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Doe v. Allentown School Dist.

December 2, 2008


The opinion of the court was delivered by: Arnold C. Rapoport United States Magistrate Judge



Presently pending before me in this civil rights action is a motion by Defendant F.H. for a protective order pursuant to Fed. R. Civ. P. 26(c).*fn1 F.H. is a minor who allegedly sexually assaulted the minor Plaintiffs inside Allentown Central Elementary School ("CES"). The motion seeks to preclude Plaintiffs' counsel from disclosing the contents of F.H.'s records received pursuant to a subpoena issued to the Lehigh County Office of Child and Youth Services ("OCYS"), and prohibiting discovery by any party into the subject matters referred to in the OCYS records. The motion also seeks to bar Plaintiffs from receiving material responsive to another subpoena issued to the Lehigh County Court of Common Pleas for F.H.'s juvenile court records. For the reasons that follow, I deny the motion for a protective order.

Preliminarily, it is undisputed that Plaintiffs obtained the OCYS documents that are the subject of this motion by circumventing the rules governing discovery in civil actions. At oral argument, it was conceded by all parties that, after the Complaint in this action was filed and served, and without conferring with or notifying any of the other attorneys representing the defendants as required by Fed. R. Civ. P. 26(f), an associate attorney, then employed with the law firm that formerly represented the Plaintiffs, and who is now employed by Plaintiffs' current law firm, issued a subpoena to the Lehigh County Juvenile Court requesting copies of F.H.'s court file.*fn2

Rather than send the documents to the law firm, Common Pleas Court Judge William E. Ford sent the records to Judge Golden.*fn3

Plaintiffs' counsel thereafter sent Judge Golden a letter again seeking copies of the documents. Judge Golden appointed Marc S. Fisher, Esquire, as counsel for Defendant F.H., who was up to that time unrepresented, and sent Fisher a copy of the court documents so that he could litigate any interest F.H. had in keeping the documents from being disclosed. Several days later, the same associate issued a second subpoena, this time to OCYS, to get all records pertaining to F.H. from 1992 forward. That subpoena was also issued in violation of the meet and confer requirements contained in the discovery rules. OCYS responded to the subpoena by sending a redacted set of the documents to Plaintiffs' counsel.

Thus, Plaintiffs have in their possession redacted OCYS documents that have not been presented to the Allentown School District defendants or to the Lehigh Valley Hospital defendants. F.H. seeks to prevent further disclosure of the OCYS documents to anyone, direct Plaintiffs to disclose the identities of all persons with whom they have shared the documents, bar any party from conducting discovery or inquiring into the OCYS documents, and direct that all parties and counsel be prohibited from disclosing the identity of F.H. F.H. also seeks to preclude any party from accessing the Juvenile Court records which, though subpoenaed, Plaintiffs have not actually seen.


I note, initially, that F.H. has made no claim of privilege under Fed. R. Civ. P. 26(a)(5) or Fed. R. Evid. 501 regarding the OCYS documents or the Juvenile Court documents. Accordingly, any relief F.H. may receive must be under Rule 26(c). Under that Rule, a court "for good cause shown" may, in certain circumstances, enter a protective order in the context of discovery. In Pansy v. Borough of Stroudsburg, 23 F. 3d 772, 783-84 (3d Cir. 1994), the United States Court of Appeals set out the standard for my consideration of the pending motion. The Court explained that "it is well-established" that good cause must exist to obtain a protective order over discovery materials. Id. at 786. While the facts in Pansy involved a confidentiality order issued to protect a settlement agreement from public knowledge, the Court indicated that the good cause analysis of Rule 26(c) applied "whether an order of confidentiality is granted at the discovery stage or any other stage of litigation." Id.

Under Pansy, there is good cause when a party shows that disclosure will result in a clearly defined, specific and serious injury, but broad allegations of harm are not sufficient to establish good cause. Id. The party seeking protection has the burden of showing that there is good cause for it. Id. at 786-87; Pearson v. Miller, 211 F.3d 57, 72 -73 (3d Cir. 2000) (holding that, to make a showing of good cause, the party seeking confidentiality has the burden of showing the injury "with specificity"). I must determine whether there is good cause by balancing the interests of the public and the parties and must explain my reasoning behind my balancing conclusion. Pansy at 789.

Pansy discussed several balancing factors while noting that those factors were not exhaustive. Id. In particular, in Pansy and in a later decision, Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995), the Court listed seven factors that I should consider in determining whether to grant the protective order. Those factors are:

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 ...

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