed upon a number of
redactions within these disputed documents.3 However, while the remaining eight
documents will also be unsealed, the parties dispute the scope of the defendants’
proposed redactions.
A. Information Redacted Pursuant to the Rule 26 Good Cause Standard4
The defendants have submitted their proposed redactions to Documents 45,
46, 54, 55, 80, 82, and 85 in camera. For their part, the defendants contend that there
is good cause to redact this information from these documents as the information
relates to confidential discovery requests, is derived from leaked interrogatories or
confidential attorney communications, contains information regarding settlement
discussions, or involve prejudicial statements made by the plaintiff’s former counsel.
(Doc. 217-1). The Inquirer concedes that any information related to settlement
discussions should be redacted, and also does not contest the redaction of Document
46, Exhibit 11. (Doc. 216, at 3 n. 1). However, the Inquirer contends that much of
the redacted information has already been made public in newspaper articles
concerning the case and in other filings in the case.

The agreed upon redactions are set forth in black in the defendants’ in camera
submissions.
4
These redactions are set forth in pink in the defendants’ in camera submissions.
5
3

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Our review of these redactions reveals that some of the information contained
in these documents is, in fact, derived from or related to settlement discussions and
attorney communications. On this score, the information that has been redacted by
the defendants from Document 80, including exhibits 2 and 3, shall remain redacted.
Exhibits 2 and 3 contain communications between counsel that not only relate to
settlement discussions, but also to the underlying accusations of improper disclosure
of discovery information. The remaining redactions in Document 80 relate to those
same communications. Accordingly, Document 80 will be unsealed, but subject to
the redactions proposed by the defendants. For the same reasons, the redactions
proposed in Document 82 at pages 11-12 will similarly remain redacted.
Additionally, we will sustain the defendants’ proposed redactions to
Document 46 at exhibits 11 and 12. The Inquirer has conceded that it is not
challenging the redaction of exhibit 11. (Doc. 216, at 3 n. 1). Moreover, exhibit 12
similarly contains confidential attorney communications. Accordingly, we will
sustain the redactions to these documents.
As to the remainder of the defendants’ proposed redactions pursuant to Rule
26, we find that redaction of this information is inappropriate. While the defendants
posit that this information reveals content of confidential discovery requests, is
derived from a leaked interrogatory or extrajudicial statements, or consists of a
prejudicial statement made by the plaintiff’s former counsel, we find that much of
6

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this information is already in the public domain. Accordingly, we will order the
remainder of the documents unsealed without the redactions proposed by the
defendants.
The redactions to the remaining documents seek to protect information that
has already been disclosed in documents on the record that are available to the
public, as well as in news articles that have been written throughout the course of
this litigation. As one court in this circuit reasoned, “[a]fter material appears
unsealed on a court’s docket, and therefore in the public domain, there are little, if
any, plausible justifications for subsequently sealing the same material.” In re
Application of Storag Etzel GmbH, 2020 WL 2949742, at *29 (D. Del. Mar. 25,
2020). Further, the court noted:
These principles have particular force in the modern world of electronic
filing and judicial dockets openly accessible to the public on
government and private databases. Gambale v. Deutsche Bank AG, 377
F.3d 133, 144 (2d Cir. 2004) (“But however confidential it may have
been beforehand, subsequent to publication it was confidential no
longer. It now resides on the highly accessible databases.”). See also
American Civil Liberties Union of Mississippi v. Fordice, 969 F. Supp.
403, 411 (S.D. Miss. 1994) (“Regarding documents which are in the
public domain, if a file contains only material which has already been
made public, the Court finds that such files should remain completely
open and unredacted.”); aff'd sub nom. American Civil Liberties Union
of Mississippi, Inc. v. King, 84 F.3d 784 (5th Cir. 1996); Performance
Chevrolet, Inc. v. ADP Dealer Services, Inc., No. 2:14-CV-2738 TLN
AC, 2015 WL 13855488, at *1 (E.D. Cal. Feb. 27, 2015) (“Defendant
has identified no rule, statute, case or other authority requiring that the
document it filed must be sealed or redacted after the fact. To the
contrary, the cases addressing this issue have denied requests to seal
documents where they were already publicly filed, or where the
7

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information contained in the documents is already in the public
domain.”) citing Level 3 Communications, LLC v. Limelight
Networks, Inc., 611 F. Supp. 2d 572 (E.D. Va. 2009); Joint Equity
Committee of Investors of Real Estate Partners, Inc. v. Coldwell Banker
Real Estate Corp., 2012 WL 234396, at *2 (C.D. Cal. 2012); Cooke v.
Town of Colorado City, Ariz., 2013 WL 3155411, at *2 (D. Ariz.
2013); Apple, Inc. v. Samsung Electronics Co., Ltd., 2014 WL 722489,
at *1 (N.D. Cal. 2014).
Id. In addition, as the district court noted, materials “which are already in the public
domain,” such as newspaper articles, “plainly need not be sealed.” (Doc. 193, at 2223).
Here, much of the information that MHS seeks to keep redacted in the
disputed documents has already appeared in the public domain, whether on the
docket in this case or in various news articles that were written throughout this
litigation. This information is included in Documents 45, 46, 54, 55, 82, and 85.
Specifically, in Document 46, the redactions proposed at pages 4-5, 10 n.5, 13, and
17 contain information regarding the plaintiff’s allegations that he was forced to
watch gay conversion therapy videos with his MHS house parents, and that another
former student had come forth with similar allegations. This allegation against MHS
is already in the public domain, as it is set forth both in the plaintiff’s Amended
Complaint and in a news article published by The Inquirer in 2017. Similarly, the
redactions proposed to Documents 54 and 55 contain similar information regarding
the plaintiff’s and the second former student’s allegations of being forced to watch

