Free Speech

#MeToo, #TheyLied, and Pseudonymous Litigation

When can libel plaintiffs, suing over allegedly false claims of sexual misconduct, sue pseudonymously? When can defendants defend pseudonymously?

|The Volokh Conspiracy |

Recent years have seen a surge of high-profile sexual harassment and sexual assault lawsuits (though there were plenty before as well). They have also seen a surge of

  • libel lawsuits by people (mostly men) who say they were falsely accused of sexual abuse, and who sued their accusers (mostly women);
  • libel lawsuits by the accusers who say they were falsely accused of lying (e.g., the libel lawsuits against Bill Cosby); and
  • due process and Title IX lawsuits by students who say they were wrongly disciplined by colleges in sexual misconduct investigations.

Many plaintiffs and defendants in these lawsuits want to proceed pseudonymously, to shield their identities from the public (though of course not from each other). But whether they can do so turns out to be complicated and unsettled.

There are quite a few sexual assault cases in which the plaintiff has been allowed to litigate as a Doe, and quite a few such cases involving lawsuits against colleges by people who claim to have been falsely accused. But I can't say this is firmly established even within those categories; and things are even less clear in libel cases. I wrote about two such cases last year, and yesterday a federal court handed down another.

Jane Doe and John Doe are Oberlin College students. It is undisputed that they had sexual activity, but Jane Doe claims it was rape. She complained to Oberlin College, which found in John Doe's favor. And she had also allegedly made similar claims to friends. John Doe then sued for slander and related torts, but wanted to proceed pseudonymously, as did Jane Doe. Judge James S. Gwin, however, said no:

On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain County Court of Common Pleas. On March 13, 2020, the Lorain County Court granted Plaintiff's motion for both parties to proceed using pseudonyms. On May 8, 2020, Defendant removed the case to this Court.

On June 3, 2020, the Court ordered both parties to file briefing on whether they can
proceed anonymously. Both parties complied and moved to proceed anonymously [as to their own anonymity, though] {Plaintiff opposed Defendant's motion to proceed anonymously}.

Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. {See Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) ("As a general matter, a complaint must state the names of all parties.").} But courts may excuse parties from identifying themselves when their privacy interests outweigh the presumption of open judicial proceedings.

When weighing these privacy interests, certain factors could support contravening the typical rule of open court proceedings: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children."

Both parties seek anonymity to avoid the disclosure of intimate information. They
suggest that this suit will necessarily involve discussion of sexual contact that will leave each stigmatized.

The only controlling caselaw the parties cite in support is Doe v. Porter. There, the Sixth Circuit affirmed the district court's anonymity allowance. But the Sixth Circuit affirmed because the suit involved three of the before-mentioned privacy considerations: it challenged government activity, involved religious beliefs which "invited an opprobrium analogous to the infamy associated with criminal behavior," and was brought on behalf of children.

In contrast, this case does not challenge government activity and concerns only the actions of adults. While the parties may want to keep discussions of their sexual activity private, this preference does not outweigh the presumption of open judicial proceedings.

The public has a right to access court records except in the limited matters Congress has deemed confidential. This suit does not fall within any such exception. The Court hereby DENIES the parties' motions to proceed anonymously. The Court VACATES the March 13, 2020, protective order permitting the parties to proceed anonymously. The Court ORDERS the Clerk of Court to (1) update the electronic docket to identify Plaintiff and Defendant by their full legal names and (2) unseal all documents in the court record.

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  1. Is it settled law that, in a diversity case, a federal court will look to federal law rather than state law on the matter of allowing parties to proceed pseudonymously?

    1. How to caption a complaint seems like a procedural question so I would think the federal rules would apply.

    2. There is only one decision I know that squarely deals with this (or at least with the closely related question of sealing rules), which I think I might have indirectly brought about, see this post. But I think the broader precedents all point to federal law here — deciding what information must be included the federal court docket and must then be released by the clerk of the federal court to the public is quintessentially a matter of procedure, it seems to me.

    3. Diversity? Well, is this John Doe of Montana, or John Doe of Oregon?

  2. At a minimum, it would seem appropriate for the district court judge to give the parties a certain number of days to stipulate to the case being remanded to state court (where they were allowed to proceed using pseudonyms), or to delay its order to give the parties time to seek appellate review. I wonder if the defendant regrets removing the case to federal court, and whether her lawyer explained this possibility when the decision to remove the case was pitched to the client?

    1. I am not sure the parties can stipulate to a remand if jurisdiction is otherwise proper in federal court.

      1. Well, they can stipulate to dismiss the case without prejudice, and then re-file in state court.

    2. In most of these kinds of cases I’ve read about the parties seem to lack judgment and expect the world to operate as they want, not as it does.

    3. Nick Gillespie’s Jacket: 1. I’m pretty sure that the court will indeed stay its decision pending appellate review, if the parties want to appeal.

      2. I do think the parties would be able to stipulate to remanding the case (since such diversity cases aren’t something on which federal courts have exclusive jurisdiction), but I’m not sure that this would prevent the unsealing of various sealed documents that reveal the parties’ names and that were filed in federal court.

      3. On remand, the Ohio court might also ultimately decide against pseudonymity; Ohio law seems to be similar on this to federal law, see Doe v. Bruner (Ohio Ct. App. 2012). And to the extent that there are sealed documents in the Ohio litigation, the First Amendment right of access to court records would also apply in Ohio court.

      1. Professor,

        I don’t think you can stipulate to a remand in this context. The grounds for remand in 1447(c) are limited to “a motion… on the basis of any defect other than lack of subject matter jurisdiction [which] must be made within 30 days after the filing of the notice of removal under section.”

        I don’t think there is a statutory basis for extending the 30 day deadline for non-subject matter jurisdiction defects and I don’t think there is any defect present in this case that would qualify under the statute.

        While an Ohio district court may feel differently, the court in Strickland v. Integon Natl. Ins. Co., N.D.Miss. No. 1:14-CV-00119-SA-DAS, 2014 U.S. Dist. LEXIS 154672, at *4 (Oct. 30, 2014) made a pretty good case that parties cannot simply stipulate to remand. While that court did in fact remand, it did so by treating the parties’ stipulation as a joint motion to remand for lack of subject matter jurisdiction and determined independently that it lacked jurisdiction.

        1. If not a stipulated remand, then maybe a stipulate dismissal without prejudice, with the defendant agreeing not to remove the re-filed complaint. But Professor Volokh’s point about the federal court unsealing documents filed in federal court (which probably includes the underlying complaint attached to the notice of removal) is a good one. Probably no way to keep the info private, absent a long shot victory on appeal.

          1. Right. Because even if they dismiss the case without prejudice, the Court’s holding is that the filings are public. So at the least the names and complaint will be accessible.

            And to your last point from earlier, I wonder if the lawyer even considered this as a possibility at all. But if he or she did, perhaps the risk of exposure is worth the forum?

    4. The parties were actively (and contentiously) litigating whether the removal was proper before this issue came up.

  3. My first thought: Oberlin ruled in favor of a male student?!?!?

    That aside, public access to court data in 1789 was something very different from today where one can do a national search from one’s bedroom. Let’s not forget how Obama became a US Senator — Jack Ryan’s campaign was destroyed by leaked data from his divorce.

    1. Seems like you’re coming around to the idea of the living Constitution?

  4. While there should be rights for victims being an accuser shouldn’t automatically give you unlimited privileges over the defendent and the needs of society. There should be no anonymity for accusers. Likewise I am sympathetic to the plight of accused who want anonymity but I think things would be better if society can see the full extent and put a face on the damage by witchhunts.

    Ultimately the solution will be to depedestalize crimes against women which should be seen and treated exactly like crimes against men rather than something worse than genocide like it is now. (unless some other social justice syndrome like BLM virtue signaling becomes a factor)

  5. LawTalkingGuy: Very interesting — thanks very much for passing that along. I tried to look a little further into it, and my sense is that the Strickland approach you describe is likely the dominant view. Some courts do seem to allow stipulated remands, see, e.g., Research Foundation for State University of New York v. AMDT, Inc., 2019 WL 5694119 (E.D.N.Y.): “On October 17, 2017, the parties filed a stipulation requesting to remand the litigation to Suffolk County Supreme Court. The Remand Stipulation stated that the parties disagreed as to whether this matter was properly removed, but that they would consensually remand the action nonetheless…. Thus, on October 24, 2017, this action was remanded to Suffolk County Supreme Court.” But it’s indeed far from clear that it would be available, for the reasons you point out, and probably more likely that it would be unavailable.

    I think that, to get out of federal court, the parties would have to voluntarily dismiss the case without prejudice and then refile it in state court — though, as we discussed, that might not solve their problem, either.

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