Valente

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DR. JOSEPH MICHAEL CIVIL NO. 4:25-CV-00277

VALENTE,

Plaintiff, (NEARY, J.)

(LATELLA, M.J.)

v.

THE PENNSYLVANIA STATE

UNIVERSITY, et al.,

Defendants.

MEMORANDUM

Plaintiff, a deaf tenured professor at the Pennsylvania State

University (“PSU”) alleges that Defendants improperly revoked

previously agreed to accommodations and then retaliated against him

when he attempted to have those accommodations reinstated. The

alleged retaliation culminated in the Office of Ethics and Compliance

issuing a nearly 200-page report addressing various complaints lodged

against Plaintiff as well as complaints raised by Plaintiff (the “OEC

Report”). Plaintiff’s request for the OEC Report through discovery

provoked a dispute ultimately resulting in Defendants filing a Motion

for a Protective Order. While Defendants request that eight categories

of documents be kept confidential – it is clear based upon both parties’

briefing – that the crux of the dispute relates to the OEC Report. For

the reasons set forth herein, Defendants’ Motion for a Protective Order

will be granted in part and denied in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action on February 14, 2025 against

Defendant PSU. (Doc. 1). PSU filed an Answer on April 15, 2025.

(Doc. 7). On July 14, 2025, Plaintiff filed a letter to the docket

requesting a telephonic discovery conference to resolve a discovery

dispute regarding Defendant’s production of the Final Investigative

Report from the Office of Ethics and Compliance (the “OEC Report”).

(Doc. 20). Chief Magistrate Judge Daryl Bloom referred the discovery

dispute to the undersigned federal magistrate judge. PSU submitted a

letter in opposition to Plaintiff’s submission on July 18, 2022 (Doc. 23)

and Plaintiff submitted a reply thereto on July 21, 2025 (Doc. 25). We

held a telephonic discovery conference on July 22, 2025. (Doc. 22).

Plaintiff filed an Amended Complaint on July 18, 2025. (Doc. 24).

He added an additional defendant, Dr. Kimberly Lawless, Dean of the

College of Education at PSU. Id. In the Amended Complaint, Plaintiff

alleges that Defendants revoked certain disability-related

accommodations due to budgetary constraints. (Id. at ¶ 24). When

Plaintiff made efforts to restore those accommodations, he alleges that

Defendants engaged in retaliation. (Id. at ¶ 25). The Amended

Complaint includes six counts. He asserts a violation of the Americans

with Disabilities Act; retaliation in violation of the Americans with

Disabilities Act; a violation of Section 504 of the Rehabilitation Act;

retaliation in violation of the Rehabilitation Act; violation of the

Fourteenth Amendment; and violation of the First Amendment. Id.

Defendants filed an Answer to Plaintiff’s Amended Complaint on

August 15, 2025. (Doc. 30).

On August 15, 2025, Defendants also submitted a letter to the

Court in support of a motion for a protective order. (Doc. 31). Plaintiff

submitted a response on August 17, 2025. (Doc. 32). On August 22,

2025, we held an additional telephonic conference in an effort to resolve

the ongoing discovery dispute. (Doc. 35). The parties were not able to

resolve their dispute and so, Defendants were directed to file a motion

for a protective order. Id. Defendants filed their motion and supporting

brief on September 5, 2025. (Docs. 36, 37). Plaintiff filed a brief in

opposition on September 19, 2025. (Doc. 38). Defendants filed a reply

in further support on October 3, 2025. (Doc. 39).

The matter is now ripe for review.

II. LEGAL STANDARD1

Issues relating to the scope of discovery permitted under Rule

26 rest in the sound discretion of the Court. Wisniewski v. Johns-

Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Under Federal Rule of

Civil Procedure 26(c), the Court may, for good cause, issue a protective

order “to shield a party from annoyance, embarrassment, oppression, or

undue burden or expense” during discovery. Fed. R. Civ. P. 26(c)(1); see

also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994).

“A protective order is intended to offer litigants a measure of privacy,

while balancing against this privacy interest the public's right to obtain

information concerning judicial proceedings.” In re Avandia Mktg.

Sales Pracs. & Prods. Liab. Litig., 924 F.3d 662, 671 (3d Cir. 2019)

(quotation marks omitted); see also McKenna v. City of Philadelphia,

1 Discovery disputes are considered non-dispositive matters which

may be addressed by federal magistrate judges. See 28 U.S.C.

§636(b)(1)(A); Fed. R. Civ. P. 72(a); see also Riley v. Clark, No. 4:20-CV-

325, 2023 WL 6129507, at *2 (M.D. Pa. Sept. 19, 2023).

No. Civ.A. 98-5835, 2000 WL1521604, at *1 (E.D. Pa. Sept. 29, 2000)

(“Whether th[e] disclosure will be limited depends on a judicial

balancing of the harm to the party seeking protection (or third persons)

and the importance of disclosure to the public.”). The “party seeking a

protective order over discovery material must demonstrate that good

cause exists for the order.” In re Avandia, 924 F.3d at 671. “Good cause

means that disclosure will work a clearly defined and serious injury to

the party seeking closure,” and the injury “must be shown with

specificity.” Id. “Broad allegations of harm, unsubstantiated by specific

examples or articulated reasoning do not support a good cause

showing.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.

1994).

In determining whether good cause exists, the Third Circuit has

instructed us to consider the following factors, which are “neither

mandatory nor exhaustive”: (1) whether the disclosure will violate any

private interests; (2) whether disclosure of the information will cause a

party embarrassment; (3) whether the information is being sought for a

legitimate purpose or for an improper purpose; (4) whether the sharing

of information among the litigants will promote fairness and efficiency;

(5) whether confidentiality is being sought over information important

to public health and safety; (6) whether a party benefitting from the

order of confidentiality is a public entity or official; and (7) whether the

case involves issues important to the public. Glenmeade Trust Co. v.

Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at

787-91)). These have come to be known as the Pansy factors.

Courts have the discretion to “fashion a set of limitations that

allows as much relevant material to be discovered as possible, while

preventing unnecessary intrusions into the legitimate interests—

including privacy and other confidentiality interests—that might be

harmed by the release of the material sought.” Pearson v. Miller, 211

F.3d 57, 65 (3d Cir. 2000). Applying the Pansy factors here, we find

that they weigh in favor of granting the protective order.

III. DISCUSSION

Defendants indicate that they are prepared to produce relevant

documents responsive to Plaintiff’s request. (Doc. 37 at 13)2. However,

they submit that eight categories of documents should be protected and

2 For the sake of clarity, to the extent there is a discrepancy

between a party’s pagination in briefing and the ECF page number, we

refer, in all instances, to the ECF page number.

that the use of documents in these categories outside of this lawsuit

should be prohibited. (Id.). The eight categories of documents that

Defendant seek to protect include: (1) statutorily protected information;

(2) Plaintiff’s medical records; (3) the OEC Report; (4) documents

related to the OEC Report; (5) personnel files and related documents

pertaining to faculty and Penn State staff who are not Plaintiff; (6)

complaints raised about Plaintiff by students, faculty, and staff; (7) any

documents pertaining to current or former students; and (8) electronic

communications among Penn State students, faculty, or staff (excluding

communications that included Plaintiff), due to confidentiality

protections afforded to those communications under Penn State Policy

AD53. We will consider those requests in light of the Pansy factors.

A. First Pansy Factor: Will Disclosure Violate Privacy Interests

In many cases, courts have considered this first factor the most

important when analyzing a motion for a protective order. See, e.g.,

Humphries v. Barber, No. 4:20-cv-00064, 2022 WL 3107914, at *3 (M.D.

Pa. Aug. 4, 2022); Rosenblit v. City of Philadelphia, No. CV 20-3121-

KSM, 2021 WL 288887, at *6 (E.D. Pa. Jan. 28, 2021); McCowan v. City

of Philadelphia, No. 2:19-cv-03326-KSM, 2021 WL 1193241 at *4 (E.D.

Pa. Mar. 30, 2021). We consider the privacy interests implicated with

respect to each of the categories of documents Defendants seek

protection over.

1. Category 1: Statutorily Protected Information

Defendants do not provide much detail regarding the types of

documents included within this category. The only referenced statute is

the Family Educational Rights and Privacy Act of 1974 (“FERPA”).

(Doc. 37 at 10-11). Accordingly, we will only address the applicability of

FERPA. Defendants maintain that FERPA applies to the OEC Report

and the investigation-related documents, both separate categories of

documents for which Defendants seek protection. (Id. at 15). In

support of this argument, Defendants point to Humphries v. Barber, No.

4:20-cv-00064, 2022 WL 3107914, at *3 (M.D. Pa. Aug. 4, 2022) and

Manco v. St. Joseph’s University, 350 F.R.D. 62 (E.D. Pa. 2025).

Plaintiff’s discussion of this section is similarly sparse. Initially,

Plaintiff notes that Defendants’ motion for protection of this category of

documents “fails because Penn State has not identified which statutes

allegedly protect what specific information.” (Doc. 38 at 13). However,

in apparent recognition of the fact that Defendants do raise FERPA and

tie it to the OEC Report, Plaintiff then argues that FERPA has no

application here because the OEC Report is redacted and so, “the

privacy interests FERPA seeks to protect have already been addressed.”

(Id. at 15). Further, Plaintiff argues that the OEC Report is an

employment record concerning faculty misconduct, and not an

education record, therefore falling outside the ambit of FERPA’s

purview. (Id.). In support of that proposition, Plaintiff cites to Rios v.

Read, 73 F.R.D. 589, 598 (E.D.N.Y. 1977).3

FERPA applies to all educational institutions or agencies that

receive funds under federal programs administered by the U.S.

Commissioner of Education. Lei Ke v. Drexel Univ., No. CIV.A. 11-6708,

2014 WL 1100179, at *4 (E.D. Pa. Mar. 20, 2014). FERPA establishes

minimum standards for the protection of a student's privacy and other

rights, and enforces such standards by authorizing the denial of funds

to educational institutions and agencies that fail to meet these

prerequisites. 20 U.S.C. § 1232g. Section 1232g(b)(1) prevents the

unrestricted release of a student's education records or any “personally

3 This case does not stand for the specific proposition asserted by

Plaintiff. None of the documents sought in Rios pertained to employee

records. 73 F.R.D. at 591-92.

identifiable information” contained in such records to unauthorized

individuals or organizations without the consent of the student and/or

parents. See Mattie T. v. Johnson, 74 F.R.D. 498, 501 (N.D. Miss. 1976).

Education records are those records or documents maintained by the

institution or agency which “contain information directly related to a

student.” 20 U.S.C. § 1232g(a)(4)(A)(i).

“Personally identifiable information” is defined in 34 C.F.R. § 99.3

to include: (a) the student's name; (b) the name of the student's parent

or other family member; (c) the address of the student or student's

family; (d) a personal identifier, such as the student's social security

number, student number, or biometric record; (e) other indirect

identifiers, such as the student's date of birth, place of birth, and

mother's maiden name; (f) other information that, alone or in

combination, is linked or linkable to a specific student that would allow

a reasonable person in the school community, who does not have

personal knowledge of the relevant circumstances, to identify the

student with reasonable certainty; or (g) information requested by a

person who the educational agency or institution reasonably believes

knows the identity of the student to whom the education record relates.

34 C.F.R. § 99.3.

While we find the opinions in Humphries and Manco instructive

as to whether certain other categories of documents warrant protection,

we are unable to find, based upon those opinions, that the entire OEC

Report and associated documents are protected by FERPA. In Manco,

the parties entered into a protective order that included an

investigation report based upon student complaints of a professor that

included redactions made pursuant to FERPA. 350 F.R.D. at 66. The

parties did not raise the issue of whether FERPA applies to records

relating to teachers or employees rather than students and so, the court

did not reach that issue. In Humphries, the investigative report at

issue dealt with allegations of a student, not professor misconduct.

2022 WL 3107914. Accordingly, the analysis in that opinion regarding

the applicability of FERPA is likewise not directly applicable here.

Other courts that have considered similar facts have held that

“FERPA protects the disclosure of student records, not teacher records.”

J.O. v. Board of Education of Albuquerque Public School, No. 1:23-cv-

01021-KG-JMR, 2025 WL 623543, at *2 (D.N.M. Feb. 26, 2025) (citing

Klein Indep. Sch. Dist. v. Mattox, 830 F.2d 576, 579 (5th Cir. 1987)).

Accordingly, courts have found that reports of student misconduct are

protected by FERPA4, U.S. v. Miami University, 294 F.3d 797, 815 (6th

Cir. 2002), but reports relating to investigations of employee complaints

of discrimination are not “educational records” protected from disclosure

by FERPA, Seoane-Vazquez v. Ohio State University, No. 02:07-CV-

00775, 2009 WL 10710390, (S.D. Ohio May 8, 2009), and likewise,

reports of employee misconduct do not constitute “educational records,”

Ellis v. Cleveland Municipal School Dist., 309 F. Supp. 2d 1019, 1022

(N.D. Ohio 2004).

The fact that student information sometimes appears in employee

records does not necessarily transform those documents into “education

records” protected by FERPA. Id. In Seoane-Vazquez v. Ohio State

University, No. 02:07-CV-00775, 2009 WL 10710390, (S.D. Ohio May 8,

2009), the court considered whether records relating to an investigation

of a professor’s complaint that other faculty members discriminated

against him because of his national origin, including summaries of two

4 The report in Humphries related to allegations of student

misconduct, putting it squarely within FERPA. See Miami, 294 F.3d at

815.

student interviews, was protected by FERPA. The court noted that the

records at issue included student statements to university investigators

regarding employee conduct, including interactions with students. Id.

at *4. The court concluded that “documents created during the course

of the investigation of . . . [the] discrimination complaint and those used

during the course of the [school’s] decision to deny him tenure are not

‘educational records’ within the meaning of FERPA except to the extent

that they may incorporate ‘educational records. . . ’” Id. at *1.

In Ellis v. Cleveland Municipal School Dist., 309 F. Supp. 2d 1019

(N.D. Ohio 2004), the court considered a discovery dispute arising from

a student's suit against the school district regarding corporal

punishment of students by substitute teachers. Id. The plaintiff sought

records of allegations of physical altercations involving substitute

teachers, as well as student and employee witness statements related to

those altercations. Id. at 1022. The court held that these did not

qualify as educational records because “[w]hile these records clearly

involve students as alleged victims and witnesses, the records

themselves are directly related to the activities and behaviors of the

teachers themselves and are therefore not governed by FERPA.” Id. at

1023. The court noted that “Congress did not intend FERPA to cover

records directly related to teachers and only tangentially related to

students.” Id. at 1022 (citing Bauer v. Kincaid, 759 F. Supp. 575, 591

(W.D. Mo. 1991) (FERPA was designed to address systematic violations

of student privacy and function of FERPA is “to protect educationally

related information”)).

Likewise, in J.O. v. Bd. of Educ. Of Albuquerque Public Schools,

No. 1:23-cv-01021-KG-JMR, 2025 WL 623543, at *2 (D.N.M. Feb. 26,

2025), the court found that an administrative investigation into an

employee’s misconduct was not an education record covered by FERPA.

The court noted that student victim and witness statements contained

therein related to the activities and behaviors of the teacher. Id. at *3.

While the court found certain specific documents in the report were

education records protected by FERPA, it concluded that “the bulk of

the records are an investigation report into a teacher . . . rather than

‘education records’ related to a particular student.” Id.

Here, too, the “bulk” of the OEC Report relates to the

investigation report of a professor, not education records of a particular

student. Without disclosing specific details of the OEC Report, it covers

both complaints raised by students and other faculty and staff members

about Plaintiff as well as complaints made by Plaintiff against PSU.

Those portions of the OEC Report that focus on Plaintiff’s allegations

against PSU are not subject to FERPA. See Seoane-Vazquez, 2009 WL

10710390, at *1.

The portions of the OEC Report discussing complaints against

Plaintiff, however, require a more nuanced consideration. We note that

certain reports made by students or accounts of specific student

incidents relayed by other University personnel include detailed

information relating to specific students’ educational experiences.

Unlike the student statements in Ellis that related to allegations of

teachers’ corporal punishment or the student statements in Seoane-

Vazquez which related to an employee’s allegations of discrimination by

other employees5, many of the accounts provided by students, faculty

and staff relate to specific student incidents involving education. See

Ellis, 309 F. Supp. 2d at 1021; Seoane-Vazquez, 2009 WL 10710390, at

5 The OEC Report also discussed Plaintiff’s complaints that the

University failed to afford him with his requested accommodations and

retaliated against him. As noted above, the portions of the OEC Report

relating only to those issues are not covered by FERPA.

*1. Given the “broad” definition of “education records,” set forth in

FERPA, we deem documents within the OEC Report that include such

information to be “education records.” See Miami Univ., 294 F.3d at

812. We do not consider documents relating to complaints against

Plaintiff that include only general allegations to be “education records,”

but rather only those documents that include allegations or instances

with sufficient specificity that the student involved may potentially be

identifiable. See 34 C.F.R. § 99.3 (personally identifiable information

under FERPA includes “other information that, along or in

combination, is linked or linkable to a specific student that would allow

a reasonable person in the school community, who does not have

personal knowledge of the relevant circumstances, to identify the

student with reasonable certainty.”). To that end, merely redacting the

names of complainants or witnesses would be insufficient. Based upon

the very specific accounts and details provided, it is possible that the

identities of those individuals may still be ascertained notwithstanding

the redactions. The pages of the OEC Report covered by FERPA

include: 7, 8, 9, 10, 11, 12, 15, 16, 20, 21, 23, 24, 30, 31, 33, 34, 35, 36,

37, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75,

76, 77, 78, 80, 83, 84, 85, 86, 87, 90, 93, 97, 98, 99, 100, 110, 113, 114,

115, 152, 153, 154, 155, 156, 157, 166, 167, 168, 169, 170.

Materials covered by FERPA do not gain immediate protection but

are presumed to have a strong privacy interest attached. Manco, 350

F.R.D. at 69 (citing Lei Ke, 2014 WL 1100179, at *5). Thus, as the court

found in Manco, “disclosure of FERPA-protected information violates

the privacy interests of current and former students named in the [OEC

Report]” and so, “[t]his factor deserves special weight in the analysis,

since the privacy interests at issue are afforded explicit protection

under federal law.” Manco, 350 F.R.D. at 69.

2. Category 2: Plaintiff’s Medical Records

Unfortunately, neither party provides any analysis of what

medical records of Plaintiff the Defendants seek to keep confidential.

Because Plaintiff does not include any objection to this category of

records, we consider Defendants’ request for protection over this

category of documents to be unopposed. See, e.g., Advanced Fluid

Systems, Inc. v. Huber, 381 F. Supp. 3d 362, 392 n.15 (M.D. Pa. 2019)

(courts have discretion to deem opposition to an argument to be waived

where a party fails to respond to the argument in an opposition brief).

3. Categories 3 and 4: The OEC Report and Related

Documents

Defendants assert that “other courts in the Third Circuit have

recognized the privacy interests implicated by internal investigations,

non-party personnel records, and non-party complaints outside the

university context.” (Doc. 37 at 15) (citing McKenna, 2000 WL 1521604,

at *3; Rosenblit, 2021 WL 288887, at *6, 8). Defendants argue that the

non-party students and faculty involved in the report have legitimate

privacy interests that “should not be jeopardized by giving Plaintiff

carte blanche to disclose them outside of this litigation.” (Doc. 37 at 16).

Plaintiff counters that privacy interests are “minimal” and have

been adequately addressed by redactions. (Doc. 38 at 17-18). He also

argues that the “sword-and-shield doctrine” prohibits Defendants from

“wield[ing] evidence as a weapon while shielding it from scrutiny.” (Id.

at 11). He asserts that Defendants publicly announced the report’s

conclusions of misconduct in their Answer and so, cannot shield the

report from scrutiny. (Id. at 14).

Defendants reply by arguing that redactions are not sufficient to

protect the privacy interests at stake. (Doc. 39 at 6). They also

maintain that the “sword-and-shield” doctrine has no application here.

(Id. at 17). Defendants argue that Plaintiff’s reliance upon EEOC v.

George Washington University, 502 F. Supp. 3d 62, 71 (D.D.C. 2020) is

misplaced because that case addressed whether the attorney-client

privilege can be waived by placing the contents of a document at issue

and Defendants here are not invoking attorney-client privilege.

Further, Defendants point out that they are not seeking to “shield”

relevant documents “from the parties, the Court, or other individuals

who have a bona fide interest in Plaintiff’s lawsuit.” (Doc. 39 at 18).

Rather, Defendants argue that they are attempting to “facilitate the

exchange of information necessary to advance discovery, while also

guarding documents containing sensitive, personal, and potentially

injurious information belonging to Penn State faculty, staff, and

students against broad dissemination to the public.” (Id.).

We find unpersuasive Plaintiff’s contention that any privacy

interests of students or faculty in the statements that they provided in

conjunction with PSU’s investigation of Plaintiff are “minimal.” (See

Doc. 38 at 17-18). Rather, as other courts have recognized, non-party

student and faculty witnesses and complainants have a privacy interest

in keeping their reports confidential. Manco, 350 F.R.D. at 67-68;

Rosenblit, 2021 WL 2888887, at *6 (public disclosure of investigatory

file would threaten privacy interests of nonparties, where investigatory

file included complaints and witness interviews given with expectation

of privacy, discretion, and even confidentiality); McKenna, 2000 WL

1521604, at *2-3 (finding individuals who provided information

regarding EEOC complaints and investigations had interest in

maintaining confidentiality of the records, noting “[t]he candor of people

providing information in such investigations is essential to the

investigative process. Disclosure could ‘chill’ such candor in the

future.”)6 Preserving such confidentiality is a legitimate concern of

6 Plaintiff’s reliance upon University of Pennsylvania v. EEOC,

493 U.S. 182 (1990) for the proposition that “Penn State’s primary

justification—that disclosure would ‘chill’ future investigations,” is

misplaced. Plaintiff argues that the Supreme Court “unanimously

rejected the argument that disclosing peer review materials would chill

participation. (Doc. 38 at 16). He claims that “Penn State makes the

identical argument the Supreme Court rejected” and that “its witnesses

were employees with obligations to cooperate, not volunteers.” (Id.). In

University of Pennsylvania, the school sought to completely withhold

subpoenaed documents from a professor’s tenure file documents from

the EEOC based upon assertions of privilege. Here, as Defendants

point out, they are not attempting to withhold any documents from

Plaintiff based upon any assertions of privilege. (Doc. 39 at 13-14).

Rather, they claim that they have shared or are prepared to share,

relevant information with Plaintiff in the course of discovery, but seek

to prohibit certain records from public disclosure. The Court’s analysis

in University of Pennsylvania, therefore, is inapposite. Further, we note

PSU, as “a chilling effect could result from disclosure, which could

negatively impact campus culture and its students’ trust in the

university.” Manco, 350 F.R.D. at 67.

Further, we do not agree with Plaintiff that the “sword-and-

shield” doctrine requires that Plaintiff be permitted to publicly

disseminate the OEC Report and associated documents. Plaintiff cites

a single case for this proposition: United States Equal Employment

Opportunity Commission v. George Washington University, 502 F. Supp.

3d 62 (D.D.C. 2020). In that case, the Court considered whether a party

placed privileged material at issue by “asserting reliance on an

attorney’s advice as an element of a claim or defense.” 502 F. Supp. 3d

at 87. The Court found no basis to conclude that the University would

advance a defense that relies upon privileged materials so as to justify a

waiver of attorney-client privilege. We find those facts far afield from

the issue at hand. Here, as Plaintiff well knows, Defendants are not

asserting a privilege as a basis to withhold the OEC or associated

Defendants seek to protect statements from both faculty and student

non-party witnesses and complainants. Any suggestion by Plaintiff

that those individuals’ participation in PSU’s investigation was

mandatory is not supported by the submissions before us.

documents from Plaintiff for use in the current litigation. And nothing

in this opinion should be construed as suggesting that—to the extent a

document is deemed deserving of protection from public

dissemination—Plaintiff is prohibited from utilizing it in the

prosecution of his claims. We therefore reject Plaintiff’s argument that

the sword-and-shield doctrine is a basis to deny Defendants’ Motion for

a Protective Order.

