From P.D. v. Sullivan, decided last month by Judge Nelson Román (S.D.N.Y.):

Plaintiff seeks to proceed anonymously because the action involves "matters of a highly sensitive and personal nature, to wit, medical and mental health records and information." … There is little question that the instant case involves matters that are highly sensitive and of a personal nature—medical and mental health information are undoubtedly so. Moreover, Plaintiff is suing the Commissioner of the New York State Office of Mental Health in her official capacity, and therefore sues the government rather than a private entity. Furthermore, there is little to no prejudice to Defendant as she has not opposed Plaintiff's request and Plaintiff indicated he would provide his name to Defendant. Finally, Plaintiff's name and identity have been kept confidential from the public to date.

[On the other hand, though] Plaintiff argues that his identification "poses a risk of retaliatory physical and mental harm to Plaintiff, and even more critically, to innocent non-parties including his family members" … this risk of harm is vague and speculative. Plaintiff points to the combined "stigma" of mental health and Second Amendment rights but fails to elaborate on or provide any evidence of this supposed stigma. Nor does Plaintiff specify the nature of these potential harms. Plaintiff claims this is particularly true "within New York State's hostile anti-Second Amendment environment," and the Court is not entirely sure what Plaintiff means….

"… [T]here is a general presumption that parties' identities are public information." As implied by Plaintiff, the Second Amendment has fostered continued debate and discussion among the public in recent years. Accordingly, there will likely be widespread interest in Plaintiff's suit that challenges provisions of the New York State Mental Hygiene Law ("NY MHL") as unconstitutional under the Second and Fourteenth Amendments.

Admittedly, the identities of individuals who sue only the government and raise an abstract question of law may be largely irrelevant to the public's concern with the nature of the process. However, while Plaintiff's claims contest the constitutionality of a statute—certainly an abstract question of law—Plaintiff also argues the statute's constitutionality with respect to his specific circumstances. Plaintiff alleges that NY MHL § 9.39 is unconstitutional "as applied to Plaintiff." Accordingly, although the action appears to involve purely legal questions, disputes of fact may arise as the litigation progresses.

Finally, there are alternative mechanisms available to Plaintiff. "A plaintiff's confidentiality can be protected in multiple ways, including redaction of the documents and sealing, seeking a protective order, or entering into a confidentiality agreement." Accordingly, with regards to Plaintiff's argument that anonymity will create more transparency, the Court is confident that the parties can find a middle ground where the public has access to all pertinent information without the need for Plaintiff to proceed anonymously…. "Redacted and sealed submissions are routinely used in cases involving sensitive medical information." … "The fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Plaintiff's Amended Complaint claims that he was admitted to a hospital under N.Y. Mental Health Law 9.39 "for emergency observation and evaluation"; that law provides for brief commitment for "mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." But plaintiff states that he "consistently denied any suicidal ideation during his admission," and that "[b]y discharging Plaintiff and not converting Plaintiff's admission to an involuntary commitment under Article 9, the mental health professionals at [the hospital] determined that Plaintiff was not a danger to himself or others." Likely to produce an interesting legal debate; at this point, the court concluded only that the case to be litigated going forward under plaintiff's name.

The post No Pseudonymity in Case Challenging Denial of Gun Rights Based on Alleged Mental Health Problems appeared first on Reason.com.

From Doe v. U.S., decided yesterday by Judge Mary Kay Vyskocil (S.D.N.Y.):

Plaintiffs allege that for over two decades, the Federal Bureau of Investigation … allowed [Jeffrey] Epstein and others to sex traffic and sexually abuse children and young women by failing to investigate the reports, tips, and evidence it had of "rampant sexual abuse and sex trafficking by Epstein."

Plaintiffs sought leave to proceed under pseudonyms, but the court said no (note that at this stage there is no discussion yet of whether plaintiffs can sue FBI on this sort of failure-to-investigate theory):

Plaintiffs here allege that due to the FBI's failure to take appropriate action to investigate Epstein, they continued to be "sexually abused, raped, assaulted, tormented, violated, harassed, [and] intimidated," among other trauma. The Court agrees that Plaintiffs' allegations of sexual assault are "highly sensitive and of a personal nature," and, thus, the first factor of Sealed Plaintiff weighs in favor of anonymity. However, this factor is not dispositive. Courts in this district have explained that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." Indeed, courts have denied motions to proceed under a pseudonym in similar circumstances….

Plaintiffs [also] argue that these factors weigh in favor of anonymity because "identification poses a further risk of mental harm." They assert that their experiences are "deeply traumatic" and "[p]laying out those experiences in a public forum would retraumatize them." Specifically, they argue that "certain Plaintiffs have sought out mental health treatment in connection with the abuse described in the complaint and would certainly experience additional significant harm if [they are] forced to reveal [their] identity to the public."

However, Plaintiffs' allegations of potential harm are too speculative and insufficient to outweigh the presumption in favor of openness in judicial proceedings. "The risk of psychological injury stemming from identification is a cognizable harm that can serve as a legitimate basis for proceeding anonymously." However, the potential injury alleged must be more than "mere embarrassment" or "social stigmatization." For example, a court in this Circuit allowed a plaintiff to proceed anonymously when she "provided specific evidence from medical professionals predicting that revelation of her identity would likely 'cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.'"

The Court acknowledges Plaintiffs' allegation, in the Complaint, that as a result of Defendant's purported negligence, they suffered, inter alia, "post-traumatic stress disorder, insomnia, anxiety, shock, fear, nightmares, shame, embarrassment, loss of enjoyment of life, flashbacks, [and] need for future medical and psychiatric expenses." These have, apparently, already occurred. However, nothing in the Complaint nor Plaintiffs' motion reference "[t]he risk of psychological injury stemming from identification."

Moreover, Plaintiffs "must base their allegations" of mental harm "on more than just 'mere speculation.'" Indeed, a court in this District explained that, although a plaintiff specifically alleged that she suffered from post-traumatic stress disorder and that her condition would be exacerbated by disclosure of her identity, the plaintiff did not provide "any medical corroboration," and the court could not "speculate" about the nature and severity of any mental injury from disclosure.

Plaintiffs broadly argue that if their identities were publicly disclosed, they "would certainly experience additional significant harm" and "retraumatize them." Without corroboration from medical professionals, however, their general allegations of potential trauma are "mere speculation" about a potential and conclusory risk of psychological injury that cannot support their motion to proceed anonymously. Likewise, the declaration of Plaintiffs' counsel which states, "I represent to the court that certain Plaintiffs have sought mental health treatment in connection with the abuse described in Plaintiffs' complaint," falls short of the "medical corroboration" necessary to support a motion to proceed anonymously.

