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.)

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  1. Does Ohio have different standards for anonymous litigation? If so, should the court treat the case differently because it was removed? In particular, should the PLAINTIFF’s desire to remain anonymous be treated differently because is was not “he” who chose the federal forum?

    Not suggesting answers, just pondernig

    1. Paul: I much appreciate the question, but I’m inclined to say that public access to federal court records is a matter of procedure that should be governed by federal rules. (Compare the recent D. Vt. case that held the same as to outright sealing, and my argument to that effect in an earlier case before the same judge.) I realize the substance/procedure line is often hard to draw, but I think that the contents of publicly available court records is a quintessential procedural matter, and that the public’s right to supervise the actions of federal courts applies regardless of where the cases originated.

      For the benefit of our other readers — I know Paul, who has litigated these questions extensively, knows this well — a bit of background: There is both a First Amendment and a common-law right of access to court records. The common-law right can naturally vary from jurisdiction to jurisdiction (and can be modified by statutes in some jurisdictions, though the First Amendment right applies in all jurisdictions.

      But sometimes the common-law right provides more protection than the First Amendment right even when it comes to outright sealing. And it may well provide more when it comes to pseudonymity — it’s possible that states might, for instance, authorize a great deal of pseudonymity (e.g., I believe all Delaware family court cases are routinely litigated under pseudonyms). That’s why it’s important to know whether federal or state pseudonymity rules apply to cases removed from state court to federal court.

      1. Hmmmm….

        In Massachusetts, access to District Court records (the juicy stuff that student journalists want to see) is totally at the discretion of the Clerk Magistrate. I was unable to get a few for this reason.

        1. It’s certainly not supposed to be, as a general matter, see the Uniform Rules on Public Access to Court Records:

          Publicly available court records in the custody of a Clerk and located in a courthouse shall be available to any member of the public for inspection and/or copying during the regular business hours of the court, consistent with these rules. Electronic court records may be made available in part or in their entirety at the courthouse consistent with Rule 2, as compiled data consistent with Rule 3, or by remote access consistent with Rule 5….

          [Note:] Court records in the custody of a Clerk shall be available for public access during normal business hours consistent with these rules, unless otherwise prohibited by law or court order. A judge has the authority to impound an otherwise public court record. See Trial Court Rule VIII, Uniform Rules on Impoundment Procedure (as amended effective October 1, 2015).

          I can’t speak to what happened in the few cases where you tried to get particular records (perhaps they fit within some exception, or perhaps the clerk’s office erred).

          1. The Commonwealth is in the process of writing new rules.

        2. Uh huh. Whatever you say, Dr. Ed.

      2. Certainly, under Erie, this is procedural, but it does have substantive implications nevertheless. And I am thinking of a line of cases that I had occasion to cite a few times maybe 30 years ago (I don’t have the briefs readily accessible) suggesting that federal court is not the place to try out adventurous theories of state law, leading to an approach of construing against the party that chose the federal forum.

  2. oops, typo

  3. Has Prof. Volokh ever been an advocate for a pseudonymous litigant?

    I do not know, but I might be willing to wager.

    1. Indeed — and, as the case I’m writing about suggested, it took a court order to make that happen. See Publius v. Boyer-Vine; I wrote about the merits aspect of the case here.

      1. An ombudsman could improve this blog.

  4. As I recall, he has on a number of occasions suggested sympathy for Dendrite line of cases, which are to a significant the product of my litigation endeavors; the standards set there erect protections for the ability of defendants who have been sued over their speech to remain anonymous unless the plaintiff can show both an evidentiary and legal basis for suing.

  5. First, Burton Hall is a student dorm at Oberlin — saying she lives in room 134 pretty much identifies her. It gets better — Room 117 of Burton Hall is the “Disability Solidarity Wing” — see: https://oberlinreview.org/17030/news/students-staff-chart-new-course-for-accessibility-at-oberlin/

    Hence it is possible that Room 134 is also part of this wing, and hence identifies her as a student with a disability (which can include a psych disability). That raises lots of interesting possibilities, doesn’t it??? (And is mental health a reason for courts to grant anonymity in litigation?)

