Doe v. McDonogh School, Incorporated

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENNIS WEDEKIND, JR.,
Plaintiff
v.
MCDONOGH SCHOOL, INC.,
Defendant.
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Civil Action No. SAG-24-1065
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LEVI B. MILLER, IV,
Plaintiff
v.
MCDONOGH SCHOOL, INC.,
Defendant.
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Civil Action No. SAG-25-0795
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JOHN DOE,
Plaintiff
v.
MCDONOGH SCHOOL, INC.,
Defendant.
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Civil Action No. SAG-25-01551
____________________________________ 	*
JOHN DOE,
Plaintiff
v.
MCDONOGH SCHOOL, INC.,
Defendant.
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Civil Action No. SAG-25-01552
MEMORANDUM OPINION
These four related cases involve allegations of sexual abuse by faculty at the McDonogh
School many decades ago. On January 9, 2026, following a discovery referral from this Court,
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United States Magistrate Judge Erin Aslan issued an opinion resolving various discovery-related
disputes. See, e.g., Miller v. McDonogh School, Inc., SAG-25-00795, ECF 67.1 McDonogh filed
a Notice of Objection to Judge Aslan’s ruling, citing Rule 72(a). ECF 75; ECF 76 (redacted
memorandum of law in support); ECF 77 (unredacted memorandum of law in support). Plaintiffs
opposed the objection, ECF 80, and McDonogh filed a reply, ECF 86 (unredacted), ECF 87
(redacted). This Court has reviewed all of the filings and the transcript of the hearing held before
Judge Aslan, ECF 66. This Court finds that no further hearing is necessary. See Loc. R. 105.6 (D.
Md. 2025). For the reasons stated herein, this Court generally finds no basis to modify Judge
Aslan’s opinion and order, with the exception of permitting some additional redactions to be made
to the publicly filed exhibits and documents.2
In its objection, McDonogh challenges two of Judge Aslan’s rulings. First, Judge Aslan
denied, for the most part, McDonogh’s motion to seal certain documents filed in connection with
these discovery disputes: an investigative report prepared in 2016 by an investigation and security
services firm, T&M USA, LLC (“T&M”), McDonogh’s supplemental answers to interrogatories,
the contract between T&M and McDonogh’s then-law firm, Venable, LLP (“the T&M/Venable
1 Judge Aslan’s opinion and order, and each of the motions and filings discussed herein, were filed
in each of these four related cases. For ease of reference, in this Memorandum Opinion, this Court
will provide citations only to the filings in the lead cases, case number SAG-25-00795. The
accompanying order will grant the identical motions in each of the four related cases.
2 McDonogh also filed, in each of the related cases, an “Emergency Motion to Stay Production of
Documents Ordered Produced in Magistrate Judge Aslan’s Memorandum Opinion and Order,”
ECF 72 (redacted); ECF 73 (unredacted), seeking to stay production of the disputed discovery
until this Court’s adjudication of the objection. This Court is somewhat perplexed by the motion
(and why it would be emergent) given that Judge Aslan did not specify a deadline for the
production. Nevertheless, the motion has been mooted by this ruling and will be denied as moot
in each of the four related cases.
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Agreement”), and unredacted memoranda of law that reference those exhibits.3 ECF 67. Second,
Judge Aslan ruled that interview notes taken by a T&M project assistant during the investigation
constituted fact work product subject to production in discovery. Id. Because McDonogh timely
filed its objections to Judge Aslan’s order, this Court must consider them “and modify or set aside
any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). The
magistrate judge’s factual findings are reviewed for clear error, which occurs when the court is
“left with the definite and firm conviction that a mistake has been committed.” Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985). The magistrate judge’s legal conclusions are overturned
if “contrary to law,” which occurs where there is an absence of legal authority to support the
conclusions. See Stone v. Trump, 356 F. Supp. 3d 505, 511 (D. Md. 2018).