Plaintiffs also briefly allude to a concern of retaliatory harm because the co-conspirators who participated Epstein's trafficking operation had, and continue to possess, "tremendous wealth and power and have demonstrated a clear ability to cause them all serious harm." However, Plaintiffs' unsupported theory that unspecified and unknown alleged "co-conspirators" may cause them "serious harm" is too speculative to support their motion. Moreover, this action is not brought against Epstein's estate or any other alleged co-conspirator. This action is brought against the United States of America. While the Court hardly thinks such a warning is necessary, the Court admonishes counsel for the United States, to refrain from any action that would substantiate this allegation. As in any action, any effort to tamper with any party or witness in this case will be met with severe consequences.

Additionally, the Court notes that even when a defendant's "notoriety will likely cause [a] case to attract significant media attention," plaintiffs' concerns about "public humiliation and embarrassment" generally are "not sufficient grounds for allowing [them] to proceed anonymously." Instead, as the Court explains below, the public's interest in allegations against Epstein (a widely-known figure) including the identities of his accusers, weigh against granting Plaintiffs' motion….

Plaintiffs do not allege that they are currently minors, nor do they provide any allegation with respect to their age more generally in their Complaint. While the Complaint very broadly states that "[a]ll causes of action arose from 1996 and continued until 2019," the Complaint provides no insight into how old the Plaintiffs were when the alleged abuse occurred. As such, Plaintiffs have not identified any reason for the Court to treat them as more vulnerable than the great run of adult plaintiffs who bring allegations of sexual assault in their own names, subject to public scrutiny….

Plaintiffs [also] argue that the United States would not be prejudiced if Plaintiffs litigate their claim anonymously because "[t]his is not a case in which the Defendant will not know the Plaintiffs' identity." Specifically[,] Plaintiffs state that counsel "will confidentially disclose Plaintiffs' name[s] to counsel for the Defendants." They argue that, as a result, "Plaintiffs' anonymous status will not impact any aspect of Defendant's ability to take discovery."

The Court does not accept Plaintiffs'"mere speculation," that proceeding under pseudonyms "will not impact any aspect of Defendant's ability to take discovery." For example, the United States may need to disclose Plaintiffs' names to at least some third parties if the United States intends to take non-party depositions. Moreover, "this unorthodox arrangement still runs against the public's traditional right of access to judicial proceedings." …

[C]ourts are open forums to which the public has a right of access. Plaintiffs cannot expect to litigate their claim in court without the underlying facts of the case, including their identities, being accessible to the public…. "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties." There is great public interest in not only the allegations against Epstein, but also in the identities of his accusers, and the government's investigation into his sex trafficking operation. In other words, this is not a case that involves "abstract challenges to public policies, but rather … particular actions and incidents."

Thus, "open proceedings … benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Indeed, it is the kind of case that "further the public's interest in enforcing legal and social norms." Plaintiffs argue that the public "has a [] greater interest in knowing who is accused of sexual abuse and where the abuse is alleged to have occurred than any interest in knowing the specific identity of a victim." Plaintiffs go on to urge that "the sensitive and personal nature of Plaintiff's [sic] allegations of sexual assault and the likelihood of further psychological injury overcomes any presumption of openness." "It may be, as plaintiff[s] suggest[], that victims of sexual assault will be deterred from seeking relief through civil suits if they are not permitted to proceed under a pseudonym. That would be an unfortunate result. For the reasons discussed above, however, plaintiff[s] and others like [them] must seek vindication of their rights publicly." …

Some federal courts have been more open than others to allowing alleged sex assault victims to sue pseudonymously (see pp. 1430-37 of The Law of Pseudonymous Litigation), but courts in the Southern District of New York have been especially hesitant to allow this.

The post No Pseudonymity for Alleged Jeffrey Epstein Victims Suing FBI Over Failure to Properly Investigate Epstein appeared first on Reason.com.

From Judge Linda Parker's opinion Thursday in U.S. v. Markovitz (E.D. Mich.); the defendant is the author of Topless Prophet: The True Story of America's Most Successful Gentleman's Club Entrepreneur, though the criminal case appears unrelated to the book:

Charles Blackwell initiated this miscellaneous action to unseal the sentencing memoranda in the criminal proceedings against Defendant Alan Markovitz in Case No. 23-cr-20058. In the criminal matter, Markovitz pled guilty pursuant to a Rule 11 plea agreement to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(2). Prior to sentencing, only the United States filed a sentencing memorandum. The memorandum was sealed pursuant to an order granting the government's motion to seal—both of which were also sealed. Markovitz delivered a letter to the Court prior to sentencing, which was never filed on the docket….

Blackwell seeks to unseal the sentencing "memoranda," arguing that the public has a common law and First Amendment right to access. Blackwell further argues that the sealing of the records was done procedurally and substantively in violation of Sixth Circuit case law, specifically In re Knoxville News-Sentinel Co. (6th Cir. 1983). Blackwell points out that no motion to seal the records was ever filed on the public docket in the criminal matter, and he argues that the complete sealing of the documents suggests that efforts were not made to narrowly tailor the non-disclosure.

In response, the United States suggests that Blackwell has no right to "intervene" to seek the unsealing of the documents at issue. The United States then argues that its sentencing memorandum was properly sealed because it contained "sensitive information that could implicate the safety of an individual." The United States acknowledges that there is only one paragraph in its memorandum containing sensitive information; however, it maintains the entire memorandum was sealed "because it gave context to the sensitive information." Nevertheless, the United States offers to file a redacted sentencing memorandum which balances the need to protect the sensitive information and the public's right to access.

Markovitz has not responded to Blackwell's request….

It is well established that the public and press have a [presumptive] right to access court proceedings and records, which is protected by the common law and the First Amendment…. Courts have found a presumption of public access to sentencing memoranda…. "[S]entencing memoranda, which bear directly on criminal sentencing in that they seek to influence the judge's determination of the appropriate sentence, fall squarely into the category of materials that a court relies on in determining central issues in criminal litigation." Further, "[s]entencing memoranda, which contain the substance of the parties' arguments for or against an outcome, are clearly relevant to a studied determination of what constitutes a reasonable punishment."  Thus, "[p]ublic access to sentencing memoranda is consonant with the values animating the common law right." "Access … allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty[,] and respect for our legal system." {In comparison, presentencing reports (PSRs) and objections to PSRs "occupy a unique position that falls outside the scope of both the First Amendment and the common law rights of access."}