    Second, this is Oberlin — Oberlin — and the fact that he isn’t suing the school appears to mean that he didn’t get ground up in their Kangaroo Kort system. Remember that most of these Korts act on third-party reporting, so her telling others he raped her would be enough for Oberlin to boot him. (Yes, it is that bad in academia today.)

    Third, between the tort claim limits on suits against public universities and state “charity” protection limits on suits against private ones, I’m surprised we haven’t seen more of these suits — if nothing more for the “pound of flesh” and forcing the accuser to declare personal bankruptcy. (And even then, a lot of parents have shifted stocks to their children for favorable tax status.)

    But the thing that strikes me the most here is that a woman accused a man of rape and Oberlin — Oberlin — didn’t believe her? Wow….

    1. There is one other possibility that I’ve seen happen — he really did rape her, but his parents are either rich enough and/or powerful enough to make it go away. For example, AJ Baker, the adult son of MA Governor Charlie Baker, was accused of sexually assaulting a woman on a Jet Blue flight coming back from DC — notwithstanding the witnesses, maybe he was innocent but nothing has yet come of it, nearly two years later.

      I also heard that a $30,000-$40,000 donation to the university could make certain paperwork go away, and I heard enough from a couple of women whom I trusted to be inclined to believe this to be true.

      So that’s the other side of anonymity — yes, daddy’s lawyer may make junior untouchable, but a string of cases might get noticed.

  6. Sorry to disturb Dr. Ed’s rant, but from what I see in the case file, you can’t draw any conclusions about what Oberlin might or might not have done in the case, because the litigation arises out of an “investigation” conducted in February of this year about statements that defendant Doe allegedly made in late 2019. Because Oberlin is shut down because of the pandemic, I don;t think we can draw any conclusions about what may eventually occur in the college;s procedures. But this certainly explains why Oberlin has not bee sued

    Going to the first comment I posted, there has been a motion to remand, and there is a fascinating interplay between the removal issues and the anonymity issues.

    Many of the papers are available for free download on Court Listener.

    1. Actually, we were *both* wrong, Oberlin *is* being sued — see PageID #51 on Courtlistner:

      “Plaintiff’s lawsuit was brought shortly after Jane Doe initiated an internal sexual assault complaint against him with Oberlin College’s Title IX office, the adjudication of which is on-going.

      At the same time that he sued Jane Doe, Plaintiff also filed suit against Oberlin and a number of Oberlin administrators in a case that was also removed to federal court and promptly dismissed as premature and without proper legal basis. See Doe v. Oberlin College, et al., 1:20-cv-00669-DAP. Plaintiff filed an unsuccessful motion to reconsider that dismissal and has now appealed that dismissal to the Sixth Circuit Court of Appeals”


      1. Anyway, the two points in my ‘rant’:

        1: I’d be more worried about the physical address of someone appearing in a court record than her name — he knows who she is, he may not know where she lives…. And yes, I’ve been involved in hiding a few young ladies from guys I can’t believe they ever chose to date in the first place.

        2: Just about every institution of higher education has adopted some form of a “sentence first, verdict second” approach to charges of sexual assault. Pasted below is a copy of Oberlin’s policy — I couldn’t believe they wouldn’t have one.

        An educated guess here is that a strategy of aggressive litigation “discouraged” Oberlin from imposing an interim sanction, but the Wuhan Shutdown didn’t/wouldn’t stop them from doing that.

        Interim Suspension: If a student’s conduct poses an immediate and serious risk to the community, the President may immediately suspend the student from the academic enrollment or the community until a meeting can be had with the Vice President and Dean of Students.