8

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conversion therapy videos at MHS. Accordingly, we do not find good cause for the
continued redaction of this information.
The remainder of the proposed redactions to Document 82, as well as the
redactions to Document 85, also contain information that is already in the public
domain. Specifically, these proposed redactions contain information concerning the
plaintiff’s allegations of MHS violating its Deed of Trust by forcing students to
conform to Evangelical ideals, an allegation that was the subject of an article written
by the Patriot News in January of 2018. This information is proposed to be redacted
both from the text of Document 82 as well as the exhibits attached thereto, which
contain an affidavit from the plaintiff’s former counsel reiterating these allegations.
In addition, there is information concerning an allegation that the plaintiff’s former
counsel leaked discovery information to a journalist, but this information largely
encompasses what has already been shared in the public domain in news articles and
public statements. Accordingly, because we find that this information is already in
the public domain, there is no justification for the continued redaction of this
information.
In sum, the defendants’ proposed redactions to the disputed documents largely
focus on information and allegations that have already been shared in the public
domain, whether through news articles, public statements, or in documents that are
unsealed and on the public docket in this case. Given that the redaction of this
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information cannot now not “un-ring that bell.” In re Application of Storag Etzel
GmbH, 2020 WL 2949742, at *29, we will order that these documents be unsealed,
subject to only the limited redactions we have discussed above to protect information
obtained through either settlement discussions or attorney communications.
B. Information Related to Nonparties5
Finally, the Inquirer seeks to have the names of certain third parties
unredacted from these documents. These third parties include MHS personnel, as
well as the plaintiff’s former house parents at MHS. These individuals’ names
appear on the docket in publicly-filed documents, either in court orders or in the
court’s summary judgment memorandum, as well as news articles about the
litigation.
On this score, it is worth reiterating that “[a]fter material appears unsealed on
a court’s docket, and therefore in the public domain, there are little, if any, plausible
justifications for subsequently sealing the same material.” In re Application of
Storag Etzel GmbH, 2020 WL 2949742, at *29. Moreover, and significantly, names
of third parties, without any other identifying information, are not the “kind of
information that courts will protect.” Three Brothers Supermarket, Inc. v. United
States, 2020 WL 5749942, at *6 (E.D. Pa. Sept. 25, 2020) (quoting Avandia, 988
F.2d at 672). Here, the identity of the plaintiff’s house parents has been revealed in

5

These redactions are set forth in orange in the defendants’ in camera submissions.
10

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both the district court’s summary judgment opinion and in news articles written
about the litigation. Further, the names of the other individuals the Inquirer seeks to
have unredacted appear on the docket in unsealed court orders. Accordingly, because
these individuals—Mr. and Mrs. Slamans, the plaintiff’s house parents; Dr. Doris
Chang; Nadege Fleurimond; and Elizabeth Kochis—appear on the public docket,
redacting their names from these disputed documents will not “un-ring that bell.” In
re Application of Storag Etzel GmbH, 2020 WL 2949742, at *29. Accordingly, we
will order that the names of these individuals be unredacted to the extent they appear
in any of the documents at issue. In addition, for the reasons set forth above, we will
grant the Inquirer’s request to unredact the names of the individuals whose names
we ordered unredacted in Wartluft, et al., v. Milton Hershey School, et al., No. 1:16CV-2145, to the extent those names appear in these documents.
While we have reached these conclusions regarding the release of records,
mindful of the fact that concerned persons cannot “un-ring that bell,” In re
Application of Storag Etzel GmbH, 2020 WL 2949742, at *29, once records are
disclosed, we will stay our order to ten days in order to allow litigants to determine
whether they wish to seek further review of our decisions.
An appropriate order follows.

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III.

Order
Accordingly, for the foregoing reasons, IT IS ORDERED THAT Documents

45, 46, 48, 54, 55, 59, 80, 82, 85, and 86 will be unsealed and redacted as follows:6
1. Documents 45, 48, 54, 55, 59, 85, and 86 shall be unsealed subject to any
redactions agreed upon by the parties;
2. Document 46 shall be unsealed subject to the redactions at Exhibits 11 and
12, as well as to any redactions agreed upon by the parties;
3. Document 80 shall be unsealed subject to all of the redactions as proposed
by the defendants, as well to any redactions agreed upon by the parties;
4. Document 82 shall be unsealed subject to the limited redactions proposed
at pages 13-14, as well as to any redactions agreed upon by the parties; and
5. The following individuals’ names shall be unredacted to the extent they
appear in the documents at issue: Mr. and Mrs. Slamans, Dr. Doris Chang,
Nadege Fleurimond, Elizabeth Kochis, Dr. Benjamin Herr, Mic Stewart,
Heather Teter, Dr. Jeanette Morales-Brandt, and Dr. Lidija PetrovicDovat. To the extent there are names of other third-party individuals
redacted within these documents, those names shall remain redacted.

We note that some of the page numbers do no correlate to the defendants’ list of
redactions in Exhibit 1 (Doc. 217-1). Accordingly, the defendants shall be
responsible for ensuring that the information we are unredacting is the proper text
within these disputed documents when the unredacted copies are filed.
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IT IS FURTHER ORDERED THAT implementation of this order shall be
STAYED for 10 days in order to allow the parties the opportunity to review the
court’s order and seek further judicial review of this order, if they deem it
appropriate. Furthermore, if the parties do not seek further review of this decision,
counsel shall confer and tender copies of stipulated, redacted records to the clerk for
release on the public docket within 30 days from the date of this order. Finally, this
order is entered without prejudice to any party requesting further clarification of our
directions and instructions.
So ordered this 17th day of December 2020.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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