UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

ASSOCIATION OF AMERICAN ) 

MEDICAL COLLEGES, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 4:14-cv-72 

 ) 

JOHN DOE, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on the Motion to File Matter Under Seal [DE 2] filed by 

the plaintiff, Association of American Medical Colleges, on November 5, 2014 and the 

Emergency Motion for Expedited Third-Party Discovery [DE 6] filed by AAMC on November 

5, 2014. For the following reasons, the Motion to File Matter Under Seal [DE 2] is DENIED, 

and the Emergency Motion for Expedited Third-Party Discovery [DE 6] is GRANTED. 

Background 

 The Association of American Medical Colleges is a not-for-profit association that 

represents accredited medical schools in the United States and Canada, major teaching hospitals 

and health systems, and academic and scientific societies. Additionally, AAMC sponsors, 

develops, and administers the Medical College Admission Test. The MCAT is a standardized 

computer-based examination used as part of the medical school admissions process. AAMC 

owns all copyrights for the MCAT, the secure contents of the MCAT are trade secrets, and 

AAMC protects the security and confidentiality thereof. 

 Applicants to medical schools and other health sciences graduate degree programs use 

their MCAT scores to gain admission into North American schools. A higher MCAT score helps 
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applicants gain admission into more competitive schools. AAMC administers the MCAT 

multiple times each year throughout the United States, Canada, and selected locations across the 

globe. AAMC recently administered the MCAT at 4050 Britt Farm Drive, Lafayette, Indiana 

47905 on October 21, 2014, October 25, 2014, and November 7, 2014. Applicants are scheduled 

to receive their scores for the October examinations on November 25, 2014 and December 9, 

2014 for the November examination. Furthermore, AAMC may schedule additional MCAT 

administrations at the same test center in the near future. 

 AAMC operates and administers the online electronic registration system that applicants 

use to register for the MCAT. As part of the registration, applicants must consent to certain 

terms and conditions. Applicants must acknowledge that they read, accepted, and agreed to 

terms in AAMC’s Examinee Agreement, which prohibits applicants from engaging in any 

activity that may compromise the validity, integrity, or security of the MCAT. Additionally, 

applicants must agree to the MCAT Terms of Use, which prohibits applicants from pretending to 

be someone else or spoofing a party’s identity. 

 Craigslist, Inc. operates an online service that allows users to submit and browse 

classified advertisements. Craigslist provides anonymous email forwarding that allows users to 

post advertisements while remaining anonymous to responding users. Craigslist’s Terms of Use 

govern the website and incorporate all other site rules. The site rules prohibit any goods, 

services, or content that violates the law or legal rights of others. The primary web address for 

Craigslist is craigslist.org, but Craigslist also maintains other web addresses that include the 

name of the geographic region where postings are organized, such as tippecanoe.craigslist.org. 
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 On or about September 25, 2014, the defendant posted an anonymous advertisement on 

tippecanoe.craigslist.org, the geographic region for Lafayette and West Lafayette, Indiana. The 

ad read as follows: 

Need Someone (Possibly Asian) To Take the MCAT for me (West Lafayette) 

Like the title says I am looking for someone preferably someone who has already 

taken the MCAT who needs a large sum of money if they can get me a high score. 

A fake ID will be made for this occasion and price will can [sic] be negotiated but 

I am looking to pay upwards of $1,500 for an amazing score. 

Complaint at ¶ 29. 

 Another Craigslist user viewed the posting and alerted AAMC. On October 15, 2014, an 

AAMC representative captured an image of the posting, and later that day the post was removed 

from Craigslist’s website. On October 17, 2014, AAMC contacted Craigslist to obtain 

information about the defendant’s identity. However, Craiglist’s counsel advised AAMC that it 

does not disclose personal information about users without a subpoena or other legal process. 

AAMC then reported the matter to federal law enforcement authorities, who may be considering 

a criminal investigation. Thus far AAMC has not identified the defendant. 

 AAMC believes that the defendant registered for a recent MCAT administration or 

intends to register for an upcoming administration. Furthermore, AAMC believes the defendant 

took or intends to take the MCAT via proxy to submit a fraudulent score for admission into a 

medical school or health sciences graduate degree program. 

