United States District Court, M.D. Pennsylvania
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
...