Free Speech

No Sealing / Pseudonymity in #TheyLied Libel Lawsuit

|The Volokh Conspiracy |

From yesterday's decision by Magistrate Judge Sanket J. Bulsara (E.D.N.Y.) in Roe v. Does:

In this action against unnamed and unknown defendants, John Does 1–11 …, Richard Roe … moves to proceed under a pseudonym or, in the alternative, to seal the case. For the reasons discussed below, Plaintiff's motion is denied….

Plaintiff is an individual residing in Brooklyn, New York. He "is an executive coach, consultant, entrepreneur[,] and non-profit director who primarily" works from his residence. Plaintiff alleges that Defendants have "conducted a systematic campaign of anonymously contacting" professional organizations with which Plaintiff is involved to report instances of sexual harassment and assault by Plaintiff or to divulge similar allegations concerning Plaintiff. Plaintiff claims that he was terminated or dissociated from such organizations, and lost "substantial" income, as a result of Defendants' conduct.

On August 19, 2020, Plaintiff commenced this action against Defendants John Does 1–11, whom Plaintiff believes are not residents of New York but about whom he has "limited identifying information." Plaintiff seeks compensatory, special, and punitive damages for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress; a retraction of all allegations made against him; and costs of the suit….

The court notes that there is a strong presumption in American law that lawsuits are to be litigated in public, with the parties identified; sealing and pseudonymity are fairly rare exceptions (especially in federal court). In the Second Circuit, courts considering pseudonymity requests are asked to consider these factors:

  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."

The court goes through the factors one by one, but here are the key points that I think are doing the work:

[A.] {"[B]ecause of the presumption of openness with regard to American judicial proceedings, federal courts generally have been rather rigorous in not allowing the plaintiff to commence an action anonymously or to proceed under a pseudonym." The Court finds it highly persuasive that Plaintiff fails to and is unable to cite a single case in which a plaintiff, suing for defamation and alleging he was falsely accused of sexual assault, was allowed to proceed anonymously against the victim of the purported assault. In fact, in other cases in this District, such plaintiffs have proceeded under their own names.}

{Some courts have allowed student plaintiffs accused of sexual assault to proceed anonymously in suits against their respective universities given the ages of students involved and the university context. See, e.g., Doe v. Colgate Univ., No. 15-CV-1069, 2016 WL 1448829, at *3 (N.D.N.Y. Apr. 12, 2016) (collecting cases). These cases, which are brought against colleges and universities, not victims of assault (and none of which are relied on by Plaintiff), provide little guidance to the present litigation.}

[B.] [Courts have] recognized the danger that cross-examination of an anonymous plaintiff could be compromised and the risk that a jury would not be able to properly assess the credibility of a plaintiff proceeding under a pseudonym.

Allowing a plaintiff to proceed anonymously may also hamper witnesses coming forward of their own volition to either bolster or refute a plaintiff's allegations….

[C.] Further, allowing Plaintiff to proceed anonymously while Defendants are not granted such protection could cause embarrassment and stigma to Defendants and undermine principles of fundamental fairness. "Information and allegations that are highly sensitive and of a personal nature can flow both ways." "There is prejudice against a defendant when a defendant is 'required to defend itself publicly before a jury while plaintiff could make [his] accusations from behind a cloak of anonymity.'"

[U]nder Plaintiff's proposal, he would have Defendants publicly, under their real names, defend against allegations that they falsely reported incidents of sexual harassment and sexual assault, while Plaintiff would proceed anonymously. That is, Plaintiff does not propose that Defendants, alleged victims of sexual assault and harassment, should also be able to proceed anonymously, but instead seeks additional discovery so that he may be able to name Defendants publicly.

Courts in this Circuit have denied motions to proceed anonymously made by victims of sexual assault, despite the hardship such an order imposes and the sensitivity around allegations of assault.  See, e.g., Doe v. Weinstein, No. 20-CV-6240, 2020 WL 5261243, at *3 (S.D.N.Y. Sept. 3, 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.'"). The Court cannot see how it would be equitable or consistent with these cases to permit Plaintiff to proceed under a pseudonym when victims of sexual assault and harassment are not generally permitted to do so. In other words, Plaintiff's fairness argument is inconsistent with the general trend to disfavor anonymity in sexual assault-related civil cases. And he compounds this unfairness by seeking to unmask Defendants, while he proceeds incognito….

[D.] Plaintiff asserts that he "will likely not bring the case at all due to fear of retaliatory action" if he is unable to proceed by pseudonym. Further, Plaintiff contends that "[t]he public has an interest in knowing that injustices, such as the one that the Plaintiff has and continues to suffer, are occurring. The public has a further interest in seeing that those perpetrating privacy invasions, especially anonymously on the Internet, are held liable for the harms that result." Plaintiff further contends that, although "[c]ourts have often found allegations of harm insufficient where plaintiffs have complained that proceeding publicly would cause embarrassment, humiliation, and economic harm," the "extreme emotion distress" he has suffered makes his case "exceptional."

[E.] Plaintiff's arguments fail to address … that the public has an interest in open judicial proceedings. A foundational principle of federal courts "is a fundamental belief that the public has a right to know who is using the courts and for what general purpose." Plaintiff does not explain how the interest he identified—reducing or deterring false allegations of assault—counsels against, rather than in favor, the public's interest in having such claims adjudicated with knowledge of his identity….

[F.] Plaintiff states that he would be reluctant to bring the case if he were not allowed to do so anonymously. To the extent that his stated goal of deterring false accusations is appropriate and achievable through this litigation, it counsels against granting Plaintiff anonymity, not in favor of it. It is true that "[p]rivate civil suits, individually and certainly in the aggregate, do not only advance the parties' private interests, but also further the public's interest in enforcing legal and social norms." If Plaintiff is truly concerned and interested in deterrence, such a goal is not advanced in civil litigation by permitting anonymous prosecution. It is instead advanced through a full and complete public airing of the facts and claims. And as explained [above], anonymity often hinders the fact-finding process….

[T]o the extent that Plaintiff's claims are without merit, given that he is alleging that Defendants have lied, there is certainly a countervailing public interest in knowing the Plaintiff's identity. "[I]n civil cases involving potentially damaging allegations about a defendant's conduct, basic fairness requires that plaintiffs disclose their real names."

The Court is loath to allow an individual accused of sexual assault and sexual harassment to sue his accusers from behind a veil of anonymity, while seeking to out and name his accusers. Requiring Defendants to defend against Plaintiff's allegations that they lied about instances of sexual assault and sexual harassment may inflict extreme distress, embarrassment, and reputational harm on Defendants and could further deter other similarly situated individuals from reporting sexual abuse….

[G.] {[Plaintiffs] contends that he will be embarrassed and potentially lose additional clients or business. But in evaluating the second Sealed Plaintiff factor, courts do not credit potential embarrassment or economic injury…. "In contrast to evidence of actual physical harm, courts have found that evidence of embarrassment, social stigmatization, and economic harm provides an insufficient basis for proceeding anonymously." …

Economic injury is recognized under [the other-harm] factor. Plaintiff contends that denying anonymity would "amplify" the "substantial embarrassment, … tarnished professional reputation[,] and professional and monetary losses" he has already faced.  Outside of this conclusory statement, Plaintiff provides no details or specifics about how this lawsuit would cause him additional harm beyond that he has already suffered or continues to suffer. Presumably in defaming Plaintiff, Defendants are using Plaintiff's actual name with the third parties, and Plaintiff has not explained the nature of any additional harm beyond what he is already suffering if forced to use his actual name in litigation. He also has provided no specifics about the third parties or the quantum of his monetary losses to date. Absent such specifics, his alleged economic injury is little more than speculation.

I think the court was a bit too quick to say that the prospective economic injury to the plaintiff from having his identity revealed is too speculative: It seems to me that the publicity about the lawsuit will further amplify the charges against the plaintiff, even if plaintiff ultimately prevails. But I think that on balance this can't outweigh the value of public access, as a means of allowing the public to monitor what is being done by the court system, with all the governmental coercive power the courts wield.

Note also that some courts have indeed allowed alleged sexual assault and sexual harassment victims to sue pseudonymously; the court's reasoning, which relies on the unfairness of letting the plaintiff be pseudonymous while the defendants are expected to be named (once plaintiff identifies them), thus might not apply when both the plaintiffs and defendants seek pseudonymity.

As to the motion to seal the case, the court rejected it out of hand, concluding that the plaintiff hasn't given any serious argument in favor of such a radical closure.