The Sixth Circuit has held that the public must be given a reasonable opportunity to be heard before a court excludes access to proceedings or documents to which a right to access attaches. The court then indicated that "[i]n order to protect this right to be heard, the most reasonable approach would be to require that motions to seal be docketed … 'sufficiently in advance of any hearing on or disposition of the motion to seal to afford interested members of the public an opportunity to intervene and present their views to the court.'" {This language disposes of the government's assertion that a member of the public, like Blackwell, lacks standing to intervene to object to or seek the unsealing of court proceedings or records.} The Sixth Circuit advised district courts to "allow interested members of the public a reasonable opportunity to present their claims, without causing unnecessary or material delay in the underlying proceeding." …

The party seeking to limit public access to court proceedings or records bears the burden of overcoming the presumption of openness. "The burden is a heavy one: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" …

The process followed when sealing the United States' sentencing memorandum and accepting Markovitz' pre-sentencing letter did not adhere to the openness required under Sixth Circuit precedent. In light of the parties' agreement to seal the government's memorandum, the Court neglected to consider the public's interest in transparency and open access to court records. The United States was not held to its burden of showing a compelling reason to seal this filing. No explanation was provided for why restricted access was being requested and granted for the memorandum—particularly the entire document.

The Court, therefore, believes these sentencing materials should be unsealed—and first filed, in the case of Markovitz' letter. Before doing so, however, the Court will provide the United States and Markovitz the opportunity to show that compelling reasons justify sealing materials in their respective submissions. To do so, they shall submit renewed motions to seal which comply with Sixth Circuit precedent and the Local Rules for the Eastern District of Michigan. The failure to file such motions within fourteen (14) days of this Opinion and Order will result in the memorandum and letter being placed on the public docket….

Blackwell, by the way, is the successful defendant in a restraining order case that I wrote about last year.

The post District Court Unseals Sentencing Memorandum in Case Involving Detroit's "Topless Prophet" appeared first on Reason.com.

From the Fifth Circuit's decision yesterday in Sealed Appellant v. Sealed Appellee, a per curiam signed by Chief Judge Priscilla Richman and Judges Edith Jones and James Ho:

Plaintiff sued Defendant for allegedly posting explicit pictures of Plaintiff online and otherwise harassing Plaintiff and her family. Plaintiff and Defendant have since settled, but we must still address whether the district court abused its discretion by unsealing the case. Because the district court applied an incorrect standard for determining when judicial records may be sealed, we vacate and remand….

Plaintiff and Defendant engaged in an affair for approximately a year. Plaintiff ultimately ended the affair. She alleges, however, that Defendant retaliated by harassing Plaintiff and her family, including by posting sexually explicit images of Plaintiff online. Plaintiff sued Defendant for public disclosure of private facts and intrusion on seclusion, later amending her complaint to also include claims against the adult websites Defendant allegedly used to post explicit images. Plaintiff requested and received both a temporary restraining order and a temporary injunction against Defendant.

After she filed her original complaint and the district court granted the TRO, Plaintiff moved to seal the case, citing the "nature and content of documents on file," the "anticipated filing" of exhibits "depicting pornographic images" and "sexually-related texts and messages," and "reference[s] … in pleadings or materials on file" to Plaintiff's family, including her daughter. The district court granted the motion, ordering that all pleadings and documents on file in the case—including all future filings—be sealed.

Nonetheless, some case documents were published online on legal websites and databases. When Plaintiff discovered this, she asked the district court to issue an order preventing the websites from publishing the information. Defendant opposed the motion and moved to unseal the case. The district court denied Plaintiff's motion to prevent publication, but it also denied Defendant's motion to unseal, noting that the case would remain sealed with attorney-only electronic access. Defendant later moved again to unseal. The district court largely denied this request, granting only in part to allow parties and attorneys electronic access to certain documents but continuing to completely restrict public access.

Professor Eugene Volokh then moved to intervene. Volokh is a law professor who specializes in the First Amendment and desires to write about this case. He explained that this case came to his attention after one of the district court's orders turned up in a scheduled daily Westlaw search for cases mentioning sealing and the First Amendment. Volokh sought permission to intervene so he could move to unseal.

The district court vacated its sealing order and ordered that all filings be unsealed. The district court stated that it originally granted Plaintiff's motion to seal primarily on the basis that some filings would include "lewd or graphic sexually explicit photographs." However, the district court explained that, after evaluating each document line-by-line, the filings for the most part reflected "procedural and administrative information" and did not justify sealing. Nor did any filings contain information that was "lewd or graphic." In addition, though the allegations in the parties' pleadings contained "unpleasant, embarrassing, and distasteful information," the parties' claims and counterclaims contained nothing "sufficiently lewd or graphic" to merit sealing them. The district court also warned Defendant that he could not "file any documents that contain[ed] lewd or graphic information about Plaintiff."

Plaintiff appealed. She has since settled her claims against Defendant, but we must still determine whether the case should remain under seal. The district court stayed its unsealing order pending appeal. This court additionally granted Plaintiff's motion to seal the appeal.

The public has a common law right of access to judicial records. "Judicial records are public records." Public access serves important interests in transparency and the "trustworthiness of the judicial process." Sealing judicial records is therefore "heavily disfavor[ed]."

This right of access, however, is "not absolute." "Every court has supervisory power over its own records and files," and, when appropriate, courts may order that case documents be filed under seal. To determine whether a judicial record should be sealed, the court "must undertake a case-by-case, document-by-document, line-by-line balancing of the public's common law right of access against the interests favoring nondisclosure." Because of the court's duty to protect the public's right of access, the district court must balance these interests even if the parties agree to seal records. Sealing documents should be the exception, not the rule.

In Nixon v. Warner Communications, Inc., the Supreme Court observed that courts have denied access to judicial records when those files "might have become a vehicle for improper purposes," such as when records are "used to gratify private spite or promote public scandal." This certainly includes lewd or graphic images. But "lewd or graphic" material does not constitute the upper limit for what courts may seal or redact. Of course, courts may not seal information merely because it could "lead to a litigant's embarrassment." {Nor is a nonparty child's potential embarrassment sufficient to justify sealing information about his or her parents. Such a rule would swallow the general presumption against sealing.} Many cases of a sensitive nature are typically open to the public. However, a standard that rests solely on whether material is "lewd or graphic" is underinclusive.

That said, public information cannot be sealed. And the district court must also consider whether alternative measures, such as redaction or pseudonymity, would instead sufficiently protect the privacy interests at issue.

Like with sealing and redaction, the pseudonymity analysis requires the court to balance the private and public interests—even if the parties agree to stay anonymous. Not many federal appellate courts have yet addressed pseudonymity in the context of revenge pornography. However, there is "no hard and fast formula for ascertaining whether a party may sue anonymously," and "[t]he decision requires a balancing of considerations calling for maintenance of a party's privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings." Parties may not "proceed anonymously based on generalized concerns." And courts should reevaluate pseudonymity as the litigation moves along.