Discussion 

 AAMC requests the court to order the Clerk to file the instant matter under seal until the 

defendant’s identity is ascertained. Federal Rule of Civil Procedure 26(c) provides that good 

cause must support the sealing of a portion of a pre-trial record. There is a general presumption 

in favor of public access to judicial records. Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 
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(7th Cir. 2006). However, a party may overcome that presumption by a showing of good cause 

to seal the record. Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 

945 (7th Cir. 1999). “When there is a compelling interest in secrecy, as in the case of trade 

secrets, the identity of informers, and the privacy of children, portions and in extreme cases the 

entirety of a trial record can be sealed.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002) 

(citing Citizens First Nat. Bank, 178 F.3d at 945). Courts weigh the interest in secrecy against 

the competing interests on a case by case basis. Jessup, 277 F.3d at 928. 

 AAMC argues that granting public access to this cause’s records may undermine an 

ongoing criminal investigation. In support of that argument, AAMC relies on United States v. 

Smith, 985 F. Supp. 2d 506 (S.D.N.Y. 2013). AAMC admits that it does not appear that a 

federal court within the Seventh Circuit has confronted this issue in a civil context but asks the 

court to follow the reasoning in Smith. 

 In Smith, the government requested a protective order to prevent the disclosure of 

discovery materials to the public. 985 F. Supp. 2d at 530. The government argued that public 

access to the discovery materials would alert possible subjects of the government’s investigation 

and would compromise the government’s ability to ferret out wrongdoing. Smith, 985 F. Supp. 

2d at 531. The court indicated that the government had “the burden of demonstrating, and not 

just alleging” that public disclosure could jeopardize an ongoing investigation. Smith, 985 F. 

Supp. 2d at 531. The court reviewed an ex parte letter in camera and found that the government 

met its burden. Smith, 985 F. Supp. 2d at 531. The court found that the letter adequately 

established both an ongoing investigation into the criminal conduct related to the discovery 

materials and that public disclosure could undermine the investigation. Smith, 985 F. Supp. 2d 

at 531. 
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 As stated above, AAMC has not presented authority for this issue in a civil context or 

from the Seventh Circuit. However, the court finds that even if the court was bound by Smith, 

AAMC has not met its burden to demonstrate that public disclosure would undermine an 

ongoing government investigation. AAMC has indicated that it reported the defendant’s conduct 

to federal law enforcement authorities, but it has not presented evidence that an investigation is 

ongoing. AAMC argues that the defendant, or other parties, may be able to frustrate a potential 

criminal investigation if this court does not seal the case until the defendant’s identity is 

ascertained. Even if that is the case, AAMC first must demonstrate that a criminal investigation 

is ongoing, which it has not done. See Smith, 985 F. Supp. 2d at 531 (“[T]he Government has 

the burden of demonstrating, and not just alleging, that public disclosure...could jeopardize 

ongoing investigations.”). Therefore, the court does not find good cause to seal this cause’s 

record based on the potential to undermine a criminal investigation. 

 Second, AAMC argues that the general rule of grand jury secrecy in criminal cases and 

the justifications to seal grand jury proceedings apply in this case. AAMC cites the Supreme 

Court’s reasoning behind grand jury secrecy to support its argument. See United States v. 

Procter & Gamble Co., 356 U.S. 677, 681, n.6, 78 S. Ct. 983, 986, n.6, 2 L. Ed. 2d 1077 (1958) 

(stating reasons for grand jury secrecy including to prevent the escape of those who may be 

indicted and to encourage free and untrammeled disclosures by parties with information about 

the alleged crimes). AAMC applies the reasons for grand jury secrecy to this case to argue that 

the defendant may be able to destroy evidence or otherwise frustrate any potential criminal 

investigation. However, this court does not find this case to be analogous to a grand jury 

proceeding that requires secrecy, particularly without any evidence that a criminal investigation 

is underway. 
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 AAMC alleges that a criminal investigation may be underway because it notified federal 

law enforcement authorities about the defendant’s conduct. It then asks this court to seal this 

case until the defendant can be ascertained based on that allegation. Without evidence that the 

government has initiated a criminal investigation, this court cannot find good cause to seal the 

present matter and overcome the presumption in favor of public access. 

