The Volokh Conspiracy
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Pseudonymous State Court Defendants Might Want to Avoid Removing the Case to Federal Court
A cautionary tale, from Doe v. Doe (N.D. Ohio). An Oberlin college student sued a fellow student in Ohio state court for libel, claiming that she (the defendant) had falsely accused him (the plaintiff) of rape. The state court had allowed both parties to be pseudonymous. But federal courts generally view Federal Rule of Civil Procedure 10(a) as presumptively barring pseudonymous litigation, so the federal judge (Judge James Gwin) on his own initiative required the parties to explain why they should remain anonymous—and ultimately concluded that they had to be identified:
On March 12, 2020, Plaintiff John Doe sued Defendant Jane Doe in the Lorain County Court of Common Pleas. On March 13, 2020, the Lorain County Court granted Plaintiff's motion for both parties to proceed using pseudonyms. On May 8, 2020, Defendant removed the case to this Court.
On June 3, 2020, the Court ordered both parties to file briefing on whether they can proceed anonymously. Both parties complied and moved to proceed anonymously.
Federal Rule of Civil Procedure 10 requires complaints to state the parties' names. But courts may excuse parties from identifying themselves when their privacy interests outweigh the presumption of open judicial proceedings. When weighing these privacy interests, certain factors could support contravening the typical rule of open court proceedings:(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information "of the utmost intimacy"; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children.
Both parties seek anonymity to avoid the disclosure of intimate information. They suggest that this suit will necessarily involve discussion of sexual contact that will leave each stigmatized.
The only controlling caselaw the parties cite in support is Doe v. Porter. There, the Sixth Circuit affirmed the district court's anonymity allowance. But the Sixth Circuit affirmed because the suit involved three of the before-mentioned privacy considerations: it challenged government activity, involved religious beliefs which "invited an opprobrium analogous to the infamy associated with criminal behavior," and was brought on behalf of children.
In contrast, this case does not challenge government activity and concerns only the actions of adults. While the parties may want to keep discussions of their sexual activity private, this preference does not outweigh the presumption of open judicial proceedings.
The public has a right to access court records except in the limited matters Congress has deemed confidential. This suit does not fall within any such exception.
The Court hereby DENIES the parties' motions to proceed anonymously. The Court VACATES the March 13, 2020, protective order permitting the parties to proceed anonymously. The Court ORDERS the Clerk of Court to (1) update the electronic docket to identify Plaintiff and Defendant by their full legal names and (2) unseal all documents in the court record.
Think what you will about the judge's decision, or about the general federal preference against pseudonymity on which it relies—my point here is simply that what might look at first like a good tactical move (for the defendant to remove the case to federal court, because the parties were citizens of different states) may backfire for the defendant, if pseudonymity was really important for her. Defendants' lawyers in such situations should always consider this sort of danger.
