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Right of Access

Pseudonymous Federal Litigation Requires Court Permission


A reminder yesterday from Judge James S. Gwin (N.D. Ohio) in Doe v. Doe, a slander lawsuit stemming from allegations of sexual abuse at Oberlin College—the plaintiff is seeking to litigate the case under a pseudonym, but that requires court permission, and requires the plaintiff to clear a fairly high bar:

On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain
County Court of Common Pleas. On May 8, 2020, Defendant removed the case to this Court.

Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. {Fed. R. Civ. P. 10(a); 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.").}

Only in limited circumstances may a court permit the parties to proceed pseudonymously. Id.

Unless the parties seek this permission, however, federal courts lack jurisdiction over the unnamed parties. Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); see also Citizens for a Strong Ohio v. Marsh, 123 F. App'x 630, 637 (6th Cir. 2005) (citing Nat'l Commodity, 866 F.2d at 1245). Here, neither party has requested permission to proceed under pseudonyms.

The Court hereby ORDERS both parties to file briefing on whether they can proceed
anonymously. Both parties' briefs are due within seven calendar days.

Whether the plaintiff can succeed in litigating the case pseudonymously is an interesting question: Courts have generally been open to allowing sealing by plaintiffs who allege sexual assault, and by plaintiffs who sue universities alleging wrongful expulsion based on third parties' allegations of sexual assault; but I haven't seen much discussion of whether libel plaintiffs could sue their accusers pseudonymously, whether over accusations of sexual assault or of other serious misconduct. In any event, though, the court is right that this can't be done as a matter of course, but requires the court's permission.

There are often anonymous Doe defendants, simply because the plaintiff doesn't know their identities (but is often busily trying to discover them).  That, though, raises a separate set of questions.

UPDATE: For an interesting example of a court order allowing a plaintiff to proceed pseudonymously, check out Judge Lawrence O'Neill's decision in Publius v. Boyer-Vine (a First Amendment case where I was one of the lawyers representing the plaintiff):

After considering the unique facts of this case—namely, the careful steps that Publius has taken to safeguard his anonymity since he began blogging, and Publius' thus far undisputed assertion that the addresses and phone numbers of the legislators were already publicly available when he posted them—it becomes clear that Plaintiffs filed this request to focus the Court's attention on the merits of their case. Publius has demonstrated a compelling need for anonymity, that Defendant is not prejudiced by this anonymity, and that the public's interest would be best served by allowing him to remain anonymous. The Court finds that Publius has satisfied the "high bar for proceeding under a pseudonym" and that deviating from its normal practice for this "rare exception" is warranted.

Courts are indeed more open to plaintiff pseudonymity in cases where plaintiffs are challenging government action using primarily legal rather than fact-intensive arguments, and their precise identity is not particularly important—though of course even there court permission is required, and is not categorically granted.

FURTHER UPDATE: I've revised the title of the post to make clear that this is the rule in federal cases; as commenter orin ed deniro noted, this might not be the rule in state courts. (The right of access to court records stems from both the First Amendment, which in principle applies equally in state and federal courts, and from common-law principles, statutes, and court rules, which may vary by jurisdiction. The restrictions on pseudonymous litigation might also have a First Amendment open-courts component, but my sense is that they are more of a common-law/rules/statute matter, and thus likely to vary a good deal more from court system to court system.)