Attempt to Entirely Seal Title IX Complaint on Privacy Grounds Rejected

From Judge Dale Ho's decision today in Doe v. Columbia Univ. (S.D.N.Y.):

[T]hese cases concern allegations of sexual assault and that the events in question occurred from 2012 to 2014 or 2015, around the time that Plaintiff was an undergraduate student at Columbia University…. Plaintiff … filed identical letters seeking to proceed pseudonymously in each case …. In his letter motions seeking pseudonymous status, Plaintiff noted that his "Complaint includes sensitive health information regarding a sexual assault, and medical and psychiatric treatment for these assaults, which could have deleterious consequences if this information became public record." Plaintiff did not request that the Complaints be sealed altogether, but the Clerk of Court, as a precaution given Plaintiff's motions to proceed under a pseudonym, limited electronic docket access to Plaintiffs' Complaints to "court users and case participants."…

I moved to intervene and unseal the Complaint "with any necessary redactions of various people's personally identifying information" (but didn't oppose pseudonymity), and the court agreed; an excerpt:

First, there is no doubt that complaints are judicial documents. "A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision."

Second, a strong presumption of public access attaches to complaints. "Complaints have historically been accessible by default, even when they contain arguably sensitive information" and "public access to the complaint and other pleadings has a significant positive role … in the functioning of the judicial process." Under common law, because complaints are "highly relevant to the exercise of Article III judicial power," "the presumption of access is at its zenith."

Third, the Court … agrees that there are important countervailing privacy interests identified by Plaintiff, but concludes that these concerns can be accommodated via pseudonymity rather than through complete sealing of the Complaints. Indeed, Plaintiff publicly filed his Complaints and did not affirmatively request sealing of them, but rather sought only pseudonymity to protect his privacy interests. It was only in an abundance of caution that the Court, following a decision in the previous case brought by the Plaintiff, Doe I, ordered sua sponte that the Complaints be sealed. But the Second Circuit and district courts within it have generally addressed the type of serious privacy concerns raised by the Plaintiff by permitting pseudonymity and other limited redactions to protect personal information, while otherwise leaving the relevant judicial documents publicly available in redacted form….

Nevertheless, Plaintiff—despite having affirmatively sought only pseudonymity and not complete sealing of the Complaints—now argues that pseudonymity is insufficient to protect his interests, because (1) "[u]nsealing the complaints detailing my abuse would likely trigger a relapse of [my] symptoms and retraumatize me all over again"; and (2) even with pseudonymity, unsealing the details "of these allegations themselves could lead to the identification of plaintiff."

The Court takes concerns of this nature seriously. But they are difficult to credit in this dispute, in light of the fact that Plaintiff himself has made his allegations publicly on numerous occasions: as noted, Plaintiff filed the Complaints publicly and did not request that they be sealed, and he has publicly filed multiple other documents describing his allegations—such as his Intervention Opposition and his Opposition to Sua Sponte dismissal—and as noted, he opposes redactions to those documents. {In his August 16 Letter, Plaintiff also threatened to "shar[e] my story with media" if the Court did not reconsider, inter alia, its previous decision allowing Columbia to redact the Oppositions.}

More fundamentally, Plaintiff cites no legal authority supporting the proposition that redactions to protect pseudonymity are insufficient, and that complete sealing of the Complaints is necessary. Plaintiff cites several cases, but each of these cases considered only the issue of pseudonymity and not the complete sealing of the relevant judicial documents—and several of the cases did not even grant pseudonymous status.

Perhaps the best case for Plaintiff is Doe v. Town of Lisbon (1st Cir. 2023), in which the First Circuit affirmed a district court's decision denying a similar motion by Volokh.

But there, the First Circuit made clear that Town of Lisbon was not a "sealing/unsealing case," as a version of the complaint in that case was available on the public docket, with only the Doe plaintiff's name redacted, such that "the public ha[d] full access to all information contained in the docket other than one party's name." Volokh's motion in that case was denied because it sought to pierce pseudonymity, which his motion in this case does not.

In light of the discussion above, the Court concludes that continued sealing of the Sealed Complaints is inappropriate. Volokh's motion to unseal the Complaints is therefore GRANTED, but only IN PART. The Court agrees that some redactions may remain appropriate to address privacy and confidentiality concerns. But such redactions must be "narrowly tailored" to protect the privacy interests of the Plaintiff and non-parties. They may include "alleged victims' names and identifying information that could allow a reasonable person who does not have personal knowledge of the relevant circumstances to identify with reasonable certainty [these] individuals."

The court also notes some seemingly spurious citations and quotes in plaintiff's papers:

Plaintiff cites Doe v. Townes, and purports to quote it as follows:

Redacting my name would be insufficient to protect my privacy, as "the public filing of a complaint containing detailed allegations of sexual assault, even with names redacted, can still lead to exposure of the plaintiff's identity."

The Court cannot locate this purported quotation in Townes, which as noted, recommended denying pseudonymous status. Nor can the Court locate this quotation in the other cases cited by Plaintiff, or in any case at all on Westlaw or LEXIS. {This is troubling, and is not the only instance of Plaintiff offering quotations or summaries of cases that appear to be inaccurate or non-existent. Cf. Mata v. Avianca, Inc. (S.D.N.Y. 2023) ("Many harms flow from the submission of fake opinions."). In light of Plaintiff's pro se status, however, the Court will not impose sanctions at this time.} …

Plaintiff also states that he did not become aware of his claims in the Kachalia case until sometime "after the 2023 settlement," Pl. Opp'n to Sua Sponte Dismissal 5, citing a case identified as "2022 WL 2917890" which purports to indicate that the ASA [the New York Adult Survivors Act] revives otherwise time-barred claims where delay is attributable to repressed memories. See id. at 6 ("See Doe, 2022 WL 2917890, at *5 (ASA revives claims that were not previously brought due to repressed memory of abuse)"); id. at 12 ("See Doe, 2022 WL 2917890, at *5 (ASA revives claims that were not previously brought due to repressed memory of abuse)"). This point is irrelevant because, as noted supra, the ASA does not revive federal claims. The Court notes, however, that there is no case on Westlaw that the Court can identify with the citation "2022 WL 2917890." Plaintiff's short citation is apparently in reference to a case he fully cites as "Doe v. Poly Prep Country Day Sch., No. 20 Civ. 3628, 2022 WL 2917890 (E.D.N.Y. July 25, 2022)." While the Court was able to identify a similarly captioned case from the same year, Doe v. Poly Prep Country Day Sch., No. 20 Civ. 4718, 2022 WL 4586237, at *1 (E.D.N.Y. Sept. 29, 2022), that case makes no reference to repressed memories or tolling.

On the merits, the court dismisses "the Complaints in all three cases because Plaintiff's federal claims are time-barred and the Court declines to consider Plaintiff's state law claims under its supplemental jurisdiction."

Thanks to Timon Amirani, who drafted the motion under my supervision.