Right of Access

Revelation of Plaintiff's Gambling Addiction Doesn't Justify Pseudonymity or Sealing

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Roe v. Skillz, Inc., decided earlier this month by a Ninth Circuit panel (Judges Morgan Christen and Danielle Forrest, and Sixth Circuit Judge Eugene Siler), held that "a district court's decision not to seal judicial records and its denial of leave to proceed anonymously" was not "an abuse of discretion":

"[W]e allow parties to use pseudonyms in the 'unusual case' when nondisclosure of the party's identity 'is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.'" Because there is a presumption that parties' identities are public information, anonymity is only proper under "special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity."

Roe maintains that special circumstances warrant her need for anonymity because her claims relate to her compulsive gambling and the impact on her mental health, her suicidal ideations, and personal harms she suffered. She generally states that disclosure could negatively affect her professional standing, as her employer is unaware of her struggles and her work requires interaction with the public who may "weaponize" it against her.

However, this court has made clear that use of a pseudonym should only be permitted occasionally and in "unusual" cases. Here, the magistrate judge did not find Roe's case to be unusual, noting that "in today's environment, a past gambling addiction with accompanying mental health problems is not so out of the norm as to constitute sensitive and highly personal in nature."

Roe has not presented medical evidence that supports the assertion that she will suffer substantial additional mental injury if her identity is disclosed. Instead, she states conclusory and general statements without explanation or support. Further, while there is no identifiable prejudice to Skillz should Roe remain anonymous, Roe failed to address and therefore show that the need for anonymity outweighs the public's interest in the proceedings.

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  1. I feel, and this might be totally off base, that many people with addictions feel the need to keep it a secret due to embarrassment when … like most people around her probably want to help her. They don’t know what’s going on. And when you find something and try to help you get rejected over and over again and it is constantly repeated there is nothing wrong and you are just crazy.

    Now, I dont know if revealing it publically is good for her but certainly rejecting the constant impulse to keep everything a secret … I mean, I think is a good thing?

    I have no idea if any of this is relevant and certainty it has little to do whether this is correct or not, but yeah.

    1. She is entirely entitled to keep her medical details secret for any reason or none – right up until she starts demanding public resources like the court’s time and money. At that point, she has to justify her request for secrecy.

      The burdens there are not especially high but they are higher than “because I said so”.

  2. I agree with the court decision but, Devil’s Advocate here….

    How about the protection of PHI (Protected Health Information) and HIPAA?

    Folks do have a legal right to have their medical info protected.

    1. Largest exception to HIPAA – consent of the person whose medical records/information are at issue. Don’t want to reveal them? Don’t file a lawsuit that’s all about them.

    2. HIPAA applies only to Covered Entities and Business Associates. The court is neither. While she may have a right to the protection of medical information under some other law, she has no such right (in this context) under HIPAA.

      To the extent that she has a moral right to medical privacy (as opposed to a legal right), that must be balanced against the public’s right to oversee the inner workings of our government.

    3. Sigh. HIPAA prevents covered entities (medical providers and their affiliates — insurers, billers, etc.) from revealing individuals’ medical information without consent. It does not prevent anyone else on the planet from doing so. It certainly doesn’t prevent the individual herself from doing so.

  3. The revelation of an addiction causes no harm. If you lose a job, if the wife leaves, if a club expels you, sue them for the factual harms they caused.

  4. Re: Insurers
    The hospital’s insurance company may be a covered entity, but the patient’s insurance company is not.

    If you disclose medical information to buy life insurance, the insurance company can do anything at all with that information. They are not restricted by HIPPA or anything else.

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