The Volokh Conspiracy

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Volokh Conspiracy

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.


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?