A. 	Sealing Issue
Judge Aslan essentially made alternative rulings with respect to whether the T&M
investigative 	report, 	McDonogh’s 	supplemental 	interrogatory 	answers, 	the 	T&M/Venable
Agreement, and any memoranda of law referring to those exhibits should be sealed from public
view. First, after examining “the substance, purpose, and role of the challenged filings,” she
determined that a common law right of access applies to the filings because they are “judicial
documents.” ECF 67. Under that standard, the public would enjoy a presumption that they should
have access to the exhibits, subject to balancing of their interests with interests mitigating in favor
of sealing. Second, Judge Aslan found that even if the presumption did not apply and the
documents merely were subject to a “good cause” standard for sealing, McDonogh and TM had
not established good cause to seal the records in their entireties but had established good cause to
3 Judge Aslan’s opinion and order permitted redaction of T&M’s hourly rates and footnotes four
and five of the T&M report. This Court affirms those redactions and specifies some additional
permissible redactions herein.
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redact certain materials. After review, this Court will overrule McDonogh’s objections on both
grounds, with the exception of some additional categories for redaction.
The parties agree that the Supreme Court and the Fourth Circuit have not expressly
addressed 	whether 	exhibits 	attached 	to 	non-dispositive 	discovery 	motions 	are 	“judicial
documents” subject to a common law right of public access. There is therefore no binding
precedent. District courts, including those within this circuit, have reached varying conclusions on
the question, as recognized in Judge Aslan’s detailed survey of myriad cases decided within this
circuit. See ECF 67. The divergent results are unsurprising because there are compelling policy
arguments advanced on both sides. One side focuses on the generally public nature of court
proceedings and the need for transparency to legitimize court rulings; the other focuses on the
desire to facilitate the parties’ expeditious pursuit of a generally non-public discovery process that
is often far broader than the issues ultimately relevant to a court’s disposition of a legal claim.
This Court is therefore tasked with predicting how the Fourth Circuit would evaluate this
complex issue in order to determine whether Judge Aslan’s ruling was “contrary to law.” Judge
Aslan notes that the Fourth Circuit has “cautioned that the ‘right of access in any given case may
vary depending on the nature of the case and the specific item under review.” Id. at 14 (quoting
Va. Dep’t of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004)). And she suggests
that the varying conclusions reached by the district courts considering these issues suggest that the
Fourth Circuit would adopt a fact-specific analysis instead of the blanket rule about discovery
motions espoused by its sister circuits. She cites the Fourth Circuit’s instruction that “documents
filed with the court are ‘judicial records’ if they play a role in the adjudicative process, or
adjudicate substantive rights.” In re Application of the United States for an Order Pursuant to 18
U.S.C. 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). She concludes that the exhibits in dispute
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“have most certainly played a role in the adjudication of the pending discovery motions” and have
therefore played a role in the adjudicative process. ECF 67 at 19.
In its objection, McDonogh argues that four circuit courts have held or reasoned that the
common law presumption of right of public access to documents filed in court does not extend to
exhibits attached to discovery motions. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th
Cir. 2010) (reiterating that “‘good cause’ is also the proper standard when a party seeks access to
previously sealed discovery attached to a nondispositive motion” because “the public’s interest in
accessing dispositive materials does ‘not apply with equal force’ to nondispositive materials”)
(first quoting Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir.
2002); then quoting Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006));
Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001) (“The better
rule is that material filed with discovery motions is not subject to the common-law right of access,
whereas discovery material filed in connection with pretrial motions that require judicial resolution
of the merits is subject to the common-law right, and we so hold.”); Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993) (holding that “there is a presumptive right
to public access to all material filed in connection with nondiscovery pretrial motions, whether
these motions are case dispositive or not, but no such right as to discovery motions and their
supporting documents”); Anderson v. Cryovac, Inc., 805 F.2d 1, 11 (1st Cir. 1986) (“We think it
is clear and hold that there is no right of public access to documents considered in civil discovery
motions.”). McDonogh also cites a Seventh Circuit case, Bond v. Utreras, 585 F.3d 1061, 1075
n.8 (7th Cir. 2009), which considered the right of public access to unfiled discovery materials, but
cited Chicago Tribune approvingly in a footnote. No circuit courts have held to the contrary or
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have expressly extended the common-law right of public access to exhibits attached to discovery
motions.
In the absence of any binding authority, this Court reverts to the standard of review
applicable to a magistrate judge’s decision under Rule 72(a). “It is not the function of objections
to discovery rulings to allow wholesale relitigation of issues resolved by the magistrate judge.”
Buchanan v. Consol. Stores Corp., 206 F.R.D. 123, 124 (D. Md. 2002). Judge Aslan’s decision
that the exhibits are judicial documents subject to the public right of access is not “contrary to
law.” As to a question devoid of binding authority, governing statutes, or rules of procedure, it
adopts a line of reasoning and approach that has been employed by other courts in other cases.
McDonogh may ultimately be correct that the Fourth Circuit will align itself with the other circuits
despite cases in which it has made pronouncements highlighting the importance of public access
to filings in judicial proceedings. But because Judge Aslan’s labeling of these documents as
“judicial documents” is not “contrary to law” as it presently exists, this Court will not modify her
ruling.
Judge Aslan then proceeded to apply the standard governing sealing of “judicial
documents” – a presumption that those documents should remain available to the public. Balancing
the public interest against the concerns cited by McDonogh, she allowed two categories of
redactions: to T&M’s hourly rates and to footnotes on pages 4 and 5 of the T&M report that
contained privileged material. Considering McDonough’s objections and its expression of
countervailing concerns, this Court concludes that, at this early discovery stage of the case, some
additional redactions are warranted to ensure protection of the privacy interests of non-party
victims and persons who aided in T&M’s investigation. This Court recognizes that, as to the
victims, the level of detail in the T&M report, such as the years of a student’s attendance,
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graduation, or incidents of abuse, might allow members of the public to deduce a particular
victim’s identity. Additionally, public disclosure of the names of the persons who agreed to be
interviewed by T&M might make similarly situated persons less likely to participate in future such
investigations for fear of similar publicity. Redacting the years of a victim’s or witness’s
attendance at or graduation from McDonogh, the years of alleged abusive acts, and the names of
witnesses who spoke with T&M would eliminate any risks to the privacy interests of those non-
party individuals. With those additional redactions, this Court finds that the documents should be
produced under the relevant standard, because identification of the already anonymized victims
will be thwarted and the cooperating witness names will be removed. McDonogh’s additional
objection on the grounds that the report might be embarrassing to the school or cause reputational
harm is not persuasive. The school has already been sued publicly in this case and has conceded
in public statements to its community that abuse occurred on its campus in the relevant time frame.
This Court also finds no clear error in Judge Aslan’s factual conclusion that there is no
confidential, proprietary, and financial data in the T&M/Venable Agreement, other than T&M’s
hourly rates (which will be redacted). The retainer agreement contains a very generic and obvious
list of investigative steps for an investigation of this nature, with almost no specificity regarding
McDonogh’s case. Neither McDonogh nor T&M has explained how that form-letter type of
information is confidential or proprietary.
Finally, this Court has also considered what was essentially an alternative ruling by Judge
Aslan that neither McDonogh nor T&M has established good cause for the documents’ sealing.
The good cause standard requires the district court to assess whether there is good cause to seal
the documents to protect “a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed. R. Civ. P. 26(c)(1).
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This Court disagrees with McDonogh’s contention that it already performed the good cause
analysis when it issued the protective order. In the protective order (which was stipulated between
the parties), this Court found good cause to believe that there may be documents involved in this
case that would merit confidentiality protections. ECF 11. The protective order, however, allowed
the parties themselves to designate documents requiring such protections and subject them to
interim sealing without further Court intervention. Id. That order did not restrict this Court’s later
ability and obligation to review the documents for the purpose of determining whether good cause
exists for permanent sealing.
For the reasons discussed above in the balance of interests analysis, this Court does not
find good cause to seal the documents in their entirety. Public docketing of these relatively short
exhibits, in redacted form, will not cause any undue burden or expense. Any risk of embarrassment
or annoyance to non-parties will be addressed by the additional redactions ordered herein. And
there is no material embarrassment to McDonogh from the unsealed documents above what has
already accrued from its acknowledgement of the longstanding sexual abuse that occurred at the
school during the relevant time frame and from the detailed accusations in the instant complaints.
This Court will therefore modify Judge Aslan’s opinion only to allow the additional
redactions described herein to protect the privacy interests of non-parties to this litigation.
Otherwise, McDonogh’s objections regarding her sealing ruling are overruled.
B. 	Privilege Claim/Interview Notes
McDonogh’s other objection relates to the privilege protection accorded to notes taken by
project assistants during T&M’s interviews of various witnesses. McDonogh submits that the notes
should be fully shielded under the attorney-client privilege as opinion work product, and that even
if they are fact work product, they are not subject to production because Plaintiffs have not
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demonstrated a substantial need for the notes and because production would be an undue burden.
