Right of Access

When Should Plaintiffs Be Able to Sue Anonymously?

(1) If they're alleging sexual abuse. (2) If they're alleging they were libeled as sexual abusers. (3) Both. (4) Neither.

|The Volokh Conspiracy |

I've recently started looking into anonymous "John Doe" (or "Jane Doe") litigation; generally speaking, people are presumptively required to sue in their own names, but sometimes courts allow them to sue anonymously. Thus, from the tellingly named Sealed Plaintiff v. Sealed Defendant #1 (2d Cir. 2008):

Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure, "[t]he title of [a] complaint must name all the parties." This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly. Certainly, "[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts."

Courts have nevertheless "carved out a limited number of exceptions to the general requirement of disclosure [of the names of parties], which permit plaintiffs to proceed anonymously." Indeed, we have approved of litigating under a pseudonym in certain circumstances [such as] "… the privacy of plaintiff's child …." …

The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiff's need for anonymity against countervailing interests in full disclosure…. "[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs [1] prejudice to the opposing party and [2] the public's interest in knowing the party's identity."…

This balancing of interests entails the consideration of several factors that have been identified by our sister Circuits and the district courts in this Circuit. We note with approval the following factors, with the caution that this list is non-exhaustive  and district courts should take into account other factors relevant to the particular case under consideration:

  1. whether the litigation involves matters that are "highly sensitive and [of a] personal nature,"
  2. "whether identification poses a risk of retaliatory physical or mental harm to the … party [seeking to proceed anonymously] or even more critically, to innocent non-parties,"
  3. whether identification presents other harms and the likely severity of those harms, including whether "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity,"
  4. whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age,
  5. whether the suit is challenging the actions of the government or that of private parties,
  6. whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court,
  7. whether the plaintiff's identity has thus far been kept confidential,
  8. whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity,
  9. "whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities," and
  10. whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.

From what I've seen, courts are especially likely to allow anonymous litigation where the plaintiff is alleging that the defendant raped her, as item 1 above suggests; one of the women suing Harvey Weinstein, for instance, is apparently litigating under the pseudonym "Emma Loman." (The defendant would of course have to know the plaintiff's name to be able to properly put on a defense, but the question is whether the name is disclosed to the public.) But what if the plaintiff is alleging that the defendant had falsely accused him of rape (or other sexual misconduct)? Some cases seem to say that there too the plaintiff can sometimes proceed anonymously (depending on the circumstances), e.g.,

There can be no doubt that the litigation here focuses on "a matter of sensitive and highly personal nature." Plaintiff has been accused of sexual misconduct, the mere accusation of which, if disclosed, can invite harassment and ridicule. "[C]ommon sense suffices to understand that an adjudication of responsibility for sexual misconduct carries a much more powerful stigma than an adjudication of run-of-the-mill assault or vandalism." Moreover, it is possible that plaintiff could be targeted for "retaliatory physical or mental harm" based on the accusations alone.

This threat is all the more serious given that this case has drawn significant media attention, which means many people across the country are aware of Roe's accusations against plaintiff. Indeed, some responses to the media's reporting on this case have been vitriolic, which is not particularly surprising given the highly-charged nature of the accusations. Moreover, it bears reiteration that the fact that accusations of this sort inspire passionate responses and have severe ramifications is reflected in the anonymity afforded to the accusers and the accused when participating in GMU's disciplinary proceedings. It makes little sense to lift the veil of pseudonymity that—for good reason—would otherwise cover these proceedings simply because the university erred and left the accused with no redress other than a resort to federal litigation….

On the other hand, at least one case takes the opposite view:

[T]hose courts allowing plaintiffs to proceed pseudonymously when the cases involved sexual assault did so because the plaintiff allegedly was the victim of such conduct, not because the plaintiff alleges that he was falsely accused of such conduct.

Anonymity, by the way, may sometimes be allowed only for pretrial proceedings; the jury may well be told who the plaintiff is, and then the media would learn the information and be able to publicly report it. But since over 99% of all filed civil cases don't go to jury trial, many plaintiffs would find anonymity valuable even if they know that it would be lost if a jury trial takes place.

What do you folks think? Should it be easier for plaintiffs (and defendants) to litigate anonymously? Harder? How should this play out in sexual misconduct cases, in libel cases where the libel consisted of allegations of sexual misconduct, and in other cases? Should it matter whether the case has drawn a good deal of publicity, and which way should that cut?

Advertisement

NEXT: Don't Believe Bernie Sanders' Claims About Child Poverty in America

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. (4) Neither. If there is a strong enough public policy reason to make a particular exception to or allow the courts to make their own exceptions to the FRCP then the FRCP should be formally changed to either include that exception or grant the courts the discretion to create their own.

    1. Fair enough, but say that the FRCP is indeed formally changed to return to courts the power to make such rules, thus reflecting that federal courts have indeed taken on that power (rightly or wrongly). Or say that we’re in a state that hasn’t adopted the FRCP, and leaves anonymity questions to the common-law process. How should courts exercise that power?

      1. There’s no reason to believe that all courts (of whatever type) should have the same rules. It DOES help people who switch back and forth between different courts, and it does help law professors who teach procedure (or Evidence) to have the same rules apply everywhere. But different states might value different things, and set their court procedure accordingly.

  2. If the victim wants the blanket of anonymity then the defendant gets the same, if the victim wants to call out the defendant publicly then they must come out publicly. No need to continue the steady march toward making sex crimes (toward women) into an exalted class upon which due process does not apply.

  3. I knew someone who thought the cases in the law school case books had fictitious party names until she read the Parker case in Contracts — Parker being the real last name of actress Shirley McClaine (and, incidentally, her brother, Warren Beatty).

    1. Why would Warren Beatty’s “real last name” be that of his sister’s husband?

      1. You’re right. My mistake.

      2. “Why would Warren Beatty’s ‘real last name’ be that of his sister’s husband?”

        Are they from one of those places where your dad is also sometimes your uncle?

        1. You mean Minneapolis?

  4. I’ve always thought the courts should be much more deferential to private parties’ privacy interests in litigation. Unlike the criminal justice system, where the state has a duty to protect its citizens and the citizens, in turn, have a right to see whether (or how that’s being done), or a civil suit involving the government as a party (in which some of the same interests may be at play), the civil justice system as applied to private actors appears to have developed as a preferred alternative to having neighbors simply level shotguns at one another over a property line or a daughter. Nevertheless, the courts appear to apply a strong public interest in all civil suits, and it seems to me that anonymous plaintiffs may seek to use the publicity attendant to modern litigation as both sword and shield, with only the accused being subject to public scrutiny and adverse publicity, which, in turn, might cause the accused to resolve the matter on something other than the merits. The presumption of innocence (to the extent it exists at all) exists mostly in the operation of the court system, not in the press, and I think the normal human reaction is to be more open to believing the worst about people we don’t know (so long as it doesn’t involve, say, a claim of alien abduction) than giving people who are accused the benefit of the doubt.

    1. Assuming that we’re talking about the courts that taxpayers established to operate at public expense, I would say the public very much has an interest in understanding how these disputes are resolved – an interest that the parties who take advantage of the taxpayers’ generosity should not be able to dismiss (even by stipulation) absent some extraordinarily compelling justification.

      1. Understood. But — from a defendant’s point of view — he, she or it is more often than not an involuntary participant in the legal proceeding. Everyone else — the judge, the lawyers, the court staff, and the plaintiff — are voluntary participants. (I guess you could argue that a plaintiff with a meritorious claim is not a voluntary participant, but even there are valid claims worth pursuing and then there are valid claims that are not worth pursuing. Also, a race-to-the-courthouse situation might present a situation where the defendant would have been the plaintiff but for having lost that race.) Although the article posed the question of whether (or when) a plaintiff should be able to sue anonymously, I should have been clearer that I was approaching the question from the defendant’s point of view.

  5. And don’t forget Richard Roe. #ejectment

  6. I not only say (3) both, but I would allow anonymity in a much broader range of cases. In particular, two wrongs should be addressed this way.

    (1) Any case in which the plaintiff is suing to preserve or regain privacy, as in this example, should be allowed to be both anonymous and with all filings by either side automatically under seal, at least unless and until the plaintiff loses.

    (2) The law should completely protect every defendant from the indirect consequences of the accusation or suit against him (loss of earnings, home, business relationships, etc) if the prosecutor or plaintiff does not win. This means either keeping the defendant’s identity secret until and unless he loses in court, or automatically treating the accusation or suit as defamation by the plaintiff if the defendant wins. This is important because these consequences are frequently much more devastating than any the court itself will impose.

    (Conversely, privacy plaintiffs or rape accusers who do not win their cases should have their own names made public immediately.)

  7. Wouldn’t someone who was falsely accused of a heinous act WANT the fact that they didn’t do it (as established at trial) to be public knowledge?

    1. Not to mention the opportunity to get to know a lawyer who charges you several hundred dollars an hour, and incur other costs related to the litigation. Thank you for playing our game! And, in response to what is a perfectly reasonable next question, the courts hate assessing — and therefore don’t usually assess — attorney’s fees against an unsuccessful plaintiff because they think it unfair and that doing so might serve as a deterrent to others who might sue.

      1. “Not to mention the opportunity to get to know a lawyer who charges you several hundred dollars an hour, and incur other costs related to the litigation”

        Why are you haring off on this tangent, instead of answering the question that was asked?
        In what way does proceeding anonymously free you of having to pay your lawyer?

        If person A accused you of some heinous act, and then sued you, would you want the situation where you win the lawsuit by proving you didn’t do it, but nobody knows because you and “John Doe” are not publicly connected, leaving people with just the accusations associated with your name, and not the vindication?

  8. Many of the “John Doe” lawsuits involve campus discipline proceedings, which are held in secret. This itself is a problem, because of the secrecy we have very little idea of what happens in these proceedings, and we don’t know to what extent people are being unfairly deprived of an education. But it compounds the problem when people can’t challenge the proceedings anonymously. If they want access to the courts they have to tell the world that they have been accused of sexual misconduct.

    So neither should be able to sue anonymously, but that needs to happen in the context of greater transparency in other procedures.

    1. “Many of the “John Doe” lawsuits involve campus discipline proceedings, which are held in secret.”

      If you’re trying to say that all campus discipline proceedings are secret, you are misinformed.

      “we don’t know to what extent people are being unfairly deprived of an education.”

      Yes, we do… 0 persons are deprived of an education, fairly or otherwise, because there’s more than one place to get one. A person’s education is more likely impaired if they stay someplace they aren’t wanted.

  9. Anonymity in court cases should be strongly discouraged if it’s allowed at all. The most important reason is that effective anonymity requires gag rules and they in turn erode freedom of speech.

    Even if you view your dispute as a private matter, gag rules lead to public officials silencing people who were not a party to your problem, had no desire to be your confidant, and don’t want the burden of protecting your secret.

    1. ” The most important reason is that effective anonymity requires gag rules and they in turn erode freedom of speech. ”

      Proceeding non-anonymously ALSO imposes limits on your freedom of speech. There are all sorts of rules about what you can say (and can’t say) in court, and some for outside, too.

  10. I believe there are a lot of other types of cases that create a great risk of harm to the party simply for being named as a plaintiff or defendant.

    If we’re going to allow the court to censor parties’ names in some suits, why have a test at all? Let all parties have the option of choosing whether they want their name censored or not.

    Any public interest can be satisfied by publishing the names of the parties attached to post-trial verdicts.

  11. There are, admittedly, some hard cases where I can appreciate diverging views here. Ultimately, I simply cannot accept that a person can have legal process invoked against him without being able to tell anyone the particulars. Obviously, there are many instances where the law does precisely that; I would rather begin the task of pruning these once-exceptional instances, rather than expanding them into a general right to invoke/impose anonymity.

  12. […] Click here to view original story: When Should Plaintiffs Be Able to Sue Anonymously? […]

  13. Professor Volokh, there are numerous cases in Washington that involve the Public Records Act and this issue, including a slate of recent cases from Sex Offenders trying to block disclosure of there records.
    You may also find two other cases of interest. First, in Hundtofte v. Encarnación, 181 Wn.2d 1 (2013) the issue is whether litigants could have there name removed from the court docket from a prior eviction case because the mere fact that they were sued for eviction made it harder from them to rent apartments.
    Second, in Bainbridge Isl. Police Guild v. City of Puyallup, 172 Wash.2d 398 the court orders a humorous remedy — “We remand these cases to the trial courts and direct them to order the production of the [certain police records] with
    Bainbridge Island Police Officer Steven Cain’s identity
    redacted” — Officer Cain failed to seek to proceed anonymously in the litigation

  14. Roe v Wade might be the best known such case. I’ve lost a couple of cases with anon plaintiffs. The process is to file a motion for leave to proceed under a fictitious name, citing the relevant categories EV lists in his post. My cases are about anonymous signs.

    Cases involving juveniles often just use initials.
    On the internet revealing someone’s identity is called doxxing, and is considered bad form.

  15. […] “When Should Plaintiffs Be Able to Sue Anonymously?” [Eugene Volokh] […]

Please to post comments

Comments are closed.