In vacating its sealing order, the district court correctly concluded that this case should not be sealed on a wholesale basis. However, the district court then applied a standard that too narrowly defined the privacy interests that could justify sealing, and it failed to explain why any other asserted privacy interests did not outweigh the presumption of public access.

At minimum, all filings should be redacted for consistency with Federal Rule of Civil Procedure 5.2(a), which generally requires parties to partially redact information such as Social Security numbers, financial account numbers, birth dates, and names of minor children. In this case, it is also clear that the balance of interests favors redacting material such as the names of any additional family members, along with addresses and any other contact information for Plaintiff and her family.

If Plaintiff desires any additional material sealed or redacted, on remand she should identify each specific document or piece of information and explain why each satisfies the analysis described above. {For example, at oral argument, Volokh stated that he would not object to redacting pictures of Plaintiff. Plaintiff has also pointed to material about Plaintiff's husband and daughter in Defendant's discovery requests.}

The district court should also consider whether this case merits allowing Plaintiff to use a pseudonym—even retroactively—and whether Plaintiff timely filed her motion to seal. At oral argument, Volokh stated that he has no objection to retroactively pseudonymizing the record. { Volokh added the caveat that pseudonymizing the record would not require him to pseudonymize his own writings to the extent that information about this case is already in the public domain. See, e.g., Fla. Star v. B.J.F. (1989) ("[W]here a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.").} As discussed above, however, the parties' consent does not end the analysis when determining whether pseudonymization is appropriate. Instead, the court must conduct its own balancing of the public and private interests at stake. We express no view on that issue, leaving it for the district court to address in the first instance.

We vacate the district court's unsealing order and remand to the district court for proceedings consistent with this opinion. {Nothing in this opinion merits sealing or redaction. It will therefore be made available to the public. Nor should the appellate briefs be sealed. Before the appeal is unsealed, however, Plaintiff may propose specific redactions in light of this opinion.}

I will write about some of the orders below that I think raised interesting First Amendment questions, but that will of course wait until the final decision from the district court about just what details will need to be redacted, in light of the Fifth Circuit's opinion. Note that my position is that I don't personally object to retroactive pseudonymization in this case, though I am not certain that such retroactive pseudonymization is legally authorized.

Thanks to my students Alice Carli, who worked on the brief, and Nora Browning, who split oral argument time with me at the Fifth Circuit; and thanks as always to Scott & Cyan Banister for their general support for my UCLA First Amendment Clinic.

The post Revenge Porn Dispute Can't Be Completely Sealed appeared first on Reason.com.

From yesterday's decision by Judge Jessica Clarke (S.D.N.Y.) in Doe v. Combs:

Plaintiff alleges that Combs, Pierre and the Third Assailant … gang raped her when she was {17 years old} [and under the influence of drugs and alcohol they supplied] …. The Court recognizes that public disclosure of Doe's identity could have a significant impact on her, particularly given the graphic and disturbing allegations in this case. While the Court does not take Plaintiff's concerns lightly, the Court cannot rely on generalized, uncorroborated claims that disclosure would harm Plaintiff to justify her anonymity. Without more specific support, Plaintiff fails to overcome the prejudice to Defendants and public interest factors implicated here.

Indeed, similar motions to proceed anonymously in sexual assault lawsuits involving public figures, including Kevin Spacey and Harvey Weinstein, were likewise denied…. The Court, however, stays the effect of this Order until after the Court decides Defendants' pending motion for judgment on the pleadings….

This case concerns highly sensitive and personal matters, including allegations that Defendants trafficked, drugged and gang raped Doe. Although Plaintiff is now an adult, she was a minor when the alleged incidents occurred, making the case particularly sensitive…. [And] other than informing Defendants of her identity, Doe has not publicly revealed her identity related to these allegations.

Although these factors weigh in Plaintiff's favor, they are not dispositive. See, e.g., Doe v. Weinstein (S.D.N.Y. 2020) ("Courts in this district have explained that allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym."); Rapp v. Fowler (S.D.N.Y. 2021) (denying plaintiff's motion to proceed anonymously in action involving Kevin Spacey's alleged sexual abuse of plaintiff when he was a minor). And every other factor, as described below, weighs against Plaintiff maintaining her anonymity for the entirety of this action….

Where a plaintiff claims that disclosure will harm that person's mental health, courts in this Circuit look for corroboration from medical professionals that detail the risk to plaintiff. That corroborating evidence must detail how revealing plaintiff's name in particular, as opposed to the trauma that could occur through reliving the experience through litigation, would cause harm.

Here, Doe has failed to identify any particularized harm that revealing her identity would cause. She claims only generally and without corroboration that she will suffer trauma if her identity is revealed and she becomes the focus of media attention…. As in Doe v. Skyline Autos. Inc. (S.D.N.Y. 2019), "Plaintiff simply projects generalized harm, and more is required for her to satisfy her burden." Her conclusory assertions fall short of demonstrating the particularized harm she would suffer as a result of disclosure….

The fact that a plaintiff was a minor at the time of the alleged harm, alone, [does not sufficiently weigh in her favor]. Here, although Plaintiff was a minor when the assault allegedly occurred, she is now an adult in her late 30s. She fails to identify any other, relevant vulnerabilities….

[Moreover,] "[f]undamental fairness suggests that defendants are prejudiced when required to defend themselves publicly … while plaintiff make[s] accusations from behind a cloak of anonymity."

In this case, the most significant form of prejudice to Defendants in the Court's view is the discovery disadvantage that Plaintiff's anonymity would present. A plaintiff who levies serious allegations "puts [her] credibility in issue." In such a situation, when one party is anonymous while others are not, there is an "asymmetry in fact-gathering." This asymmetry is more profound in cases involving substantial publicity, because "information about only one side may come to light as a result."

Plaintiff's own complaint demonstrates how this imbalance could play out. Doe references previously-filed public lawsuits against Combs and Pierre, including one against Combs by Cassie. In describing Cassie's suit, the Complaint asserts that almost immediately after her allegations became public, witnesses with relevant knowledge about Combs came forward to corroborate her claims. Permitting Plaintiff to remain anonymous undermines Defendants' ability to discover relevant information about Plaintiff. This is especially true, as Plaintiff herself acknowledges, in a case like this that happened decades ago where evidence and witnesses may be difficult to find….

Plaintiff identifies the public interest in protecting sexual assault victims so that others will not be deterred from reporting crimes. The Court agrees that this is certainly a public interest; however, this has been "repeatedly rejected by courts in this District as an adequate basis by itself to warrant anonymity." Doe v. Telemundo Network Grp. LLC (S.D.N.Y. 2023).