In contrast, Judge Aslan determined that the notes constituted fact work product subject to
production in discovery.
In her opinion, Judge Aslan agreed with McDonogh that at least one purpose of T&M’s
investigation was to investigate potential claims in anticipation of litigation, bringing it within the
ambit of the work product doctrine. She then turned to the difficult task of drawing the fine line
between opinion work product and fact work product.
T&M conducted myriad witness interviews in furtherance of its investigation. Those
interviews are memorialized in two types of records, interview notes and summaries. Judge Aslan
applied Fourth Circuit precedent determining that “a lawyer’s recollection of a witness interview
constitutes opinion work product entitled to heightened protections,” In re Grand Jury Subpoena,
870 F.3d 312, 317 (4th Cir. 2017), and concluded that the interview summaries, which contain
information organized and edited by the T&M investigators, constitute opinion work product.4 She
drew a distinction, however, between those interview summaries and the interview notes, which
she deemed to be “substantially verbatim” near-transcriptions of the questions and answers from
the witness interviews. ECF 67 at 38. The record before Judge Aslan established that the notes
(some of which have the word “transcript” in their title) were taken by a project assistant, not one
of T&M’s investigators. Id. Judge Aslan therefore concluded that the notes themselves are fact
work product, not opinion work product, because they do not appear to contain editing, evaluation,
or opinion of any sort. Id.
Judge Aslan further concluded that Plaintiffs have demonstrated a substantial need for the
interview notes because they have shown the relevance and importance of the documents and their
4 Plaintiffs express disagreement with that conclusion because the investigators were not McDonogh’s lawyers, but
they have not formally objected to Judge Aslan’s ruling. ECF 80 at 11–13.
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inability to obtain the same facts from other sources. In fact, Plaintiffs assert that the T&M
investigation records are “one of the only sources of information about the case,” because due to
the age of the incidents and their inability to learn the identities of the witnesses outside of those
records, they could not duplicate the investigation on their own.5 McDonogh’s argument that
Plaintiffs could obtain the “substantial equivalent” of the interview notes by conducting their own
investigation is unavailing, given its longstanding unwillingness to disclose the interviewees’
identities to Plaintiffs and the lack of showing that the witnesses’ current whereabouts are known.
Like Judge Aslan, this Court is also persuaded that interviews conducted today would not
be the substantial equivalent of interviews from 2016. Obviously, even the 2016 interviews
occurred decades after the alleged abuse and were not contemporaneous. But another decade has
since elapsed, rendering the 2016 interviews the best available tool in the search for truth regarding
these long-ago events.
Accordingly, this Court perceives nothing clearly erroneous or contrary to law about Judge
Aslan’s ruling on this issue.
Finally, McDonogh notes in its objection that Judge Aslan’s opinion did not speak to
whether McDonogh could redact, from the T&M interview notes before production, information
about events outside the scope of Plaintiffs’ documents request for “documents relating to
allegations of sexual misconduct by McDonogh faculty or staff toward students between 1940 and
1990.” This issue was not squarely presented to Judge Aslan with respect to the interview notes,
nor did she have full knowledge of the content of the interview notes in their entirety because she
reviewed only sample exemplars. Considering this issue in the first instance, then, and not as part
of the review of Judge Aslan’s ruling, this Court will permit redaction of the T&M interview notes
5 As a result of Judge Aslan’s rulings, Plaintiffs will be provided with the witness identities. That had not happened
as of the time of Judge Aslan’s opinion.
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to remove information outside the scope of Plaintiff’s original request – namely, information post-
dating 1990 or dealing with student-on-student sexual misconduct. With those redactions, the
interview notes should be produced in discovery.
C. 	Conclusion
For the reasons stated herein, this Court will MODIFY Judge Aslan’s ruling pursuant to
Federal Rule of Civil Procedure 72(a) to allow some additional redactions, will otherwise
OVERRULE McDonogh’s objections, will DENY AS MOOT McDonogh’s emergency motion to
stay production filed in each of the four related cases, and will permit redaction of the T&M
interview notes to redact information post-dating 1990 or dealing with student-on-student sexual
misconduct.
Dated: February 27, 2026 	________/s/_____________
Stephanie A. Gallagher
United States District Judge
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