  7. I routinely bring lawsuits captioned “Jane Roe v. The Regents of the University of California” in Superior Court for the County of wherever the UC campus that Roe attended is, that contain this paragraph under PARTIES: “Petitioner uses the pseudonym ‘Jane Roe, in this Petition in order to preserve her privacy in a matter of sensitive and highly personal nature that outweighs the public’s interest in knowing her identity. Use of the pseudonym ‘Jane Roe’ herein does not prejudice Respondent, because she will identify herself to Respondent The Regents of the University of California upon request.” The Regents or the Court have never raised any objection.

    1. orin ed deniro: Interesting. The leading California decision on plaintiff pseudonymity, Doe v. Lincoln Unified School Dist. (Cal. Ct. App. 2010), does take a more pro-pseudonymity tone than the federal decisions I’ve seen, though it favorably cites the Ninth Circuit’s standard. But it sounds like, as a matter of procedure, California courts don’t require prior permission for pseudonymity, while federal courts do. (I wonder also whether the Regents have their own reasons not to object to pseudonymity, whether stemming from FERPA or from a broader sense of their obligations to students, even ones who are suing them.)

      Have you filed similar pseudonymous cases in federal court?

      1. FERPA doesn’t apply to the *student’s* release of personal information….

        1. But orin ed deniro was describing a situation where the student was filing pseudonymously, and noting that the UC doesn’t object to that. Perhaps UC’s view is that the university’s insisting on the student identifying himself or herself in the pleadings might violate FERPA, or perhaps broader FERPA principles even if not the technical requirements of the statute instead. (I’m only speculating here, since we’re discussing UC’s practice, as described by the commenter, rather than a specific argument that the UC has made.)

          1. There may also be a California state statute which applies, but the US Dept of Education explicitly states that FERPA-protected information may be released “[t]o comply with a judicial order or lawfully issued subpoena.
            See: https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

            My speculation is UC doesn’t object because (a) they want the case settled as quickly and quietly as possible, and (b) it wouldn’t look good if some intrepid journalist (or student journalist) were to find and write about their objection. Bad press is really the only thing that terrifies administrators — bad press is what gets them fired….

            Maybe they also don’t want to be a-holes as well, but I’m way to cynical to think any college administrator to be that altruistic.

  8. I recently successfully litigated a case for an anonymous plaintiff. In Wisconsin, open records requests, by statute, cannot be denied because the requester refuses to identify themselves. The Madison School District refused to provide records to my client because they refused to identify themselves. We sued and moved the court immediately for leave to proceed anonymously. The court granted the motion, agreeing with us that if record custodians can deny a request and force the requester to identify themselves in court before getting the records, the statutory right to request records anonymously is meaningless.

    After that motion (and being served with discovery requests), the district capitulated and turned over the records.

    1. 🙂

      And people wonder why I am so cynical….

  9. @Eugene Volokh asked, “Have you filed similar pseudonymous cases in federal court?” The Regents as an arm of the state can’t be sued in Federal court without their consent, (See Justice Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states) and I never wanted to delay the litigation to obtain The Regents’ consent.

    @ Dr. Ed observed, “Maybe they also don’t want to be a-holes as well, but I’m way to (sic) cynical to think any college administrator to be that altruistic.” I could not agree with you more.

  10. So did this case start with plaintiff’s asking the state court for anonymity and having it authorized in the state court, or did they mistakenly start out anonymously filing suit in state court anonymously? Did the defense attorney overlook this requirement when filing the removal?

    1. James Pollock: Good question; I checked the state court docket and saw that the plaintiff filed an “EXPARTE MOTION TO PROCEED UNDER PSEUDONYMS/MOTION TO RESTRICT PUBLIC ACCESS TO COURT RECORD AND CASE DOCUMENTS AND/OR MOTION TO FILE VERIFIED COMPLAINT AND ALL CASE DOCUMENTS BEARING THE PARTIES’ IDENTIFYING INFORMATION UNDER SEAL FILED” — but as best I can tell, the state court didn’t rule on it before the defendant removed the case to federal court.

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