Furthermore, the public's interest in protecting sexual assault victims is not the only interest implicated here. There is also a public interest in the accused being able to publicly confront an accuser, a right that would be undermined by Plaintiff's anonymity. The public also has a legitimate interest in knowing the underlying facts of a litigation, including the identities of litigants….

Further, the Court could not find a case in this Circuit—and Plaintiff fails to point to one—with similar allegations where a plaintiff's opposed motion to proceed anonymously was granted. While Plaintiff relies on Doe v. Black (S.D.N.Y. 2023) to support its position, that case is readily distinguishable. There, as counsel for Plaintiff is aware, Defendant did not oppose the motion and as a result, pointed to no prejudice in the plaintiff proceeding anonymously. After "according substantial weight to the fact that Defendant [did] not oppose Plaintiff's request," the Court in its discretion granted the motion at the outset of the litigation. See also Doe v. Gooding (S.D.N.Y. 2021) (granting plaintiff's motion to proceed anonymously without prejudice to future objection where the defendant failed to appear to oppose the motion); Trooper 1 v. N.Y. State Police (E.D.N.Y. 2022). The Court declines to do so here where Defendants vigorously oppose the request, identify prejudice they would suffer as a result and where Plaintiff fails to point to specific harm to overcome these factors.

The Court will, however, stay the effect of this Order until after the Court decides the pending motion for judgment on the pleadings. If the Court were to dismiss this action, it would do so for a purely legal reason, where Plaintiff's identity is irrelevant to that decision. Furthermore, the prejudice to Defendants here is at its greatest if this matter were to proceed to discovery. Therefore, if this action survives a decision on Defendants' motion, Plaintiff shall pursue this action using her legal name….

Note that courts are split on all these issues, including in sexual assault cases (as I lay out in The Law of Pseudonymous Litigation, especially Appendices 2a & 2b); some other judges would likely agree with this decision, while others would likely disagree.

The post No Pseudonymity for Woman Suing Alleging Rape by Sean "Diddy" Combs appeared first on Reason.com.

From today's Fourth Circuit opinion in Doe v. Sidar, written by Judge Toby Heytens and joined by Judges Robert Bruce King and J. Harvie Wilkinson:

A woman sued a man for sexually assaulting her and used a pseudonym throughout discovery. After the man refused to comply with its discovery orders [including by failing to provide a DNA sample], the district court entered a default judgment against him and ordered the woman to use her real name going forward. The woman appeals the district court's non-anonymity order …. [W]e hold the district court committed legal error by understating the woman's interest in anonymity, appearing to announce a general rule that fairness considerations invariably cut against allowing a plaintiff to be anonymous at trial unless the defendant is also anonymous, and failing to recognize the significance of its default judgment on liability….

Because the district court entered a default judgment on liability, we treat it as conclusively established that Cenk Sidar raped Jane Doe in London in September 2017. As this Court has explained, "[t]he legal effect of a default judgment is that the defendant is deemed to have admitted the plaintiff's well-pleaded allegations of fact … and is barred from contesting … the facts thus established." …

The trial court refused to allow Doe to proceed pseudonymously, and the Fourth Circuit held that this decision was mistaken. The Circuit acknowledged that pseudonymity is an exception, available only in rare cases. But it noted that lawsuits brought by rape victims are one category of cases in which plaintiffs can often proceed pseudonymously, to protect their privacy. And it held that the trial court wrongly concluded, among other things, that one-sided pseudonymity—pseudonymity for plaintiff when the plaintiff has named the defendant—is impermissible:

[The] entry of a default judgment tipped powerfully in Doe's favor…. That Sidar has already been found liable for raping Doe and that further proceedings will be limited to determining the damages he must pay significantly reduces any "risk of unfairness to" Sidar resulting from Doe's continued anonymity.

To see why, consider two sources of potential unfairness when a plaintiff seeks to proceed anonymously while making allegations against a known defendant. For one, there is a concern that anonymity may serve as a "shield behind which" false or "defamatory charges may be launched without shame or liability," thus creating the risk a blameless defendant will suffer embarrassment and reputational damage merely by being sued. There is also the one-sidedness of allowing a plaintiff to "have [their] cake and eat it too" by gaining the ability to stay anonymous if they lose—thus avoiding reputational harms from disclosing the underlying facts or bringing an unsuccessful lawsuit—while retaining the power to reveal their identity if they win.

Those risks evaporate once liability has been established. At this point, Doe is not seeking to keep her identity secret because she fears she might lose this case. There is also no risk Sidar's reputation will be damaged by false accusations of wrongdoing. The district court's default judgment conclusively establishes that Doe is a victim and Sidar raped her, and nothing that happens at a damages-only trial can change that.

The district court's default judgment also reduces the risk that Sidar would suffer any unfair prejudice at trial. Where liability has not been established, there is at least some risk that jurors may view a decision to let one side proceed anonymously as suggesting that the anonymous party's claims are valid or that it has the better case than the non-anonymous party. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); see also Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). But any such concerns are weakened—if not eliminated—here because the jury will have no need to guess about the court's view of the merits of Doe's claims. Instead, the court will tell the jury that Doe's claims succeed as a matter of law and that the jury may not revisit that issue. It is hard to see how Sidar will suffer any extra prejudice from letting Doe use a pseudonym in a case where the jury will be told it must take as a given that he raped her….

The court didn't opine about how the privacy interests of the rape victim would stack up against the concerns about fairness to the defendant in the more typical scenario, where there was no judgment of liability against the defendant (as indeed there wasn't for the first stage of this very case). But Judge J. Harvie Wilkinson's concurrence made the argument against one-sided pseudonymity in at least many such cases:

I appreciate especially [the majority's] recognition of the potential for pseudonymous litigation to "undermine[] the public's right of access to judicial proceedings" and how "disclosing the parties' identities furthers openness of judicial proceedings."

Transparency is not only important for its own sake. It is integrally linked to the need of courts to maintain public trust. We are reliant in the first instance on the executive to enforce our judgments. And ultimately, we are reliant on the public's trust in the process by which those judgments are reached.

To reduce litigants to "Does" and initials risks making of them stick figures and algebraic symbols. To forsake real names is to put the judicial process at one more remove from the flesh and blood of life.

In pointing out the virtues of transparency, I do not intend to downplay the privacy interests of those who have experienced sexual assault. There are few crimes so violative of human autonomy and dignity as rape. And insult compounds this injury as victims of this heinous crime are often stigmatized through no fault of their own. District courts must retain discretion to protect the privacy of those who have suffered such an offense.

But pseudonymity generally, and one-sided pseudonymity particularly, is not without its risks. Indeed, those accused of crimes can suffer reputational damage even when a court later finds that the accusations were unfounded. Allowing one party to proceed anonymously increases the potential for abusive suits that use the threat of reputational damage to exact revenge or to extract settlements from innocent parties. Having one party incognito but not the other can tilt the scales of justice in the direction of guilt by anonymous accusation, a prospect which would be just as abhorrent to civil litigation as it is to our criminal justice system.

In the criminal context, a third party, the government, must conclude there is enough grounding to an accusation to warrant prosecution. In the civil context, this third-party filter is generally absent. Pseudonymity may enhance the incentives for well-founded complaints to be filed, but it may also serve as a cover for actions that tarnish the innocent. Just as district courts must have the discretion to protect victims' need for privacy, they must also retain the discretion to prevent pseudonymous abuse.

I concur in the majority opinion because it eschews a categorical approach to case- sensitive questions which cannot be answered categorically. The majority is also right to emphasize the importance of the default judgment here. Simply put, the defendant is a rapist in the eyes of the law. While a trial as to damages might reveal further details to the defendant's detriment, the defendant has impaired his claim to reputational damage by defaulting on liability. These limiting features in the majority's fine opinion persuade me that it has not locked the names of litigants behind closed doors to the disservice of that transparency that alone earns us public confidence and trust.

This is the first appearance of the phrase "one-sided pseudonymity" in any Westlaw-accessible document (other than my amicus brief on my own behalf in this case, which basically agreed with the approach set forth by Judge Wilkinson's concurrence). I hope that it, and citations to Judge Wilkinson's concurrence, will appear in many more such cases—I think it captures an important problem, for the reasons given in the concurrence and in the brief. Here again is the Summary of Argument from the brief, for those interested in the issue:

In deciding this case, this Court ought to be attentive to the costs of one-sided pseudonymity in sexual assault cases—generally, when a plaintiff seeks to sue pseudonymously, but names the defendant. This brief does not take a categorical position on whether such one-sided pseudonymity should always be forbidden in sexual assault cases, but it does seek to explain why there may be an especially strong presumption against it.

In particular:

[1.] While plaintiffs in many cases are understandably concerned that being identified as (for instance) an alleged sexual assault victim is stigmatizing, defendants' being identified as an alleged sexual assaulter is at least as stigmatizing.

[2.] Some plaintiffs may be deterred from filing even meritorious lawsuits, for fear that being publicly identified will damage their reputations—for instance, stigmatize them as litigious employees—or, especially in sexual assault cases, will compromise their privacy. Pseudonymity for plaintiffs is sometimes defended as diminishing this risk. But defendants may be equally deterred from raising even meritorious defenses (such as "I did not do it," or "any sexual behavior was consensual"), for fear that being publicly identified will damage their reputations—especially when defending the lawsuit, rather than settling before it is filed, stigmatizes them as alleged rapists. The case for pseudonymity for sexual assault defendants thus stands on roughly the same footing in this respect as the case for pseudonymity for sexual assault plaintiffs.

[3.] One-sided pseudonymity can also be unfair to the nonpseudonymous sexual assault defendant because of how it affects the process of litigation. One-sided pseudonymity can change the settlement value of a case. Party-witnesses' pseudonymity may diminish their incentives to tell the whole truth. Party pseudonymity may also prevent other witnesses from coming forward. And allowing one party to proceed pseudonymously may signal to the jury that the other party is dangerous and thus perhaps culpable.

To be sure, one possible solution to the problem—mutual pseudonymity—interferes with the public's right of access to court proceedings even more than one-sided pseudonymity does. But on balance, the unfairness of one-sided pseudonymity should generally cut against allowing such pseudonymity, whether or not the optimal solution for a case would be mutual pseudonymity or no pseudonymity.

[4.] In this particular case, where defendant Sidar has already been determined to be liable because of his refusal to provide a DNA sample, there may be reason for this Court to be less concerned about his interests than about Jane Doe's interests. But if this is the basis for this Court's decision, this Court should stress that it is relying specifically on this unusual feature of the case, and is not deciding in favor of one-sided pseudonymity more broadly.

And the Argument:

[I.] Being identified as a litigant risks stigma to defendants as well as to plaintiffs

There is of course a strong presumption against pseudonymity, which can be overcome only "in exceptional circumstances." Doe v. Public Citizen, 749 F.3d 246, 273 (4th Cir. 2014). When such circumstances are present is a complicated question, on which court decisions are unsettled. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353 (2022). Indeed, court decisions are sharply split even on the specific question whether sexual assault plaintiffs may proceed pseudonymously. See id. at 1430-37 (cataloging cases).

But to the extent that courts are concerned that naming a party should be avoided, because such naming would cause stigma, that concern often arises for defendants as much as for plaintiffs. That is especially so in sexual assault cases. Regrettably, being identified as an alleged sexual assault victim does indeed stigmatize the plaintiff in some measure (though one hopes this is less so today than it was in past decades). But of course being identified as an alleged sexual assault perpetrator stigmatizes the defendant at least as much, and likely more. Indeed, it may spell professional ruin for a defendant, even if the defendant is ultimately vindicated.

Of course, when defendants are indeed sexual assault perpetrators, then they deserve to be stigmatized. But while the case is being litigated, they are generally merely accused. They are not presumed guilty; indeed, the burden of proof even in a civil case remains on the accuser. Some of the defendants may well be innocent. And in any event, to remain impartial, the civil justice system cannot just assume away their privacy interests on the theory that they are likely guilty while their accusers are likely correct.

[II.] The presumption that parties must be named deters defendants' meritorious defenses as much as plaintiffs' meritorious claims

One reason sometimes given for pseudonymity is that requiring plaintiffs to be publicly identified can undermine the public policy that the civil causes of action are aimed to serve. See Volokh, supra, at 1394-95. Plaintiffs faced with the prospect of these harms might choose not to litigate: People who were sexually assaulted, for instance, might be reluctant to continue with their lawsuits once pseudonymity is denied; likewise for people who have been libeled, or who have been pretextually fired by their employers. They might decline to sue or might decline to continue with their lawsuits once pseudonymity is denied. See id.

But lack of pseudonymity for defendants can likewise undermine the presentation of meritorious defenses. Defendants—especially ones accused of an extremely serious offense such as sexual assault—might equally settle before complaints are filed, if they are facing a lawsuit where they would be publicly identified as defendants, even if they have sound legal or factual defenses. Someone who is being accused of rape might feel unable to publicly defend himself if he knows that the very filing of the lawsuit would publicly label him as an accused rapist. And that is so even if he did not actually commit a sexual assault, for instance because the sexual activity did not happen, or happened but was actually consensual.