 AAMC also requests the court to allow it to conduct expedited third-party discovery. 

Federal Rule of Civil Procedure 26(d)(1) provides that “a party may not seek discovery from any 

source before the parties have conferred as required by Rule 26(f), except in a proceeding 

exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by 

stipulation, or by court order.” This matter is not exempt from initial disclosure under Rule 

26(a)(1)(B). See Federal Rule of Civil Procedure 26(a)(1)(B) (listing the proceedings exempt 

from initial disclosure). 

 “A party seeking expedited discovery in advance of a Rule 26(f) conference has the 

burden of showing good cause for the requested departure from usual discovery procedures.” 

Alternative Energy Solutions, Ltd. V. Chico, 2011 WL 3880439, *1 (N.D. Ind. Sept. 2, 2011) 

(quoting Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks Inc., 213 F.R.D. 418, 419 (D. 

Colo. 2003)); see 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 

2046.1, p. 592 (2d ed. 1994) (“Although the rules do not say so, it is implicit that some showing 

of good cause should be made to justify such an order.”). Courts have developed two approaches 

to assess expedited discovery requests. In re Fannie Mae Derivative Litigation, 227 F.R.D. 

142, 142–43 (D.D.C. 2005). 

 The Notaro approach requires the party seeking expedited discovery to demonstrate: “(1) 

irreparable injury, (2) some probability of success on the merits, (3) some connection between 
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the expedited discovery and the avoidance of the irreparable injury, and (4) some evidence that 

the injury that will result without expedited discovery looms greater than the injury that the 

defendant will suffer if the expedited relief is granted.” Notaro v. Koch, 95 F.R.D. 403, 405 

(S.D.N.Y. 1982). The second approach directs courts to decide the request based on its 

reasonableness in light of all the surrounding circumstances. In re Fannie Mae, 227 F.R.D. at 

142. Courts should consider the following factors under the reasonableness test: “(1) whether a 

preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for 

requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; 

and (5) how far in advance of the typical discovery process the request was made.” In re Fannie 

Mae, 227 F.R.D. at 143. 

 Courts within this circuit have declined to apply Notaro in favor of the reasonableness 

approach because the circumstances of the cases before them were distinguishable from those in 

Notaro. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 623–

24 (N.D. Ill. 2000) (declining to apply Notaro because it was inappropriate for the current 

matter); Sheridan v. Oak Street Mortg. LLC, 244 F.R.D. 520, 522 (E.D. Wisc. 2007) (applying 

the “good cause” standard because the circumstances of the case did not warrant the “more 

stringent test of Notaro”). In Notaro, the plaintiffs sought a permanent injunction and expedited 

discovery in lieu of a preliminary injunction hearing. Notaro, 95 F.R.D. at 404. In this case, 

AAMC seeks expedited discovery because it cannot identify the defendant. Therefore, this court 

finds this case distinguishable from Notaro and applies the reasonableness test in this situation. 

 There is no preliminary injunction pending in this matter. AAMC has requested 

expedited discovery to identify the defendant’s name, email address, mailing or IP address, 

phone number, or other information that will allow AAMC to identify the defendant. AAMC 
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requests expedited discovery from third parties because it has not been able to ascertain the 

defendant without the opportunity to request discovery. The defendant will not be burdened 

from the request because AAMC seeks expedited discovery from third parties. The expedited 

discovery request is made in advance of the Rule 26(f) conference, but it is necessary because 

the parties cannot meet for a Rule 26(f) conference until AAMC identifies the defendant. 

Therefore, this court finds AAMC has good cause to conduct expedited discovery under the 

reasonableness test because otherwise it cannot maintain this litigation or identify the defendant. 

See Bicycle Peddler, LLC v. Does 1-12, 295 F.R.D. 274, 276–77 (N.D. Ill. 2013) (finding good 

cause for expedited discovery where the plaintiff only sought identifying information and could 

not otherwise maintain the litigation or identify the defendants). 

 Based on the foregoing reasons, the Motion to File Matter Under Seal [DE 2] is 

DENIED, and the Emergency Motion for Expedited Third-Party Discovery [DE 6] is 

GRANTED. 

 ENTERED this 19th day of November, 2014. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge