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The Importance Of Decisions About Whether To Permit Pseudonymity
I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains why the question is important, which is part of the reason why we think the Court should take its time to review the matter; other Parts, which I'll blog shortly, explain how and why the decisions below are in conflict and therefore need the Court's attention.
Many of our readers may already be familiar with the arguments I lay out below, but this is my attempt to relatively crisply put them together.
[I.] Decisions about whether to permit pseudonymity are important to the public, to litigants, and to the justice system
[A.] Such decisions are important to the public
Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988). This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir. 2014). "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
"[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." Doe v. Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).
Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.
But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating. See Volokh, The Law of Pseudonymous Litigation, at 1370-72.
Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity. See id. at 1372-76.
And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. Doe v. Moreland, No. 18-cv-800, 2019 WL 2336435, *2 (D.D.C. Feb. 21, 2019); see also Doe v. Fedcap Rehab. Servs., Inc., No. 17-cv-08220, 2018 WL 2021588, *3 (S.D.N.Y. Apr. 27, 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."); Volokh, supra, at 1451-56.
Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. See, e.g., In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019); Pub. Citizen, 749 F.3d at 274; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001). And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation." Does 1-3 v. Mills, 39 F.4th 20, 25 (1st Cir. 2022).
[B.] Decisions about whether to permit pseudonymity are important to enforcement of legal rules
At the same time, denying pseudonymity can also undermine the public policy that the civil causes of action are aimed to serve. Plaintiffs faced with the prospect of being publicly identified might choose not to litigate, and might thus forgo the remedies that civil causes of action exist to provide.
Likewise, defendants who cannot litigate pseudonymously might settle before complaints are filed, even if they have sound legal or factual defenses. The underlying causes of action (or defenses) may end up being underenforced, and useful precedent may end up being underproduced. Sometimes courts allow pseudonymity in part to avoid this deterrent effect, reasoning, for instance, that
[D]enying plaintiff the use of a pseudonym[] may deter other people who are suffering from mental illnesses from suing in order to vindicate their rights, merely because they fear that they will be stigmatized in their community if they are forced to bring suit under their true identity. Indeed, unscrupulous insurance companies may be encouraged to deny valid claims with the expectation that these individuals will not pursue their rights in court.
Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 468 (E.D. Pa. 1997); see also, e.g., Doe v. Lund's Fisheries, Inc., No. 20-cv-11306, 2020 WL 6749972, *3 (D.N.J. Nov. 17, 2020) (sexual assault case); Doe v. Oshrin, 299 F.R.D. 100, 104 (D.N.J. 2014) (child pornography case); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1073 (9th Cir. 2000) (employee rights case); Doe v. Innovative Enters., Inc., No. 20-cv-00107, 4-5 (E.D. Va. Aug. 25, 2020) (LEXIS, Dockets) (case alleging wrongful disclosure of expunged criminal records).
Courts sometimes allow pseudonymity based on such concerns and sometimes reject it despite such concerns. But the point for purposes of this petition is that the question of when to allow pseudonymity is important to our civil justice system.
[C.] Pseudonymity can be unfair to the non-pseudonymous party
[1.] Pseudonymity can create a "risk of unfairness to the opposing party," even when the defendant knows the plaintiff's identity. In re Sealed Case, 931 F.3d at 97. "Fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity." Rapp v. Fowler [Kevin Spacey], 537 F. Supp. 3d 521, 531-32 (S.D.N.Y. 2021) (cleaned up). "[Plaintiff] has denied [defendant] the shelter of anonymity—yet it is [defendant], and not the plaintiff, who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity 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); see also Volokh, supra, at 1448-51 (citing dozens of cases where courts raise this concern).
[2.] This risk exists because plaintiffs' complaints that publicly identify defendants may draw attention from the media, defendants' business partners, and others. Defendants might find their reputations sharply undermined by the allegations alone, long before the allegations are ultimately adjudicated. Normally, defendants can respond by arguing why plaintiff's claims are unreliable. But if the plaintiff is pseudonymous, such public self-defense may become much harder:
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, which may well be affected by the facts plaintiff prefers to keep secret here: his history of mental health problems and his history of substance abuse. Those may be sensitive subjects, but they are at the heart of plaintiff's credibility in making the serious accusations he has made here. He 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. Ind. Black Expo., Inc., 923 F. Supp. 137, 142 (S.D. Ind. 1996); see also Volokh, supra, at 1380-81 (citing other cases making this argument).
Sometimes pseudonymity orders are backed by gag orders that expressly forbid defendants from naming their accusers, and thus forbid defendants from effectively defending themselves against the accusations. See, e.g., Doe v. Mast, No. 3:22-cv-00049, 2024 WL 3850450, *10 n.12 (W.D. Va. Aug. 16, 2024) (endorsing such gag orders); Volokh, supra, at 1375-76 (discussing them). But even where there is no gag order, few defendants would likely feel safe publicly identifying a plaintiff in whose favor the judge had issued a pseudonymity order. See Volokh, supra, at 1381.
[3.] When parties have litigated pseudonymously in past cases, this makes it harder for their current adversaries to uncover relevant information, such as statements that are inconsistent with their claims in a later case, especially ones that could be viewed as judicial admissions, cf., e.g., Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 456 n.1 (W.D.N.Y. 2011) ("Having successfully persuaded a different federal district court that his domicile … was New York, [Facebook founder Mark] Zuckerberg would be judicially estopped from denying otherwise now."). And sometimes litigant history is helpful to get a general sense of a party's credibility and behavior. See, e.g., Bormuth v. County of Jackson, 870 F.3d 494, 524 (6th Cir. 2017) (en banc) (Sutton, J., concurring) ("[L]ower court decisions … show why the council members became frustrated with Mr. Bormuth and confirm that this frustration had little to do with his religious beliefs and more to do with his methods of advocacy. This was not his first legal grievance, to put it mildly.").
[4.] Permitting pseudonymity can also alter settlement values. "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." Fedcap Rehab. Servs., 2018 WL 2021588, *2. This is one reason some courts are reluctant to permit plaintiffs to be pseudonymous when they have named the defendants. See Volokh, supra, 1381-82 (collecting cases).
To be sure, sometimes this alteration might lead to more just results: In some cases, the plaintiff may risk serious reputational or privacy damage if he or she must be identified, but the defendant does not face such risk. If that is so, then the defendant might be able to get away with an unfairly low settlement, and plaintiff pseudonymity might correct that. But in either case, the decision whether to permit pseudonymity is important to the parties.
[D.] Pseudonymity can reduce risk of physical, privacy, reputational, and economic harm
While permitting pseudonymity can be unfairly harmful, forbidding it can be as well. Sometimes a party may face the risk of physical harm if the party's identity is disclosed. See Volokh, supra, at 1397-99. That is often considered for plaintiffs, but may also apply to defendants, for instance if the defendant is accused of a serious offense—sexual assault of a child, fraud against vulnerable clients, and the like—and faces vigilante attacks if identified.
Going forward under one's own name could sometimes require the party to disclose highly private information, such as mental illness, physical illness, sexual orientation, or the fact of a past sexual assault. See id. at 1406, 1409-11.
And going forward under one's own name often jeopardizes a party's reputation and economic prospects. Named defendants accused of fraud or malpractice might face financial ruin because of lost business, even if they are eventually vindicated in court. This is particularly clear for defendants such as celebrities or politicians, since allegations against them may make the news. But it also applies even for ordinary people, given the modern tendency to do online searches to investigate prospective employees or service providers.
Named plaintiffs who sue their ex-employers might be viewed as litigious employees by potential future employers. Named plaintiffs who sue universities over alleged wrongful sexual assault findings in Title IX proceedings will be publicly identified as alleged rapists and may lose job opportunities even if they ultimately win their cases. See id. at 1416-23. Named plaintiffs bringing controversial claims may face viral Internet shaming. Ressler, #WorstPlaintiffEver, at 781-83.
To be sure, pseudonymity is not always allowed in such cases. Loosely speaking, courts generally allow pseudonymity to avoid serious risk of physical harm, sometimes allow it to avoid privacy harm, and rarely allow it to avoid reputational or economic harm (except in Title IX wrongful discipline cases). But again, the point here is that the law of pseudonymity can be tremendously important to litigants' lives.
[E.] Pseudonymity can affect the accuracy and efficiency of the judicial process
Pseudonymity can also affect the accuracy of factfinding.
[1.] A named witness, including a party acting as a witness, "may feel more inhibited than a pseudonymous witness 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). And if the party witness is not telling the truth, "there is certainly a countervailing public interest in knowing the [witness's] identity." Roe v. Does 1-11, No. 20-cv-3788, 2020 WL 6152174, *5 (E.D.N.Y. Oct. 14, 2020).
[2.] Pseudonymity may also alienate potential witnesses. Asking a witness questions about the plaintiff requires mentioning the plaintiff's name. But if the court wants to maintain pseudonymity, then the witness would have to be put under a protective order. See Volokh, supra, at 1385 n.151 (collecting examples). Many people, however, are likely to resist becoming witnesses if that means agreeing to a protective order—especially when the obligation relates to an acquaintance. See, e.g., S.Y. v. Choice Hotels Int'l, Inc., No. 20-cv-118, 2021 WL 4167677, *4-5 (M.D. Fla. Sept. 14, 2021) (rejecting witness gag orders to avoid "a situation where an acquaintance or family member … would need to sign an agreement prohibiting them from ever revealing information related to plaintiff's identity, thus making it impracticable and likely to deter witnesses").
[3.] When this Court recognized a public right of access to criminal trials, Justice Brennan noted that such publicity can cause otherwise unknown witnesses to come forward. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring). The same might be true in civil cases: "It is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of witnesses." Delta Airlines, 310 F.R.D. at 225 (citation omitted). But if one side is pseudonymous, "information about only [the other] side may thus come to light." Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006). But see Doe v. Purdue Univ., No. 18-cv-72, 2019 WL 1960261, *4 (N.D. Ind. Apr. 30, 2019) (rejecting this concern as too speculative).
[4.] Pseudonymity may also prejudice the jury by "risk[ing] … giving [the party's] claim greater stature or dignity," Lawson v. Rubin, No. 17-cv-6404, 2019 WL 5291205, *3 (E.D.N.Y. Oct. 18, 2019) (quotation marks omitted), 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, No. 19-cv-945, 2019 WL 4305789, *4 (D.D.C. Sept. 11, 2019). "[T]he very knowledge by the jury that pseudonyms were being used would convey a message to the fact-finder that the court thought there was merit to the plaintiffs' claims of intangible harms." James v. Jacobson, 6 F.3d 233, 240-41 (4th Cir. 1993).
[5.] Pseudonymity can also confuse the jury. "[W]itnesses, who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff's pseudonym." Doe v. Elson S Floyd Coll. of Med. at Wash. State Univ., No. 20-cv-00145, 2021 WL 4197366, *3 (E.D. Wash. Mar. 24, 2021). And "[i]n the event a witness inadvertently testified to a plaintiff's real name, the Court would have to immediately excuse the jury in the middle of critical testimony, admonish the witness, and provide a limiting instruction, which may signal to the jury that either the attorney or the witness acted improperly." Lawson, 2019 WL 5291205, *3.
[6.] Pseudonymity also impedes courts' ability to identify vexatious litigants by concealing a party's litigation history. See, e.g., O.L. v. Jara, No. 21-55740, 2022 WL 1499656, *3 n.1 (9th Cir. May 12, 2022) (noting that "O.L. makes it difficult to track her cases because she uses initials or pseudonyms," and warning that "[f]lagrant abuse of the judicial process" through such tactics "cannot be tolerated" (citation omitted)); Volokh, supra, at 1388-90 (giving more examples).
[7.] The inability to easily find a party's past pseudonymous cases can make it more difficult to "apply legal principles of res judicata and collateral estoppel." Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000); see also Volokh, supra, at 1389 n.171 (detailing cases where courts expressed this concern).
Lower courts have of course allowed pseudonymity in certain cases despite those arguments. Among other things, for instance, courts sometimes allow pseudonymity before trial but state that the parties will have to be identified at trial, thus avoiding possibly confusing or prejudicing jurors. See Volokh, supra, at 1391. But these considerations again help show the importance of decisions about when pseudonymity should be allowed.
The post The Importance of Decisions About Whether to Permit Pseudonymity appeared first on Reason.com.