[III.] One-sided pseudonymity can be unfair to the nonpseudonymous party in the litigation process

[A.] Generally

Protecting only one party from the possible stigma or chilling effect that pseudonymity causes can also unfairly affect the other party's litigation position. This Court and others have recognized this, noting that pseudonymity can create a "risk of unfairness to the opposing party," James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); In re Sealed Case, 931 F.3d 92, 97 (D.C. Cir. 2019), even when the defendant knows the plaintiff's identity. "[F]undamental fairness suggests that defendants are prejudiced when 'required to defend [themselves] publicly before a jury while plaintiff[s] make accusations from behind a cloak of anonymity.'" Rapp v. Fowler, 537 F. Supp. 3d 521, 531-32 (S.D.N.Y. 2021) (alteration in original) (sexual assault case) (quoting Doe v. Delta Airlines. Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015)).

If plaintiff were permitted to prosecute this case anonymously, [defendant] would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity. See Southern Methodist Univ. Ass'n of Women Law Students, 599 F.2d at 713 (Because "the mere filing of a civil action against … private parties may cause damage to their good names and reputation," "[b]asic fairness" dictates that plaintiffs who publicly accuse defendants in civil suits "must [sue] under their real names."

Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996) (sexual assault case) (quoting S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)). "[A]nonymity provides a shield behind which defamatory charges may be launched without shame or liability." Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005).

[B.] Skewed effect on settlement

One particular way that one-sided pseudonymity can be unfair to the nonpseudonymous party is by skewing the settlement value of a case. "While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk." Doe v. Fedcap Rehab. Servs., Inc., No. 17-CV-8220 (JPO), 2018 WL 2021588, at *2 (S.D.N.Y. Apr. 27, 2018). "Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage [and cause significant prejudice], particularly when it comes to settlement leverage." Id. at *3; see also Doe v. Zinsou, No. 19 Civ. 7025 (ER), 2019 WL 3564582, at *7 (S.D.N.Y. Aug. 6, 2019); Doe v. McLellan, No. 20-CV-5997 (GRD) (AYS), 2020 WL 7321377, at *3 (E.D.N.Y. Dec. 10, 2020).

This is particularly true in a sexual assault case, for reasons similar to those discussed in Part II. In a sexual assault case, both sides will often risk stigma from exposure. While, regrettably, sexual assault victims do face stigma, accused rapists also face stigma, even before any verdict is rendered (and may remain stigmatized even if they eventually prevail in the case). One-sided pseudonymity is thus quite likely to skew the settlement value of the case in favor of the pseudonymous party, even entirely apart from who is actually in the right and who is in the wrong.

[C.] Difficulty of public defense

A plaintiff's pseudonymity may also make it hard for defendants to defend themselves in public:

The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff's allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings. Part of that defense will ordinarily include direct challenges to the plaintiff's credibility …. [Plaintiff] cannot use his privacy interests as a shelter from which he can safely hurl these accusations without subjecting himself to public scrutiny, even if that public scrutiny includes scorn and criticism.

Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137, 142 (S.D. Ind. 1996); see also Smith, 429 F.3d at 710; Doe 1 v. George Washington Univ., 369 F. Supp. 3d 49, 68 n.9 (D.D.C. 2019). A defendant may have information that provides support for his position—and that helps recuperate his reputation—but that he cannot reveal without disclosing the plaintiff's identity. Even if no formal gag order accompanies the pseudonymity order (see Volokh, supra, at 1375-76, for examples of such gag orders), defendants likely would not feel fully comfortable publicly identifying an adversary as to whom the judge had issued a pseudonymity order. They might worry that doing so, even if not a violation of the letter of the order, would be seen as defying its spirit. And a litigant whose case is before that judge might be reluctant to engage in anything that can be perceived as defiance.

[D.] One-sided effect on the candor and availability of witnesses

Pseudonymity can also make the fact-finding process less reliable because "pseudonymous witness[es]" may feel less inhibited "from fabricating or embellishing an account." Doe v. Delta Airlines Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff'd, 672 F. App'x 48 (2d Cir. 2016). When one side is pseudonymous and the other is not, that side will thus be given something of an edge in the litigation process.

Pseudonymity also makes it less likely that valuable witnesses will come forward. See, e.g., id. (denying pseudonymity partly because "witnesses, upon the disclosure of Doe's name, [may] 'step forward [at trial] with valuable information about the events or the credibility of witnesses'" (quoting Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties."))). In a case such as this, for instance, witnesses who hear about the case could come forward to (for instance) help Doe by offering negative information about Sidar. But witnesses could not come forward to help Sidar by offering negative information about Doe, precisely because they do not know who Doe is. The nonpseudonymous party is thus handicapped in some measure in litigation relative to the pseudonymous party.

[E.] Risk of giving pseudonymous party's claim greater weight

Letting a party testify pseudonymously might also pre­judice the jury (in those cases that go to trial) by "'risk[ing] … giv­ing [the party's] claim greater stature or dignity,'" Lawson v. Rubin, No. 17-cv-6404 (BMC) (SMG), 2019 WL 5291205, *3 (E.D.N.Y. Oct. 18, 2019) (quoting Doe v. Delta Airlines, 310 F.R.D. 222, 225 (S.D.N.Y. 2015)), or by implicitly "tarnish[ing]" a defendant by conveying to the jury "the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff]." Tolton v. Day, Civil Action No. 19-945 (RDM), 2019 WL 4305789, *4 (D.D.C. Sept. 11, 2019). "De­fend­ant might well be prejudiced in defending against a complaint by being perceived as a wrongdoer by the very fact of anonymity alone." A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995).

[F.] Risk of witness and juror confusion

Pseudonyms can also confuse witnesses (at trial or in depositions) and jurors. For example, in a student lawsuit over a medical school's disciplinary actions, a court rejected pseudonymity at trial partly because witnesses called by the defendant, "who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff's pseudonym," which would create "a risk of prejudice to Defendant." Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-cv-00145-SMJ, 2021 WL 4197366, *3 (E.D. Wash. Mar. 24, 2021).

[G.] This unfairness may cut in favor of either mutual pseudonymity or absence of pseudonymity

Concerns such as those given above have often led to courts insisting that plaintiffs proceed under their real names. At the same time, those concerns might counsel in favor of mutual pseudonymity, in those situations where the plaintiff has not identified the defendant at the outset. "[I]f the plaintiff is allowed to proceed anonymously, … it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses." Doe v. Doe, No. 20-CV-5329 (KAM)(CLP), 2020 WL 6900002, at *4 (E.D.N.Y. Nov. 24, 2020); see also Roe v. Doe, Civil Action No. 18-666 (CKK), 2019 WL 1778053, at *3 (D.D.C. Apr. 23, 2019); Doe v. Smith, No. 1:19-CV1121 (GLS/DJS), 2019 WL 6337305, at *2–3, *3 n.1 (N.D.N.Y. Nov. 27, 2019). "If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality." Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001). But see Doe v. Purdue Univ., No. 4:18-cv-89, 2019 WL 1757899, at *3 (N.D. Ind. Apr. 18, 2019) (rejecting mutual pseudonymity). This preference for mutual pseudonymity suggests that, had Ms. Doe sued Mr. Sidar as a Richard Roe at the outset, she could have properly remained pseudonymous, though her choice to name Mr. Sidar now leaves that avenue unavailable.

To be sure, such mutual pseudonymity, while providing more protection to the parties' privacy and reputations, also undermines public access to information about the lawsuit even more than one-sided pseudonymity does. See Volokh, supra, at 1383. Nonetheless, on balance, the concerns about unfairness outlined above should cut against allowing one-sided pseudonymity, whether the court's preferred alternative is to allow pseudonymity to both sides or to deny it to both sides.

[III.] Even if one-sided pseudonymity might be proper here because defendant has defaulted as to his culpability, such a holding should then be limited to such unusual cases

Of course, the unfairness described above is especially stark when the plaintiff and defendant are both merely presenting their claims, and either might be correct. When the defendant has been found to be guilty of the underlying sex offense, the unfairness may be absent. See, e.g., Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, at *2 (Conn. Super. Ct. Oct. 15, 2014) (endorsing mutual pseudonymity in principle but rejecting it when the defendant had already pleaded no contest to a criminal charge arising out of the same facts). Likewise, when the defendant has defaulted as to liability, as the lower court ruled Sidar had done, it might be fine to treat the defendant—who has been concluded to be guilty—worse than the innocent plaintiff.

Amicus takes no stand on this narrow question, which arises in this case but relatively few others. But amicus asks that, if this Court is inclined to rule in Doe's favor as to pseudonymity because of the default judgment against Sidar, the Court would expressly stress that factor as a basis for its decision. That way, District Courts and future panels of this Court would remain free to consider the arguments about the unfairness of one-sided pseudonymity in the more typical cases: cases where either the plaintiff or the defendant might yet prove to be correct on the merits.

Conclusion

Though there are powerful reasons to allow sexual assault plaintiffs to remain pseudonymous, there are also powerful reasons to treat sexual assault plaintiffs and sexual assault defendants similarly with respect to pseudonymity. For those reasons, a plaintiff who chooses to name the defendant in a sexual assault complaint should generally not be allowed to proceed pseudonymously, even if pseudonymity would be proper if the Doe plaintiff sues the defendant as a Roe.

To be sure, the analysis might be different in a case such as this one, where the defendant has either been found guilty in a separate proceeding or has defaulted as to liability in this very case. But if this Court is inclined towards Doe on this particular ground, amicus asks this Court to limit such a decision in favor of pseudonymity to this unusual factual situation.

The post Fourth Circuit on One-Sided Pseudonymity in Sexual Assault Cases appeared first on Reason.com.

In Doe v. Jeancharles (M.D. Fla.), Doe is suing "alleging violations of the federal Trafficking Victims' Protection Reauthorization Act ('TVPRA'), violations of the Fair Labor Standards Act ('FLSA'), breach of contract," and related theories. The Complaint alleges that:

Dr. Jean-Charles targeted desperate and vulnerable Immigrant Medical Graduates ("IMG"), he lured them to work for JC Medical Center with the promise of compensation, experience, and a recommendation letter to help them "match" a residency program, he withheld payment or underpaid these vulnerable IMG's [including Doe], and has coerced them to work full-time hours seeing scores of patients.

But yesterday's decision by Magistrate Judge Robert Norway (M.D. Fla.) concludes that Doe had to sue under his own name:

Federal Rule of Civil Procedure 10(a) requires that "every pleading" in federal court "name all the parties." This rule "protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." … A party may proceed anonymously or pseudonymously by establishing "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" … The Eleventh Circuit has found that the "first step" [in this analysis] is to consider the three factors analyzed in Southern  Methodist University Association of Women Law Students v. Wynne & Jaffe (5th Cir. 1979): "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution."

Along with the SMU factors, the court should "carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns." For example, the court may also consider "whether the plaintiffs were minors, whether they were threatened with violence or physical harm by proceeding in their own names, and whether their anonymity posed a unique threat of fundamental unfairness to the defendant."  …

Starting with the first step of considering the SMU factors, Plaintiff relies on the third factor that he would be compelled to admit an intent to engage in illegal conduct and risk criminal prosecution as his substantial privacy interest. Plaintiff contends that he may have violated Florida Statutes sections 456.065 and 817.234, which make it a felony under certain circumstances to practice medicine without a license and participate in insurance fraud. But Plaintiff has failed to cite any case law that advances his position or provide information that indicates any pending criminal prosecution or allegations of forthcoming charges. Without more, the Court cannot find that Plaintiff has established a substantial privacy right that outweighs the presumption of open court proceedings. See Doe v. Florida Gulf Coast Univ. Bd. of Trustees (M.D. Fla. 2023) (denying motion to proceed anonymously where plaintiff did not allege that criminal charges were forthcoming or indicate pending criminal prosecution).

Further, Plaintiff is not challenging the Florida Statutes he believes he may have violated—the potential criminal conduct alleged here is tangential to the case. Courts have found the compelled to admit an intent to engage in illegal conduct factor in favor of plaintiffs where the plaintiffs are challenging the validity of the law for which they have violated or intend to violate. Thus, the Court finds that the third SMU factor does not weigh in favor of Plaintiff….

Plaintiff states that it will cause him great embarrassment and humiliation to proceed under his name because he is an alleged victim of labor trafficking and that he fears retaliation from Defendant in the form of reputational harm. But Plaintiff again fails to provide any case law to support his position that his circumstances establish a substantial privacy right. Plaintiff simply offers more factual background about Defendant's alleged wrongdoing and how he believes Defendant will smear his reputation in the medical community because this action will expose Defendant. While the Court is sympathetic to Plaintiff's situation and concerns, fear of embarrassment, humiliation, and retaliation is insufficient to outweigh the interest in proceeding publicly…. "… '[P]ersonal embarrassment' alone is not enough for leave to proceed anonymously." …

In sum, Plaintiff has not met his burden of establishing a substantial privacy right that overcomes the presumption of judicial openness. The Court understands that Plaintiff has alleged unfortunate circumstances and reasonable fears, but the Court finds that this matter does not rise to the type of exceptional case needed to proceed pseudonymously.… "Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." …

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