1:25-cv-01552•Doe v. McDonogh School, Incorporated
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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DENNIS WEDEKIND, JR., Plaintiff v. MCDONOGH SCHOOL, INC., Defendant. * * * * * * * Civil Action No. SAG-24-1065 ____________________________________ * LEVI B. MILLER, IV, Plaintiff v. MCDONOGH SCHOOL, INC., Defendant. * * * * * * * Civil Action No. SAG-25-0795 ____________________________________ * JOHN DOE, Plaintiff v. MCDONOGH SCHOOL, INC., Defendant. * * * * * * * * Civil Action No. SAG-25-01551 ____________________________________ * JOHN DOE, Plaintiff v. MCDONOGH SCHOOL, INC., Defendant. * * * * * * * * 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, Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 1 of 11
2 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. Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 2 of 11
3 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. Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 3 of 11
4 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 Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 4 of 11
5 “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 Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 5 of 11
6 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, Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 6 of 11
7 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). Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 7 of 11
8 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 Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 8 of 11
9 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. Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 9 of 11
10 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. Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 10 of 11
11 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 Case 1:25-cv-01552-SAG Document 80 Filed 02/27/26 Page 11 of 11
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