The original court records for juveniles who were sent to Luzerne County detention facilities in the “kids-for-cash” scandal will stay closed, a federal judge ruled this week.

The detention centers agreed in 2009, soon after the civil class-action suit was filed against them, to a protective order limiting the discovery documents that could be disclosed, including the juveniles’ original court records. Those records were expunged in the wake of the scandal that sent two former judges to jail. The detention facilities — Mid-Atlantic Youth Services, PA Child Care and Western PA Child Care — asked the court to allow them to show the records to sanctioned parties in an informal setting rather than through an expensive deposition process.

“I must emphasize that I am hesitant to grant any order that would result in the unnecessary reopening and reinvestigation of the juvenile plaintiffs’ prior convictions,” U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania said in Wallace v. Powell . “Whether a particular juvenile would have been declared delinquent if given due process would require a fair retrial of the juvenile. Such an exercise is inconsistent with the expungement on the basis that the juvenile was denied due process.”

The case arose out of the alleged conspiracy between former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella Jr. and the detention centers in which the judges used their influence to fill the facilities with youths in order to earn the conspirators excessive profits, according to court papers.

Caputo measured his most recent opinion using a test set out by the U.S. Court of Appeals for the Third Circuit, which said that when a court is asked to modify a protective order it must use the same “balancing test” that is used to decide whether or not to grant the order in the first place.

The factors to be weighed include: whether disclosing information would violate someone’s privacy; whether the information sought is for a legitimate purpose; whether disclosing the information will embarrass someone; whether confidentiality is sought regarding information that is important to public health and safety; whether sharing information would promote fairness and efficiency; whether the party benefiting from confidentiality is a public entity or official; and whether the case is important to the public.

The detention centers wanted to be able to show police records and court charging documents to “reported victims, reported witnesses and responding police officers” who had been involved in the juveniles’ arrests, the opinion said, in order to “refresh” their recollections.

“This investigation is crucial to their defense because it allows them to deny both causation and damages by showing that the juvenile plaintiffs would have been incarcerated regardless of the alleged conspiracy,” according to their argument, summarized in the opinion.

Applying the test, Caputo held that allowing the modification would be a “clear violation” of the juveniles’ privacy. The detention centers argued that the youths had forfeited their privacy when they filed suit and spoke to the media, according to the opinion. Caputo disagreed.

“Nothing suggests that the juvenile plaintiffs waived the privacy rights guaranteed by the protective order,” he said.

Likewise, he held that disclosing the material could cause “great embarrassment and possibly emotional trauma by reopening old wounds.”

The juveniles relied on the privacy afforded by the protective order, Caputo ruled, and the detention facilities provided no evidence of factual developments that would justify changing the terms.

However, he held that the detention facilities sought the information for a “proper purpose,” which weighs in their favor, as does the case’s importance to the public.

The fairness and efficiency standard was split, Caputo held. The issue of efficiency “strongly” favored the detention centers, he said, since, if they “were to individually depose every reported victim, reported witness, and responding police officer, it would indeed be time-intensive and costly.”

Fairness, though, tipped the scale toward the juveniles, who argued that the detention centers already have access to the records and it would be unfair to change the order on which they had relied.

“More importantly,” Caputo said, the detention centers “have failed to convincingly demonstrate that an investigation into the factual background of each juvenile plaintiff’s adjudication is necessary to their defense on the issues of causation and damages.”

The question isn’t whether the detention centers’ actions caused the juveniles’ incarceration, but, rather, whether or not they deprived the juveniles of a fair trial, he said. Determining damages by revisiting the initial delinquency charges against the juveniles would require a new trial for each youth, which would “effectively nullify” the determination already made that Ciavarella’s proceedings violated the juveniles’ rights.

“Neither causation nor damages are appropriately evaluated by resurrecting the expunged records of each juvenile plaintiff,” Caputo said.

The opinion is significant, said the juveniles’ lawyer, David Senoff, because discovery standards in federal court are broad and Caputo did not modify the protective order to ease that process for the detention centers. Senoff is with the firm of Caroselli Beachler McTiernan & Conboy in Philadelphia.

The opinion “takes away the blame-the-victim mentality that has permeated this case for a while,” Senoff said.

Bernard M. Schneider of Brucker, Schneider & Porter in Pittsburgh, who represented the detention centers, declined to comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or Follow her on Twitter @SSpencerTLI.

(Copies of the 11-page opinion in Wallace v. Powell , PICS No. 12-0717, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •