Free Speech

Partial Pseudonymity of an Appellate Decision

Good idea? Bad?

|The Volokh Conspiracy |

I wonder what people think about this: M.M. v. M.S. is a nonprecedential California appellate decision from last Wednesday, involving a lawsuit about alleged invasion of privacy in medical records. (My sense from my quick research is that the medical record was a medical marijuana card.)

Now keeping a case fully pseudonymous, with the parties name unavailable in the court files, is generally viewed by our legal system as a fairly substantial step, requiring some justification—a mild form of sealing of court documents. I think California courts are more open to this than some other courts, but even so pseudonymity is the exception rather than the rule, even though civil defendants, criminal defendants, and even plaintiffs would often prefer not to have their names appear in court decisions.

But here the pseudonymity seems to be present only in the court's opinion. The appellate and trial court dockets, which one can find using the case numbers given in the opinion, contain the parties' full names.

Anyone who really wants to research the case can easily find the names, and can find the local newspaper story from 2017, when the lawsuit was filed. So the public's interest in being able to monitor what courts are doing seems to be largely unimpaired; but the parties' privacy is protected—or, if you prefer, it becomes harder for the parties' future employers, business partners, neighbors, or lovers to learn this information by Googling for the parties' names.

Should we like this? Dislike it?

Does the existence of the article in the local newspaper affect your analysis? Note that there was no follow-up article about the appellate decision in the local paper; I'm not sure if that's because the newspaper hasn't gotten to it yet, doesn't find the appellate decision as newsworthy as the initial filing, or hasn't learned about the case.

Note also that the plaintiff appears to have been involved as an officer in a local political organization, and the defendants were a former city councilman and a local political activist.

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  1. I’m mixed on this one. On the one hand, we’re dealing with a court case and information on people. You can add voters to that list. On the other hand, we’re dealing with an invasion of privacy case/HIPA and the use of pseudonyms helps preserve privacy (not much in this case, but some). Maybe only give anonymity when the case is about a privacy violation in order to stem further violations?

  2. I’m more and more an absolutist on public legal proceedings. The public is the ultimate enforcer of verdicts, and the more legal proceedings are hidden, the less interest the public has in accepting them.

    If the legal system provides justice, then each case assigns winners and losers fairly; losers should have been able to predict their loss, and gain no sympathy from me for their embarrassing loss. If the legal system is corrupt and unfair, that itself needs to be public knowledge.

    Passwords and account numbers? If they are evidence of wrong-doing, they are presumably no longer valid. Redacting children’s names but not their parents is no hurdle; the publicity at the time will linger on forever. I sympathize with crime victims who want the gory details secret so they don’t have to relive the memory, and it really is nobody’s business — except if you want me to judge your criminal’s guilt, I am not going to take your word for it that he did something unspecified bad. Crime disrupts everything — the criminal’s family, friends, and employer suffer too, as do the taxpayers who have to support prisons and police and prosecutors. Your embarrassment does not take priority.

    1. The problem with this analysis is that you can win your legal case yet still be a net loser if the adverse publicity is worse than whatever the court can award you from the loser. That leads to a situation where potential winners self-censor and choose to not bring good cases out of fear and bad guys are left unaccountable.

      I’m not saying that automatically outweighs your concerns about openness and transparency. But it’s a complicating factor that needs to be measured against your other valid goals. It argues against absolute rules.

      re: passwords and account numbers? No you can’t make the presumption at all. There are many scenarios where it will make sense to leave the account live even though it’s mentioned in litigation. There is, however, zero value to those data elements when evaluating the fairness of the judicial process. Redacting them is easy and uncontroversial.

      1. If the bad guys already know your credentials, it behooves you to change them anyway, long before even the investigation gets very far, let alone the court case. Yes, redacting them is easy, but so is numbering pages in reverse. It has no benefits.

        1. If you’re talking about your personal bank account password in a hacker’s hands, absolutely you should change it. And you should change every other account that used the same password – if you can remember them all. But if you’re talking about the access credentials hard-coded into a mainframe system built in the 1980s and “exposed” only because they were mentioned in passing during a deposition, well, the calculation is quite a bit different. There’s no reason to not redact a password.

          1. No. The bad guys, the criminals, already have those credentials, and if you haven’t changed them, you are a damned fool.

            There is zero excuse for retaining stolen credentials, and zero excuse for redacting stolen credentials.

            1. You are assuming rather a lot of facts not in evidence and apparently not bothering to read my post. Credentials can show up in a court document without ever having been “stolen” by a bad guy. You may think leaving the credentials unchanged is a bad idea (and I would generally agree with you) but going from disclosure to a couple officers of the court to public disclosure everywhere is not responsible. There is zero excuse for not redacting passwords in court documents.

      2. And just as crime has repercussions far beyond the actual value to the criminal, so does punishing crime. Alleged criminals deserve a fair shake; that is why we have trials. If the victim decides the embarrassment and humiliation, or reliving the crime, is not worth punishing the criminal or getting restitution, that is their decision; but reducing the fairness of the trial, or making it harder for the public to know what they are implicitly enforcing, cannot be part of the bargain.

  3. I’m okay with this. It seems to be a nod to the pervasiveness of access now that is more than has existed in the past. Sort of like how the Supreme Court periodically “resets” search and seizure law to account for significant changes in technology. The parties aren’t hidden but have to be specifically looked for instead of turning up on the first Google hit. Seems reasonable.

  4. I am more bothered with “nonprecedential” California appellate decision.

    Common law system reliess on citation to prior cases. Defeats the entire structure if others cannot cite and rely on a decision.

    Names don’t matter. MS or Martha Smith. Irrelevant either way.

    1. It is nice to avoid cluttering up case law with redundant opinions. Just because someone appeals, that doesn’t mean they are going to create unique case law.

    2. “MS or Martha Smith. Irrelevant either way.”

      Why make this about Babs?

  5. Pseudonymous references in high-profile documents, coupled with real names in low-profile documents, strikes me as pretty common practice.

    In many criminal cases in my jurisdiction, the alleged victim is made pseudonymous in the complaint, and in the appellate court’s recitation of the facts. But that person’s actual name will appear on the public witness lists, jury instructions, and other documents openly accessible in the trial court’s file. And the actual name will be used in the proceedings, for which unredacted transcripts are produced and filed with both the trial and appellate courts.

  6. Doesn’t bother me. We all know who Jane Roe was, but we still cite the case as Roe v. Wade.

  7. Some years ago I tried a case involving breach of confidentiality by my client (a medical practice). Privacy seemed a graver matter to the appellate court than it did to my adversary or to the trial judge. The client’s full name was on the caption, and the trial judge kept it that way in all the decisions he issued, but on appeal of the verdict the appellate court freaked out, ruled against me on flimsy grounds, and anonymized the plaintiff’s name which is how she appears in the official reports. Of course my client’s name stayed the way it was.

    1. That seems- not that much of a comfort.

      1. The appellate court issued a virtue-signaling opinion on the importance of confidentiality and the need for punitive damages even though it all but admitted that simple, one-time negligence was involved, and I suppose to be consistent in their grandstanding they had to anonymize.

  8. Does doxxing the parties to the case have any impact on the opinion?

    I think the answer is no. So, I don’t think there is a reason to do it.

    Especially when the issue is medical records.

    In general, privacy is very valuable and we do not have enough of it in America.

  9. The answer is no. Not only should the bar be high to rebut the presumption of public access, but restricting access through sealing or pseudonymity must be effective. If it cannot be effective because of publicly available information already available then efforts to restrict access must be abandoned, except in rare circumstances of which this does not seem to be one.

  10. What does “non-precedential” even mean? A precedent at common law is a strong argument for stare decisis, but it is not absolutely binding, and can be set aside if there is a good argument to do so. Likewise, a non-precedential argument can become a precedent if later decisions rely on it, using the same argument in support of a similar decision. In this case, I could not find in the decision the particular reasons for anonymity of the parties, they are only implied. So, if this non-precedential decision later is used by another court/judge as a precedent for anonymity, what’s to stop them? It would help if the court had explained its reasons for anonymity, but they didn’t. As it is, the term non-precedential seems void of substantive meaning — unless it just means that courts can do anything they damn well please.

    1. The nuances of different systems varied, but generally lower courts (and, where they exist, individual judges or panels of multi-judge courts) are required to follow precedential or published decisions, but nor required to follow non-precedential or unpublished decisions. Some jurisdictions (including California) also restrict the ways that litigants are permitted to cite non-precedential decisions.

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