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

Filing 350

MEMORANDUM OPINION AND ORDER gramtomg 303 MOTION to Unseal Judicial Records filed by The Philadelphia Inquirer, PBC. Implementation of this order will be STAYED for 10 days in order to allow the litigants the opportunity to review th e courts order and seeks further judicial review of this order, if they deem it appropriate. Furthermore, with respect to redacted records, if the parties do not seek further review of this decision, they shall tender copies of stipulated, redacted records to the clerk for release on the public docket within 30 days from the date of this order. Signed by Magistrate Judge Martin C. Carlson on March 6, 2020. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al.,
Plaintiffs,
v.
THE MILTON HERSHEY SCHOOL
AND SCHOOL TRUST, et al.,
Defendants.

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Civil No. 1:16-CV-2145

(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM OPINION1
I.

Introduction
On June 29, 2016, the plaintiffs, Julie Ellen Wartluft and Frederick Bartels,

acting individually and on behalf of the estate of their deceased daughter, filed this
lawsuit against the Milton Hershey School and the Hershey Trust (collectively

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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: “A 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).

“MHS”). (Doc. 1). This lawsuit arose out of a singular tragedy—the suicide of the
plaintiffs’ 14-year-old daughter in June of 2013, at about the time of her expulsion
from MHS following two episodes of hospitalization for severe depression. (Id.) The
plaintiffs alleged that this suicide was a result of unlawful discriminatory practices
by the defendants, and specifically alleged that MHS had a two-hospitalization
policy which led to the expulsion of emotionally fragile students once those students
underwent two hospitalizations for mental illness. These allegations formed one of
the legal and factual pillars for this lawsuit. (Id.)
As we have observed, on occasion, other disputes have threatened to overtake
and displace the resolution of the merits of these claims. Wartluft v. Milton Hershey
Sch. & Sch. Tr., No. 1:16-CV-2145, 2018 WL 3995697, at *1 (M.D. Pa. Aug. 21,
2018).These disputes have included litigation relating to access to previously sealed
court records. In particular, The Philadelphia Inquirer, PBC (“The Inquirer”), filed
a motion to intervene and unseal a number of docket entries in this case on June 20,
2019 (Doc. 266), and the motion was referred to the undersigned. We granted the
motion to intervene and ordered that the documents The Inquirer sought be unsealed,
subject to very limited redactions to protect the interests of nonparties. Now, The
Inquirer has filed a second motion to unseal records, which seeks to unseal several
docket entries related to the parties’ pending cross motions for summary judgment

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in this case. (Doc. 303). This motion was referred to the undersigned on January 21,
2020. (Doc. 310).
After a review of the parties’ submissions, we find that the documents The
Inquirer seeks to have unsealed should be unsealed, as MHS has not shown good
cause for the continued sealing of these documents. We further find that many of the
redactions to these documents that MHS proposes are overbroad. Accordingly, we
will order these documents unsealed, subject to only limited redactions to protect the
interests of nonparties to this litigation.
II.

Discussion
As we have explained, The Inquirer seeks to have multiple docket entries in

this case unsealed and argues that the public has a right to access these documents,
particularly given the nature of the allegations against the defendants. We agree with
The Inquirer that a number of these docket entries should be unsealed, subject to the
redaction of the names and/or identifying information of third-parties in order to
protect those individuals’ privacy interests. However, our review of the proposed
redactions reveals that some of these redactions are overbroad, particularly as they
relate to the school or medical records of the plaintiffs’ daughter, A.B., as the
plaintiffs have expressly consented to the release of these records. Thus, in
accordance with the standards set forth below, we will order the docket entries

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unsealed, but sustain some of the redactions MHS proposes to protect the privacy
interests of nonparties.
A. Standards Governing an Intervenor’s Access to Sealed Court
Documents
The Court of Appeals has recently articulated the different standards
governing challenges to the confidentiality of documents. On this score, the Court
stated:
We apply three distinct standards when considering various challenges
to the confidentiality of documents. We apply the factors articulated in
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783–92 (3d Cir. 1994),
when we review orders preserving the confidentiality of discovery
materials pursuant to Federal Rule of Civil Procedure 26. But we apply
the more rigorous common law right of access when discovery
materials are filed as court documents. In addition to recognizing fewer
reasons to justify the sealing of court records, the public right of
access—unlike a Rule 26 inquiry—begins with a presumption in favor
of public access. Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d
183, 192–93 (3d Cir. 2001). Finally, the First Amendment right of
public access attaches to, inter alia, civil trials. Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984).
In re Avandia Marketing, Sales Practices and Products Liability Litigation, 924 F.3d
662, 670 (3d Cir. 2019). Thus, the standard we apply, and the scrutiny various
records receive, depends on the type of document that the third party is seeking.
(1) Discovery Materials and Motions
Discovery materials can be shielded by the entry of a protective order pursuant
to Rule 26 of the Federal Rules of Civil Procedure. In order to obtain a protective
order, a party must establish “good cause” for the order, which requires “a showing
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that disclosure will work a clearly defined and serious injury to the party seeking [to
prevent] disclosure. The injury must be shown with specificity.” Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). “Broad allegations of harm,
unsubstantiated by specific examples or articulated reasoning” will not establish
good cause. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
In determining whether a party has established good cause for a protective order,
courts must consider a number of factors. In Pansy v. Borough of Stroudsburg, 23
F.3d 772 (3d Cir. 1994), the Third Circuit set forth a nonexhaustive list of factors to
be considered:
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
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. The Pansy Court noted that in considering these factors, the
district court’s analysis “should always reflect a balancing of private versus public
interests.” Pansy, 23 F.3d at 789.

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This analysis also applies to a situation in which a nonparty intervenor seeks
to modify an existing confidentiality order and inspect documents filed under seal.
Leucadia, 998 F.2d at 166. The party seeking to keep the documents confidential
must make a showing in accordance with the criteria identified by the court in Pansy
that good cause exists for continued protection of the documents. Id.
(2) Common Law Right of Access
Additionally, it is well-settled that there is a longstanding common law public
right of access to judicial proceedings, both criminal and civil, which includes the
right to “inspect and copy public records and documents, including judicial records
and documents.” Leucadia, 998 F.2d at 161 (internal citations and quotations
omitted). This right “antedates the Constitution,” Bank of America Nat’l Trust and
Savings Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339 (3d Cir. 1986), and
“promotes public confidence in the judicial system by enhancing testimonial
trustworthiness and the quality of justice dispensed by the court.” Littlejohn, 851
F.2d at 678. The right of the public to inspect court documents is dependent upon
whether such documents are “judicial records,” meaning that the record is “a
document that ‘has been filed with the court . . . or otherwise somehow incorporated
or integrated into a district court’s adjudicatory proceedings.” Avandia, 924 F.3d at
672 (quoting In re Cendant Corp., 260 F.3d at 192) (internal quotations omitted).

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Once a document is determined to be a “judicial record,” a presumption of
public access applies. In re Cendant Corp., 260 F.3d at 192-93. On this score, the
Third Circuit has held that this presumptive right of access applies to “pretrial
motions of a nondiscovery nature, whether preliminary or dispositive, and the
material filed in connection therewith.” Id. However, it does not apply to discovery
motions and their supporting documents. Leucadia, 998 F.2d at 165. Moreover, the
presumption may be rebutted if the party seeking protection can show “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.” Avandia, 924
F.3d at 672 (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (internal
quotations omitted)).
(3) First Amendment
Finally, there is a recognized constitutional right of access to civil proceedings
under the First Amendment, including documents involved in those proceedings.
Publicker Indus., 733 F.2d at 1071. In determining whether the right of access
applies, courts apply a two-prong test, asking: (1) “whether the place and process
have historically been open to the press” (the “experience” prong), and (2) “whether
public access plays a significant role in the functioning of the particular process in
question” (the “logic” prong). N. Jersey Media Group Inc. v. United States, 836 F.3d
421, 429 (3d Cir. 2016) (quoting PG Pub. Co. v. Aichele, 705 F.3d 91, 103 (3d Cir.
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2013) (internal quotations omitted)). If both prongs are met, the First Amendment
right of access presumptively applies, and this presumption will only be rebutted by
a showing of “an overriding interest [in excluding the public] based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that
interest.” Avandia, 924 F.3d at 673 (quoting Publicker Indus., 733 F.2d at 1073)).
B. The Documents The Inquirer Seeks Shall Be Unsealed Subject to
Minor Redactions Protecting Nonparties to this Litigation.
The documents that The Inquirer seeks, and that MHS contends should be
continuously sealed or alternatively redacted, fall under the category of “judicial
records” subject to the common law right of access. (Docs. 294-96, 298-99). These
documents relate to motions for summary judgment, and the Third Circuit has held
that the presumptive right of access applies to “pretrial motions of a nondiscovery
nature, whether preliminary or dispositive, and the material filed in connection
therewith.” In re Cendant Corp., 260 F.3d at 192-93; see also Avandia, 924 F.3d at
672; Leucadia, 998 F.2d at 164.2 Thus, there is a presumption that these documents

MHS vehemently protests that the plaintiffs’ motion for summary judgment is not
a proper motion for summary judgment, and thus the supporting papers would not
fall under the category of “judicial records” subject to the public right of access.
However, we note that merits of the plaintiffs’ motion are not before us, and thus,
we will not decide for the purposes of this motion whether or not the motion for
summary judgment is a “proper” motion for summary judgment. Rather, given that
these documents were filed in conjunction with the plaintiffs’ filing for summary
judgment, we will treat these documents as “judicial records” subject to the public
right of access.
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should be unsealed unless the defendants show that public disclosure of these
documents “will work a clearly defined and serious injury to the party seeking
closure.” Avandia, 924 F.3d at 672 (internal citations omitted). “Specifically, th[e]
party [seeking protection] must demonstrate that the material contains the type of
information that courts will protect and that there is good cause for continued
application of an existing order.” In re Gabapentin Patent Litigation, 312 F.Supp.2d
653, 664 (D.N.J. 2004) (citing Publicker, 733 F.2d at 1070-71).
Judged against this analytical paradigm we turn to a consideration of the
specific pleadings at issue in this motion.
(1) Documents 298 and 299
Documents 298 and 299 contain the defendants’ brief in support of its motion
for summary judgment, supporting exhibits, and its statement of material facts.
Much like its opposition to The Inquirer’s first motion to unseal in this case, MHS
contends that these documents contain information that was given pursuant to a
Qualified Protective Order entered in this case, and that the release of this
information would harm not only A.B., whose school and medical records are
contained in these documents, but the medical providers that disclosed this
information. Additionally, MHS seeks to protect the identifying information of its
personnel and other nonparties, whose deposition transcripts are contained in these
documents.
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(a) Document 298 and Exhibits
With respect to the documents that contain A.B.’s medical records and
testimony from third party providers who treated A.B. (Doc. 298, Exs. 14-15, 19,
47-50, and 63-65), MHS contends that the medical providers who disclosed this
information will be harmed if these records are unsealed because they have an
obligation under the Health Insurance Portability and Accountability Act
(“HIPAA”) to keep these records confidential. As we have outlined in our
memorandum granting The Inquirer’s first motion to unseal, HIPAA’s general
privacy rule “places strict limitations on the ability of health care providers to release
a patient’s medical records . . . without the consent of the patient.” Rodriguez v. City
of New Brunswick, 2017 WL 5598217, at *6 (D.N.J. Nov. 21, 2017). While it is
undisputed that these records constitute protected health information under HIPAA,
the statute provides that:
A covered entity may disclose protected health information in the
course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative
tribunal, provided that the covered entity discloses only
the protected health information expressly authorized by
such order; or
(ii) In response to a subpoena, discovery request, or other
lawful process, that is not accompanied by an order of a
court or administrative tribunal, if:
(A) The covered entity receives satisfactory
assurance ... from the party seeking the
information that reasonable efforts have been
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made by such party to ensure that the
individual who is the subject of the protected
health information that has been requested
has been given notice of the request; or
(B) The covered entity receives satisfactory
assurance ... from the party seeking the
information that reasonable efforts have been
made by such party to secure a qualified
protective order that meets the requirements
of paragraph (e)(1)(v) of this section.
45 C.F.R. § 164.512(e)(1). Entities covered by HIPPA include “(1) a health plan, (2)
a health care clearinghouse, and (3) a health care provider.” 45 C.F.R. § 160.102.
Here, the third-party providers that disclosed A.B.’s treatment records are
undisputedly medical providers within the meaning of the statute. Further, these
providers disclosed A.B.’s medical records in compliance with this court’s orders,
which issued Qualified Protective Orders to protect this information. (Docs. 84, 106,
108). Thus, the medical providers in this case complied with HIPAA when they
provided this information pursuant to the court’s orders, and there would be no cause
of action against these providers for a violation of the statute. This would be so even
if A.B.’s parents, the plaintiffs in this case, had not consented to the release of A.B.’s
medical records. (Doc. 308-1). Moreover, MHS provides no legal authority for the
proposition that these providers would somehow be liable under HIPAA should the
court order the unsealing of these documents. Accordingly, the argument that these
providers would be harmed by the unsealing of these documents is unavailing and
does not meet the showing required by law to justify continued sealing; namely,
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“that disclosure will work a clearly defined and serious injury to the party seeking
closure.” Avandia, 924 F.3d at 672 (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551
(3d Cir. 1994) (internal quotations omitted))(emphasis added).
MHS also argues that A.B.’s interests would be harmed by the release of her
medical records. However, the plaintiffs in this case, A.B.’s parents, have expressly
consented to the release of her medical records from these providers. (Doc. 308-1).
Indeed, both plaintiffs have signed a “HIPAA Privacy Authorization Form,” which
provides that the plaintiffs, as A.B.’s personal representatives, have authorized the
release of A.B.’s records, whether in the custody of the school or in the custody of
third-party providers, to the fullest extent allowable. (Id., at 2, 4). Thus, MHS’s
concern that A.B.’s interests would be harmed by the unsealing of these records is
unpersuasive given the explicit waiver of these privacy interests by A.B.’s
representatives.
Finally, MHS asserts that the unsealing of these documents would harm the
interests of third parties, particularly MHS personnel or medical providers who were
involved with A.B.’s treatment or with decisions about her attendance at MHS.
However, we believe that redacting the names of these MHS personnel, rather than
allowing the wholesale sealing of these documents, will provide sufficient protection
of their interests. Accordingly, because we find that MHS has not shown good cause

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for the continued sealing of these documents, we will order these documents
unsealed subject to narrowly tailored redactions to protect these third-party interests.
With respect to the exhibits that contain information regarding A.B.’s school
records (Doc. 298, Exs. 1, 8, 11-13, and 61-62), we note again that A.B.’s parents
have expressly consented to the release of these records. (Doc. 308-1). Thus, as we
explained in our memorandum granting The Inquirer’s first motion to unseal, even
if MHS was considered a “covered entity” under HIPAA, releasing A.B.’s records
upon the express consent of her parents would not violate the statute and subject
MHS to liability. Moreover, to the extent that MHS asserts that A.B.’s school records
are protected from disclosure under the Family Education and Privacy Rights Act
(“FERPA”), A.B.’s privacy interests under FERPA lie with her parents until the age
of 18. See 34 C.F.R. §§ 99.3-99.5. Accordingly, the plaintiffs’ express consent to
the release of these records would expel any concerns that MHS has as it relates to
disclosure of school records under FERPA, and thus, we will order the unsealing of
these documents.
Finally, we recognize that there are some third-party privacy interests at stake
with the unsealing of these documents, such as the names and personal information
of the third-party providers, MHS personnel, and other individuals. Thus, as with
The Inquirer’s first motion to unseal, we will order these documents unsealed subject
to limited redactions to protect these third-party privacy interests. To this end, MHS
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has proposed redactions throughout the exhibits attached to its supporting brief (Doc.
298, 298-1—298-5). However, our review of these redactions reveals that they are
somewhat overbroad, seeking to protect more than just the names and personal
identifying information of nonparties. Accordingly, we will direct the defendants to
provide renewed redactions to these documents, specifically tailoring the redactions
to include only the names, personal information (i.e. addresses, family information),
and any medical treatment information of nonparties.
We reach this conclusion while noting that this is a somewhat closer question
since it may be possible through further investigation to tentatively identify some of
these third parties by reference to employment histories and job title. The scope of
the redactions proposed by the MHS defendants, however, is in our judgment so
sweeping, that we cannot justify these additional redactions in light of the
presumption of public access which applies here. In re Cendant Corp., 260 F.3d at
192-93. A more narrowly tailored set of redactions supported by a more robust
showing of need would be necessary here to justify the continued sealing of this
information.
(b) Document 299
MHS also contends that its statement of material facts should be continuously
sealed, as it contains information regarding A.B.’s medical and school records, as
well as the testimony of third-party providers. In the alternative, MHS has proposed
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redactions to Document 299 to protect this information and the information of
nonparties to this case. However, we find that the redactions proposed to shield
A.B.’s medical information and school records are inappropriate. As we have
explained, the plaintiffs have expressly consented to the release of this information,
and thus, there is no need to redact this information from Document 299.3 With
respect to the redactions concerning third-party information, a review of these
redactions indicates that MHS has narrowly tailored its redactions in this regard.
Accordingly, we will order Document 299 unsealed, subject only to the redactions
proposed to protect nonparties names and information.4
(2) Documents 294, 295, and 296
Finally, The Inquirer requests that Documents 294, 295, and 296 be unsealed.
These documents consist of the plaintiffs’ brief in support of their motion for partial
summary judgment and supporting exhibits, which include some of A.B.’s medical
records and several deposition transcripts. Unlike the defendants’ summary
judgment papers, these documents currently contain no redactions.
On this score, as we have explained with respect to Documents 298 and 299,
to the extent Documents 295 and 296 contain A.B.’s medical or school records, the
defendants have not shown good cause for the continued sealing of these documents.

MHS’s proposed redactions to A.B.’s school and medical information are
redacted in yellow, green, and blue.
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The redactions we are sustaining are redacted in orange.
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Rather, the plaintiffs’ have expressly consented to the release of these records.
Accordingly, these documents will be unsealed. (Docs. 295-1, 295-2, 295-4; Doc.
296, at 97-100; Doc. 296-1, at 1-13, 56). Additionally, the deposition transcripts
contained in the plaintiffs’ summary judgment papers will be unsealed, subject to
the redaction of the names of the individuals deposed, along with the names and
personal information of any nonparties within the transcripts. (Docs. 295, 295-3;
Doc. 296, at 2-96; Doc 296-1, at 14-54, 63-100; Doc. 296-2, at 1-34).
Finally, with respect to the plaintiffs’ brief in support of their motion and
supporting statement of material facts (Doc. 294), we will unseal this document
subject to the limited redaction of third-party identifying information. On this score,
because these documents have not yet been redacted, we direct counsel to consult
and confer with one another to produce copies of the documents to be unsealed with
appropriate, narrowly tailored redactions.
In sum, we recognize that there are third-party privacy interests at stake within
these documents. However, much of the information contained in these documents
has been expressly released by the plaintiffs, A.B.’s parents, and will not be
continuously sealed or subject to redactions by MHS. Accordingly, these documents
will be unsealed and shall be redacted in the limited manner we have described
above.
An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al.,
Plaintiffs,
v.
THE MILTON HERSHEY SCHOOL
AND SCHOOL TRUST, et al.,
Defendants.

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Civil No. 1:16-CV-2145

(Judge Jones)
(Magistrate Judge Carlson)

ORDER

Accordingly, for the reasons set forth in the accompanying Memorandum
Opinion, IT IS HEREBY ORDERED THAT The Inquirer’s motion to unseal
judicial records (Doc. 303) is GRANTED. IT IS ORDERED THAT:
1. Documents 294, 295, 296, 298, and 299 will be unsealed;
2. To the extent these documents and exhibits contain information that
concerns the privacy interests of nonparties to this litigation, these
documents shall be unsealed subject to the minimal redactions we have
outlined in the accompanying memorandum to protect the interests of third
parties;
3. Counsel shall consult and confer regarding the redactions to be made
to these documents prior to the documents being unsealed and shall
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provide the court with appropriate, narrowly tailored redactions to
these documents within 30 days from the date of this order.
4. We recognize the significance and gravity of these judgments for
all parties. Therefore, IT IS FURTHER ORDERED as follows:
Implementation of this order will be STAYED for 10 days in order
to allow the litigants the opportunity to review the court’s order
and seeks further judicial review of this order, if they deem it
appropriate. Furthermore, with respect to redacted records, if the
parties do not seek further review of this decision, they shall tender
copies of stipulated, redacted records to the clerk for release on the
public docket within 30 days from the date of this order.
So ordered this 6th day of March 2020.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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