Finally, as discussed supra, we do not deem redactions of names

sufficient to protect the identities of non-party student, faculty, and

staff complainants and witnesses given the detailed accounts provided.

Thus, for the reasons stated above, the first Pansy factor weighs heavily

in favor of a protective order as to those portions of the OEC Report that

are not yet in the public domain.

However, as Defendants provide in their Proposed Protective

Order, “[n]o information that is in the public domain; that is already

known by the receiving Party through proper means; or that becomes

available to a Party from a source other than the Party asserting

confidentiality and such source was rightfully in possession of such

information on a non-confidential basis, will be deemed to be

Confidential Material under this Order.” (See Doc. 36-4 at ¶ 4). Several

documents reproduced within the OEC Report fall into that category.

Accordingly, there is no privacy interests in the following portions of the

OEC Report:

1. Appendix A: August 14, 2023, Letter from Eisenberg & Baum

regarding Dr. Valente; Page 82

2. Appendix F: December 20, 2024, Memorandum from Dean

Kimberly Lawless to Dr. Valente; Pages 101-102

3. Appendix G: January 6, 2025, Email from Dr. Valente to Dean

Kimberly Lawless; Pages 103-108

4. Appendix K: February 14, 2025, Dr. Valente’s Complaint in this

matter; Pages 118-144

5. Appendix M: March 26, 2025, Email from Dr. Valente to Erik

Kochanowski; Pages 148-149

6. Appendix N: December 20, 2013, Letter from Affirmative Action

and Diversity Education Office to Dr. Valente; Pages 150-151

7. Appendix Q: December 20, 2024, Letter from Dean Lawless to Dr.

Valente; Pages 158-159

8. Appendix R: January 6, 2025, Dr. Valente email to Dean Lawless;

Pages 160-165

4. Category 5: Personnel Files and Related Documents for

Faculty and Staff Other than Valente

Defendants maintain the first Pansy factor also weighs in favor of

protection for described personnel files. (Doc. 37 at 15-16). Defendants

cite to McKenna and Rosenblit, asserting that non-party faculty “whose

records may be drawn into this matter” have legitimate privacy

interests that “should not be jeopardized by giving Plaintiff carte

blanche to disclose them outside of this litigation.” (Id. at 16).

Plaintiff includes only a brief argument with respect to the

personnel files. (Doc. 38 at 14). With no citation to any legal authority,

he claims that: “[]personnel file[] may contain comparator evidence

essential to proving discrimination. Where such evidence is relevant

and necessary to establish unlawful discrimination, the public interest

in exposing discriminatory practices outweighs generalized privacy

concerns.” (Id.).

Courts regularly acknowledge the confidential nature of non-party

personnel files. Miles v. Boeing Co., 154 F.R.D. 112, 115 (E.D. Pa. 1994)

(“Personnel files are confidential and discovery should be limited.”);

McKenna, 2000 WL 1521604, at *2 (“The interests of the [p]laintiffs

with regard to” personnel files “cannot overcome the privacy and safety

interests that the [d]efendants and the public have in their

confidentiality.”); Northern v. City of Philadelphia, No. CIV. A. 98-6517,

2000 WL 355526, at *3 (E.D. Pa. Apr. 4, 2000) (discovery of personnel

files should be limited). Although employment information regarding

other candidates or employees in an employment discrimination case is

subject to discovery, University of Pennsylvania v. E.E.O.C., 493 U.S.

182 (1990), personnel files are confidential and discovery should be

limited. Miles, 154 F.R.D. at 115 (citing Orbovich v. Macalester College,

119 F.R.D. 411, 415 (D. Minn. 1988)).

Here, non-party PSU faculty plainly have a privacy interest in

maintaining the confidentiality of their personnel files. As the court in

Rosenblit acknowledged, those individuals “have no opportunity to

defend themselves or provide context for their records” and so, public

dissemination of the files “would open those employees to potential

censure and embarrassment.” 2021 WL 288887, at *6. Accordingly, the

first Pansy factor weighs in favor of protection of the personnel files.

5. Category 6: Complaints Raised About Plaintiff by

Students, Faculty, and Staff

Defendants shed no light as to the particulars of this category of

documents. It is unclear whether PSU includes additional complaints

about Plaintiff by student, faculty, and staff, which were not captured

in the OEC Report, or would not be considered documents related to the

OEC Report. Likewise, Plaintiff gives only cursory treatment to this

category, noting that it “presents particularly troubling grounds for

blanket protection. Given Plaintiff’s allegation that complaints were

solicited as part of a retaliatory scheme, categorical protection would

shield evidence of the retaliation itself.” (Doc. 38 at 14).

Given the parties’ lack of attention to this category, we will simply

apply our analysis as to the OEC Report and Related Documents to this

category as well. We note, however, again, that Plaintiff’s suggestion

that “protection” of this category of documents will “shield evidence of

the retaliation” mischaracterizes the relief sought by Defendants. As

Defendants stated multiple times in their briefing, and we have already

discussed herein, Defendants indicated that they have or will produce

relevant documents to Plaintiff for use in this litigation. Thus, there

will be no shielding of relevant evidence by virtue of granting

Defendants’ Motion for a Protective Order.

6. Category 7: Any Documents Pertaining to Current or

Former Students

Defendants likewise fail to expound upon the particulars of this

category of documents. And Plaintiff offers no response as to this

category of documents. It is not possible for us to evaluate the privacy

interests at stake based upon the information provided.

7. Category 8: Electronic Communications Among Penn

State Students, Faculty, or Staff (PSU Policy AD53)

Finally, Defendants argue that PSU faculty, staff, and students

have a reasonable expectation of privacy in their emailed

communications pursuant to University Policy AD53. (Doc. 37).

Plaintiff counters – again with no citation to legal authority – that

university policies “cannot create federal evidentiary privileges or

supersede Rule 26 analysis.” (Doc. 38 at 14). Further, he claims that

“employees discussing or performing workplace misconduct have no

reasonable expectation that their communications will remain secret if

litigation ensues.” (Id.).

In Hodczak v. Latrobe Specialty Steel Company, No. 08-649, 2009

WL 10689802, at *2 (W.D. Pa. Nov. 2, 2009), the Court found that no

privacy rights would be violated by disclosure of employee emails where

the employees had no expectation of privacy in their emails pursuant to

the employer’s electronic communications policy.

Unlike in Hodczak, PSU maintains a policy which recognizes an

expectation of privacy for employees and students in their

communications, including electronic communications. (Doc. 37 at 16-

17). PSU Policy AD53 provides that:

[T]he University recognizes the reasonable

privacy expectations of its students [and]

employees . . . in relation to their personal

information, including papers, confidential

records, and communications by mail, telephone,

and other electronic means, subject only to

applicable state and federal laws and University

policies and regulations . . . . Except as required

in the ordinary course of University business, the

University will not access or monitor such

information without cause except as required by

law or otherwise permitted by University

Policy . . . .

(Id. at 17). Based upon this policy, it appears as though PSU faculty,

staff, and students have a reasonable expectation of privacy in their

electronic communications. Accordingly, the first Pansy factor weighs

in favor of protection, as disclosure would violate the privacy interests

of those faculty, staff, and students.

B. Second Pansy Factor: Whether Disclosure of the Information

Will Cause a Party Embarrassment

Defendants argue that unrestricted disclosure of student and

faculty statements, communications, and files “will certainly result in

the embarrassment of non-parties.” (Doc. 37 at 20). Because we believe

the categories overlap, for purposes of consideration of the some of the

remaining Pansy factors, we will combine the following categories:

Category 1: statutorily protected information; Categories 3 and 4: the

OEC Report and Associated Documents; and Category 6: complaints

raised about Plaintiff by students, faculty and staff.

1. Categories 1, 3, 4, 6: Statutorily Protected Information,

the OEC Report and Associated Documents, Complaints

raised about Plaintiff

These categories of documents include “potentially embarrassing

information about parties and non-parties alike.” See Humphries, 2022

WL 3107914, at *4. Our in camera review of the OEC Report reveals

that students, faculty, and staff relayed specific, sensitive experiences

and that disclosure of that information may result in embarrassment to

the individuals who relayed such information. Accordingly, the second

Pansy factor weighs in favor of protecting these categories of

documents.

2. Category 5: Personnel Files of PSU Employees other than

Valente

As courts have found, public disclosure of non-party personnel

files would potentially cause embarrassment to those individuals. See

Rosenblit, 2021 WL 288887, at *6; Morrison v. Philadelphia Housing

Authority, 203 F.R.D. 195, 197 (E.D. Pa. 2001). Thus, for this category,

the second Pansy factor likewise weighs in favor of protection.

3. Category 7: Any Documents Pertaining to Current or

Former Students

This category of documents is broad and undefined in scope. Of

course, there is the potential that such a large category of documents

may contain some embarrassing information about current and former

students, but we cannot say for certain, given the limited information

we have been provided. To the extent documents pertain to current or

former students and constitute “education records,” however, they

would be covered by FERPA.

4. Category 8: Electronic Communications Among PSU

Students, Faculty, or Staff

With respect to this category, in discussion of the second Pansy

factor, Defendants state that unrestricted disclosure of student and

faulty communications, including communications among faculty and

students relating to the OEC investigation, “will certainly result in the

embarrassment of non-parties, for which courts have shown particular

concern.” (Doc. 37 at 20).

Plaintiff does not discuss the application of the second Pansy

factor with respect to each category of documents at issue. Rather, he

cites to In re Avandia, noting “concern about a company’s public image,

embarrassment, or reputational injury, without more, is insufficient.”

(Doc. 38 at 19) (citing In re Avandia, 924 F.3d at 676). We find this

argument unhelpful and unpersuasive. First, as Defendants noted, the

parties potentially subject to embarrassment here included not only

PSU, but more importantly, non-party students, faculty and staff.

Second, the language from In re Avandia cited by Plaintiff came from

the Court’s discussion of the “common law right of access,” not an

analysis regarding the propriety of a protective order under Rule 26.7

Here, we are not addressing the common law right of access; potential

embarrassment resulting from disclosure is one of the factors we are to

consider pursuant to our resolution of a motion for a protective order.

We are persuaded by Defendants that disclosure of electronic

communications of students, faculty and staff, made with an

expectation that those communications would be kept confidential, may

cause embarrassment to non-parties. Accordingly, this Pansy factor

weighs in favor of protection as to this category of documents.

7 In fact, the Third Circuit held that the court erred in conflating

the legal standards for common law right of access and protective orders

under Rule 26, noting that each has a distinct legal standard. In re

Avandia, 924 F.3d at 669.

C. Third Pansy Factor: Whether the Information is Being

Sought for a Legitimate Purpose or for an Improper Purpose

Neither party separates this factor out with respect to the various

categories of documents for which Defendants are seeking a protective

order. Our analysis of this factor will therefore also pertain to all

categories.

Defendants argue that Plaintiff “[h]as [s]ignaled” that the

requested materials are being sought for an improper purpose: to clear

his name publicly. (Doc. 37 at 17-18). Defendants further note that

Plaintiff has made repeated references to media interest in this lawsuit

and has “insinuated his intended use of discovery materials for extra-

judicial purposes.” (Id. at 18).

In response, Plaintiff does not dispute Plaintiff’s assertions

regarding his intent to use the documents for extra-judicial purposes.

He notes that PSU publicized the investigation’s conclusions in its

public Answer. (Doc. 38 at 18). Accordingly, he contends that

responding to public accusations is a fundamental right. (Id.). Plaintiff

states that “[t]he OEC Report and supporting documents are essential

for proving pretext.” (Id.).

We find Manco, supra, instructive as to this factor. 350 F.R.D. at

67. In Manco, the Plaintiff indicated that he wished to publicly disclose

the investigative report at issue in a motion for a protective order to

“publicly clear his name.” Id. The court stated: “Plaintiff may seek to

clear his name by prevailing in the litigation, but the Court does not

concern itself with his attempt to litigate the case in the public eye.” Id.

We agree. Nothing in this Opinion should be construed as limiting

Plaintiff’s ability to use the OEC Report or associated documents to

establish any element of his claims. But his desire to publicly

disseminate those materials to “litigate the case in the public eye” does

not persuade us that this Pansy factor weighs in favor of denying

Defendants’ Motion. Rather, we find that this factor likewise weighs in

favor of protection. See Manco, 350 F.R.D. at 67.

D. Fourth Pansy Factor: Whether the Sharing of Information

Among the Litigants will Promote Fairness and Efficiency

We find this factor to be neutral. As previously discussed, there is

no indication that Defendants are seeking to withhold any information

from Plaintiff. Rather, they have indicated that they have shared or are

prepared to share the requested materials with Plaintiff but seek a

limitation on Plaintiff’s ability to disclose the materials. (Doc. 39 at 18).

E. Fifth Pansy Factor: Whether Confidentiality is Being Sought

Over Information Important to Public Health and Safety

Here again, Defendants do not apply the fifth Pansy factor to each

separate category of documents, but rather provide a short analysis of

this factor, which apparently, should apply to all categories.

Defendants assert that the documents sought to be protected do not

implicate public health or safety. (Doc. 37 at 21). Plaintiff fails to even

reference this factor. (See generally, Doc. 38).

Based upon the information provided by the parties regarding

each category of documents sought to be protected, it does not appear

that there is any information in the requested documents that contains

information important to the public health and safety. Accordingly, this

factor weighs in favor of protection. See Manco, 350 F.R.D. at 67

(“Because the report does not contain information important to public

health and safety, [this] Pansy factor weighs in favor of retaining the

confidentiality designation.”).

F. Sixth Pansy Factor: Whether a Party Benefitting from the

Order of Confidentiality is a Public Entity or Official

Here again, neither party applies this factor to each separate

category of documents sought to be protected. Rather, each party

provides only a brief analysis that we will assume is meant to apply to

each category. Defendants maintain that PSU’s status as a “partially

publicly funded [u]niversity” does not “outweigh the consideration due

to non-party students, faculty members, and staff, whose emails or

recorded statements, records or files may have been made relevant to

this litigation through the course of the OEC investigation or during

Plaintiff’s ongoing employment with Penn State . . .” (Doc. 37 at 24).

They assert that it “is the private members of the Penn State

community, not the university, who will ‘benefit[] from the order of

confidentiality.’” (Id.) (citing In re Avandia, 924 F.3d at 671).

Plaintiff counters by asserting that PSU’s status a “state-related

university” creates a “strong mandate for transparency.” (Doc. 38 at 17)

(citing Shingara v. Skiles, 420 F.3d 301, 308 (3d Cir. 2005)). He further

argues that the public has “profound interests in how a major

university handles disability discrimination and whether its post-Freeh

Report accountability mechanisms (the OEC) function properly or are

used as tools of retaliation.” (Id. at 17).

Plaintiff is correct that where the entity benefitting from a

protective order is a public official, this Pansy factor weighs against a

protective order. See Shingara, 420 F.3d at 308. But Shingara is not

directly applicable here. In Shingara, the only parties benefitting from

the protective order at issue were public officials. Id. at 308. By

contrast, here, while PSU will undoubtedly benefit from the protective

order, we agree with Defendants that the primary beneficiaries are the

individual students, faculty members, and staff, who provided

information relevant to the investigation of Plaintiff. And in Manco, the

court found that where the parties benefitting from a protective order

were students who initiated or participated in the investigation of a

university professor, this Pansy factor weighed in favor of protection.

Manco, 350 F.R.D. at 67.

Because the beneficiaries of sought protective order include both

PSU, a “partially publicly funded university,” and private parties, we

find this sixth Pansy factor to be neutral.

G. Seventh Pansy Factor: Whether the Case Involves Issues

Important to the Public

Finally, as to this last factor, the parties provide only a general

analysis and do not apply it to each individual category of documents

sought to be protected. Defendants assert that this case does not

involve issues important to the public but rather is a routine

employment discrimination case. (Doc. 37 at 25). They further argue

PSU’s status as a semi-public entity does not make this final factor

dispositive. (Id.). Defendants assert that courts have found that the

public has a strong interest in keeping investigatory processes of

publicly funded institutions confidential. (Id.) (citing Humphries, 2022

WL 3107914, at *3; Rosenblit, 2021 WL 288887, at *7; McKenna, 2000

WL 1521604, at *2).

Plaintiff combines his analysis of the seventh Pansy factor with

his analysis of the sixth Pansy factor. (Doc. 28 at 17). As noted supra,

he argues that PSU’s status as a “state-related” university creates a

“strong mandate for transparency” and the public has a profound

interest in PSU’s handling of disability discrimination. (Id. at 17).

Both parties’ arguments as to this final factor are well-taken. The

public has a compelling interest in keeping investigatory processes

confidential. See Rosenblit, 2021 WL 288887, at *7 (the public has an

interest in keeping the [public entity defendant’s] investigatory process

confidential); McKenna, 2000 WL 1521604, at *2 (explaining that the

public has a “wide-reaching interest in maintaining the confidentiality

of these documents that involves protecting people who provide

information to investigators and protecting the investigative process,

itself”); Humphries, 2022 WL 3107914, at *4. Public disclosure of

investigation materials could discourage future complainants and

witnesses from coming forward. Rosenblit, 2021 WL 288887, at *7.

The public also has a strong interest in seeking “unlawful

discrimination eradicated from its public employers because

employment discrimination could be a sign of more widespread

discrimination.” Rosenblit, 2021 WL 288887, at *7; see also McKenna,

2000 WL 1521604, at *2 (“Evidence of discrimination within the ranks

may be an indication of the treatment received by the public at-large.”).

As the Court found in Humphries, based upon the important

competing public interests at stake, we find this last factor to be

neutral. 2022 WL 3107914, at *4.

H. Balancing the Pansy Factors

1. Category 1: Statutorily Protected Information

With respect to Defendants’ argument for protection of documents

covered by FERPA, including pages 7-12, 15-16, 20-21, 23-24, 30-31, 33-

37, 57-78, 80, 83-87, 90, 93, 97-100, 110, 113-115, 152-157, 166-170 of

the OEC Report8, the Pansy factors all either weigh in favor of

protection or are neutral. Accordingly, we will grant Defendants’

Motion for a Protective Order as to this category of documents.

2. Category 2: Plaintiff’s Medical Records

The parties failed to provide us with any meaningful analysis as

to this category of documents. We note that generally, when, as here, a

plaintiff puts his mental and emotional health at issue (See Doc. 24, ¶¶

130, 152, 170, 192), he waives the protection of the doctor-patient

privilege with respect to his medical records. See Hammill v. Twin

Cedars Senior Living, LLC, No. 3:20-CV-231, 2020 WL 5082570, at *2

(M.D. Pa. Aug. 27, 2020). However, courts also recognize plaintiffs’

interest in maintaining the confidentiality of medical records and may

order that such records be produced subject to a confidentiality order.

Id. at *3. Thus, finding that the other Pansy factors do not outweigh

the privacy interests9 attendant to medical records and because

8 As discussed above, certain portions of the OEC Report do not

constitute “education records,” so as to fall within FERPA.

9 We note, however, that the privacy interest in these records

belongs to Plaintiff. To the extent he does not wish for them to be

treated as confidential, he may challenge such designation through the

procedures set forth in the accompanying Order and we expect

Plaintiff failed to provide any argument in opposition to Defendants’

Motion for a Protective Order as to this category, we will grant

Defendants’ Motion for a Protective Order over this category of

documents as unopposed.

3. Categories 3 and 4: The OEC Report and Related

Documents

As to the OEC Report and related documents, all Pansy factors

either weigh in favor of protection or are neutral. Accordingly, we will

grant Defendants’ Motion for a Protective Order as to this category with

the exception of the following portions of the OEC Report: Appendix A:

August 14, 2023, Letter from Eisenberg & Baum regarding Dr. Valente,

Page 82; Appendix F: December 20, 2024, Memorandum from Dean

Kimberly Lawless to Dr. Valente, Pages 101-102; Appendix G: January

6, 2025, Email from Dr. Valente to Dean Kimberly Lawless, Pages 103-

108; Appendix K: February 14, 2025, Dr. Valente’s Complaint in this

matter, Pages 118-144; Appendix M: March 26, 2025, Email from Dr.

Valente to Erik Kochanowski, Pages 148-149; Appendix N: December

20, 2013, Letter from Affirmative Action and Diversity Education Office

Defendants to be guided by this note in responding to any such

challenge.

to Dr. Valente, Pages 150-151; Appendix Q: December 20, 2024, Letter

from Dean Lawless to Dr. Valente, Pages 158-159; Appendix R: January

6, 2025, Dr. Valente email to Dean Lawless, Pages 160-165. Good cause

does not exist to enter a protective order as to those portions of the OEC

Report, as they are already within the public domain or in Plaintiff’s

possession from sources other than Defendants.

4. Category 5: Personnel Files and Related Documents

for Faculty and Staff Other than Valente

As to this category as well, the Pansy factors weigh in favor of

affording protection. Accordingly, Defendants’ Motion for a Protective

Order will be granted as to this category of documents.

5. Category 6: Complaints Raised About Plaintiff by

Students, Faculty, and Staff

The Pansy factors likewise weigh in favor of affording protection

to this category. Accordingly, Defendants’ Motion for a Protective Order

will be granted as to this category of documents.

6. Category 7: Any Documents Pertaining to Current

or Former Students

Because Plaintiff provided no meaningful response to this

category of documents, we deem Defendants’ Motion for a Protective

Order as to this category unopposed. However, we find that this

category is overly broad and Defendants failed to satisfy their burden

that good cause exists for a protective order. The parties should be

guided, in any event, by our analysis as to documents that fall within

the scope of FERPA and are encouraged to work together, going

forward, to try and resolve disputes regarding treatment of such

documents.

7. Category 8: Electronic Communications Among

Penn State Students, Faculty, or Staff (PSU Policy

AD53)

Again, with respect to this factor the Pansy factors weigh in favor

of protection. Accordingly, Defendants’ Motion for a Protective Order

will be granted as to this category of documents.

IV. CONCLUSION

For the reasons set forth herein, Defendants’ Motion for a

Protective Order (Doc. 36) will be granted in part and denied in part.

The Motion is granted with respect to those portions of the OEC Report

protected by FERPA; Plaintiff’s medical records; the OEC Report and

related documents, excluding those portions of the OEC Report

identified above; personnel files of faculty and staff other than Plaintiff;

complaints raised about Plaintiff by students, faculty and staff; and

electronic communications made pursuant to PSU Policy AD53. The

Motion for a Protective Order is denied as to “any documents pertaining

to current or former students.”

We direct the Parties to carefully review the Order filed in

connection with this Memorandum. At this juncture, we decline to

address the propriety or impropriety of attaching any material

designated as confidential to future filings. As the Third Circuit

pointed out in In re Avandia, the common law right of access standard

is distinct from the Rule 26 standard governing confidentiality orders.

924 F.3d at 669. To the extent either party wishes to publicly file

materials designated as confidential, the protocol for doing so is

outlined in the Order. Any party opposing such filing must file a

motion and supporting brief articulating the justification for sealing any

such documents.

Finally, we take this opportunity to advise the parties of our

expectation that they engage in good faith efforts to resolve discovery

disputes without court intervention. Here, both parties took a hardline,

categorical “all-or-nothing approach.” The parties’ briefing reveals that

there were clearly categories of documents that the parties could have

and should have agreed were appropriate for a protective order. For

example, Plaintiff provides no arguments in opposition to Defendants’

request for a protective order over his medical records. Similarly, we

note that while the OEC Report is 186 pages, that length is not

exorbitantly long so as to preclude a more precise analysis. For

example, there can be no credible argument by Defendants that the

twenty-six pages of the OEC report that include a copy of Plaintiff’s

complaint merit the confidentiality provided by a protective order.

Indeed, Defendants’ Proposed Protective Order contemplates as much.

(See Doc. 36-4 at ¶ 4).

Going forward, the Court expects that to the extent there is a

discovery dispute, the parties will engage in a more fulsome, good-faith

effort to resolve it. Where the parties come to an impasse, any dispute

presented to the court should be narrow and fully framed for the court’s

review.

Date: March 6, 2026 s/ Leo A. Latella

LEO A. LATELLA

United States Magistrate Judge