Wartluft v. Milton Hershey School And School Trust

          Jones Judge

          MEMORANDUM OPINION ^[1]

          Martin C. Carlson United States Magistrate Judge

         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. (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 the Milton Hershey School 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 the Milton Hershey School 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.)

         On occasion, however, other collateral disputes threaten to overtake and displace the resolution of the merits of these claims. As we have observed in the past:

While the death of this child, and questions of the defendants' potential culpability for this death, should be the issues which lie at the heart of this lawsuit, for some of the protagonists the lawsuit seems to be but a small part of a longstanding and intractable conflict between the Milton Hershey School, an advocacy group, Protect Hershey's Children, (PHC), and PHC's President, an attorney named Ric Fouad. The conflict between Fouad, PHC and Hershey spans many years and is marked by competing accusations, mutual recriminations and shared, profound, and unshakeable suspicions. For its part, the Milton Hershey School apparently views PHC and Fouad, as unscrupulous provocateurs, who disseminate baseless allegations against the Milton Hershey School, and then instigate grieving families to file meritless lawsuits in pursuit of their ideological goals. PHC and Fouad, in turn, identify themselves as public spirited whistle-blowers, who believe that they are the victims of a campaign of harassment, oppression and unwarranted calumny orchestrated by a multi-billion dollar corporate monolith.

Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 1:16-CV-2145, 2018 WL 3995697, at *1 (M.D. Pa. Aug. 21, 2018).

         We now are called upon to resolve one such collateral dispute which has assumed vital importance to the parties. This case now comes before us on a motion to intervene filed by a third party, The Philadelphia Inquirer, PBC (“The Inquirer”), which seeks to intervene in the instant case for the limited purpose of challenging the sealing of certain court records. These documents include a motion for summary judgment and supporting briefs and exhibits (Docs. 160, 161), the plaintiffs' opposition to that motion (Docs. 173, 174, 176), documents concerning discovery disputes (Docs. 127, 135, 196), and a document regarding a belated exhibit supporting the plaintiff's opposition to summary judgment (Doc. 203-1).

         For its part, the Inquirer insists that it is motivated by the public's interest in access to information concerning the activities of this billion-dollar trust, contends that the public has a right of access to these documents, and asserts that the defendants have not made the requisite individualized showing of good cause necessary for these documents to remain sealed. On the other hand, the defendants place this motion in the broader context of Milton Hershey's internecine conflict with its antagonist, Ric Fouad. Drawing a series of connections between Fouad, the Inquirer, and one of its writers, Milton Hershey invites us to view this motion through a dark prism and see the motion as yet another ideologically driven effort to cast the Hershey Trust in an unfair light. The defendants further contend that this information must remain sealed given the private nature of the documents, which include medical and employment information of the deceased and non-parties, as well as records marked “confidential” pursuant to the Protective Order entered by this court. Notably, the defendants have advanced these arguments in a broadly-framed fashion without an individualized consideration of each sealed record.

         While each party would invite us to ascribe dark motives to the opposing party, we will decline all of these invitations, while observing that, in our view, the intervenors have sufficiently shown that the subject matter of this litigation is a matter of public interest, thus triggering common law and constitutional rights of access. Further, after consideration, we believe that Documents 127, 135, 160, 161, 173, 174, 176, and 196 should be unsealed, as the defendants have not shown good cause for the documents to remain sealed and have not overcome the presumption of public right of access to many of these documents. However, the defendants should be permitted to make redactions to these documents to protect the privacy interests of nonparties, or alternatively, make a particularized showing of good cause to justify the continued sealing of these documents and override the presumption of public access. Additionally, in our view, there is good cause for Document 203-1 to remain sealed. Thus, for the reasons set forth below, The Inquirer's motion be granted in part and denied in part.

         II. Discussion

         A. The Inquirer Will Be Permitted to Intervene for the Limited Purpose of Challenging the Sealed Records.

         The Inquirer has moved to intervene in this case under Federal Rule of Civil Procedure 24 for the limited purpose of unsealing certain records which it claims the public is entitled to, given the allegations against MHS in this case. On this score, it is well-settled that under Rule 24,

“On timely motion, the court may permit anyone to intervene who: ... has a claim or defense that shares with the main action a common question of law or fact....” Fed.R.Civ.P. 24(b)(1) (emphasis added). Rule 24(b) further provides that, when a court exercises its discretion, “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed.R.Civ.P. 24(b)(3). In exercising its discretion, the court should consider various factors, including whether the proposed intervenors will add anything to the litigation and whether the proposed intervenors' interests are already adequately represented in the litigation. Hoots, 672 F.2d at 1136.

Benjamin v. Dep't of Pub. Welfare of Cmwlth., 267 F.R.D. 456, 464-65 (M.D. Pa. 2010), aff'd sub nom. Benjamin v. Dep't of Pub. Welfare of Pa., 432 Fed.Appx. 94 (3d Cir. 2011).

         As the text of Rule 24(b) implies, decisions regarding requests for permissive intervention rest in the sound discretion of the court and will not be disturbed absent an abuse of that discretion. Hoots v. Com. of Pa., 672 F.2d 1133, 1135 (3d Cir. 1982). By its terms Rule 24(b) provides that: “On timely motion, the court may permit anyone to intervene who: ... has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). Thus, Rule 24(b), “lists three requirements for permissive intervention: (1) ‘timely application'; (2) ‘a question of law or fact in common' between the ‘applicant's claim or defense and the main action'; (3) a determination that the intervention will not ‘unduly delay or prejudice the adjudication of the rights of the original parties.' ” United States v. Columbia Pictures Indus., Inc., 88 F.R.D. 186, 189 (S.D.N.Y. 1980). Moreover, it is well-settled that a third party may be permitted to intervene for the limited purpose of unsealing records or challenging an existing protective order. See United States v. Wecht, 484 F.3d 194, 199 n.4 (3d Cir. 2007); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 167 (3d Cir. 1993); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 657 (3d Cir. 1991); Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d Cir. 1988).

         Here, the defendants challenge The Inquirer's motion to intervene, arguing that it is not timely filed. They contend that The Inquirer has been following this case since its inception, and that it knew of the sealing of these records since at least 2018 but did not move to intervene until June 2019. However, the Third Circuit has held that “[t]he mere passage of time . . . does not render an application untimely.” Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir. 1995) (citations omitted). Rather, a court must look at the totality of the circumstances, considering “(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay.” Id. (citing In re Fine Paper Antitrust Litigation, 695 F.2d 494, 500 (3d Cir. 1982)).

         In this regard, the defendants do not argue that there will be any excessive delay if The Inquirer is permitted to intervene. Indeed, whether these records remain sealed is a collateral matter that should not result in any delay in the litigation of the underlying merits of this case.^[2] Rather, the defendants contend that they will be prejudiced if the records The Inquirer seeks to have unsealed are in fact unsealed, given the content of those records. However, this argument is more appropriately tailored to the question of whether the records should be unsealed, and whether information should be redacted from specific documents. Thus contention, therefore, does not directly speak to the question of whether The Inquirer may intervene to challenge the sealing of these records. Accordingly, when we consider the totality of the circumstances, we find that there would be no undue delay as a result of permitting The Inquirer to intervene. We also find that the Inquirer's motion to intervene is not so delinquent that it should be denied out of hand. Finally, while we recognize Milton Hershey's potential concern regarding prejudice that may result from specific disclosures, we believe that this concern can and should be addressed through an individualized assessment of specific documents, rather than through the wholesale denial of this motion to intervene. Accordingly, the motion to intervene will be granted.

         B. Subject to Affording Milton Hershey an Opportunity to Make Appropriate Redactions or Make an Individualized Showing of Prejudice With Respect to Specific Records, All but One of the Documents Requested by The Inquirer Should Be Unsealed.

         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. Recognizing that Milton Hershey has not addressed in a specific and particularized fashion the prejudice impact of specific documents, we also conclude that the defendants should be afforded this opportunity. However, in our view, there is one docket entry that should remain sealed. Accordingly, as described in greater detail below, we will order that the motion to unseal these records be granted in part and denied in part.^[3]

         (1) 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 ...