The Volokh Conspiracy
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Why Not Pseudonymous Litigation? The Value to the Public of Access to Party Names
I'm putting up some excerpts from my new draft article, The Law of Pseudonymous Litigation, hoping to get some feedback. This one is on why courts generally view pseudonymous litigation as denying valuable information to the public; I'll have more soon on other reasons against pseudonymity, as well as other reasons in favor.
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Public naming of litigants is one aspect of the broader "presumption, long supported by courts, that the public has a common-law right of access to judicial records."[1] "Public access to civil trials … provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system."[2] In particular, the right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch,"[3] and "promotes the institutional integrity of the Judicial Branch."[4] "'Public confidence [in the judiciary] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.'"[5]
This right of access extends to "pretrial court records" as much as to trial proceedings.[6] And the right presumptively forbids redactions as well as outright sealing, though redactions can be justified on a somewhat lesser showing than sealing (since they are sometimes viewed as the least restrictive means of protecting important privacy rights).[7]
Now in principle pseudonymity is less of a burden on public access than is sealing, or even redaction:
The public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Party anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them. The assurance of fairness preserved by public presence at a trial is not lost when one party's cause is pursued under a fictitious name.[8]
Nonetheless, even courts that take this view acknowledge that "there remains a clear and strong First Amendment interest in ensuring that '[w]hat transpires in the courtroom is public property.'"[9] And other courts put it even more strongly:
[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case.[10]
"[A]nonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes."[11] "The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court."[12]
Those, at least, are the generalities. Let's turn now to how pseudonymity may be concretely harmful, and how open disclosure of party names may be valuable.
[2.] Pseudonymity interfering with reporting on cases
To begin with, the names of the parties are often key to investigating the case further, for instance to answer:
- Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases,[13] or a vexatious litigant[14]?
- Is there evidence that the litigant is untrustworthy, perhaps in past cases, or in past news reports?[15]
- Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
- Was the incident that led to the lawsuit covered or investigated in some other context?[16]
- Is there online chatter from possibly knowledgeable people about the underlying incident?
- Is there some reason to think that the judge might be biased in favor of or against the litigant?[17]
Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around—the parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified.
And litigation of course deploys the coercive power of the state, even as it also accomplishes private goals. A libel lawsuit, even between two private parties, is aimed at penalizing (and sometimes enjoining) supposedly constitutionally unprotected speech. An employment lawsuit is aimed at implementing a set of legal rules that constrain employers, protect employees, and affect the interests of the public in various ways, direct or indirect. In the words of Justice Holmes, writing about the fair report privilege,
It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.[18]
Courts have recognized that this rationale applies also to the openness of court records,[19] including to the presumption against pseudonymity.[20] And evaluating the credibility of the parties, whether as to their in-court statements or as to their court filings, will often require knowing their identities.
[3.] Pseudonymity leading to sealing or heavy redaction
Filed documents will often contain information that make it possible to identify a pseudonymous party. Sometimes it will be as simple as the name of another party—for instance, if a parent is suing on behalf of a child (e.g., "Eugene Volokh suing on behalf of L.V."), people who know the parent can easily find out the child's name. This can lead to motions to pseudonymize the parent as well, which are usually granted.[21]
And sometimes maintaining pseudonymity may require redacting or sealing documents filed in court. This is most clear in libel cases based on material published online (however obscure the publication might be). In many states, libel complaints must set forth the specific libelous words; [22] but even if they can paraphrase or just quote the key words, the full libelous material would need to be precisely quoted, even before trial (for instance, in a motion to dismiss or a motion for summary judgment).
If the material remains available online at the time, then a simple Google search will often uncover the full statement, which would include the party's name. Any attempt to prevent that would require much more massive redaction or sealing of the alleged libel—which may in turn make it much harder to understand the legal issues of the case.[23]
Likewise, certain other facts mentioned in the lawsuit can make it easy to identify a party. Say, for instance, that a lawsuit is a follow-up to an earlier, nonpseudonymous lawsuit, and mentions the circumstances of that lawsuit; a bit of court records research or LEXIS/NEXIS searching through newspaper archives can uncover the plaintiff's name. To give one example, consider Doe v. Doe, a 2018 lawsuit in which plaintiff claimed that an enemy of his was trying to deliberately promote past newspaper articles that mentioned plaintiff's name.[24] Those past articles stemmed from an employment discrimination lawsuit that Doe had filed nonanonymously (claiming that the named employer had discriminated against Doe because he was a Muslim). Armed with this information, it was easy for me to find Doe's name; only much heavier redaction of the facts would have prevented that.
Now this phenomenon, which one might call "penetrable pseudonymity," may not be that bad for the pseudonymous party. Often the pseudonymous party's goal is simply to keep cases from coming up on casual Google searches (by prospective employers, prospective romantic partners, friends, neighbors, or classmates). Even if someone—say, a news reporter—uncovers the party's real name, there's a good chance that the name won't be used in the final story.[25]
Indeed, penetrable pseudonymity might be seen as a reasonable compromise: Those who really want to learn the party's name can find it, but it takes a bit of work and possibly expense, just as in the past going to the courthouse to get court records was allowed but involved work and expense.[26] Still, penetrable pseudonymity might not be enough for many litigants, their lawyers, and even judges who take the view that, once they allow a party to proceed pseudonymously, they need to do what it takes to make that pseudonymity effective.[27]
[4.] Pseudonymity in one case leading to pseudonymity in too many others
Of course, the typical case is unlikely to draw much public attention. Allowing pseudonymity, or even sealing, in just that one case may thus not be seen as taking much away from the public's power to supervise the judicial process.
But courts are of course aware of their obligation to treat like cases alike. If they are to allow pseudonymity for one case, they must be prepared to allow it for others like it. And if the case is seen as run-of-the-mill within its category, then allowing pseudonymity would imply that other cases in the category should be pseudonymized as well.
Courts often deny pseudonymity relying precisely on this concern—"This Court regularly sees similar allegations and Plaintiff has failed to show that his case is unusual."[28] Thus, for instance, in a disability discrimination case:
Plaintiff offers no specific information suggesting that disclosure of his identity would expose him to a risk of physical or mental harm, relying instead on vague generalizations about risks that all civil rights plaintiffs bear … (explaining that civil rights plaintiffs are "sometimes thought of as troublemakers" …). It cannot be, however, that every plaintiff alleging … discrimination has the right to litigate … pseudonymously. A rule so broad would be inconsistent with both the plain language of Rule 10(a), and the federal courts' general policy favoring disclosure.[29]
Or in a case in which a state judge sued the FBI, claiming that the FBI improperly disclosed certain information about its criminal investigation of him, and where he sought pseudonymity to avoid the reputational damage that would stem from further publicizing the investigation:
If [the plaintiff's interest in reputation justified pseudonymity], then any defamation plaintiff could successfully move to seal a case and proceed by pseudonym, in order to avoid 'spreading' or 'republishing' the defamatory statement to the public. However, this is not the customary practice."[30]
Or in a case in which a defendant in a sexual abuse case sought pseudonymity, arguing that he was innocent but the mere allegations would ruin his reputation:
If, as J.C. suggests, these mere accusations are tantamount to an irreparable injury sufficient to outweigh the public's interests in open proceedings, then he is really asking us to effectively grant all defendants accused of sexual abuse in civil cases the right to defend anonymously, a result which hardly comports with a philosophy granting anonymity only in rare circumstances.[31]
Of course, one possible answer is that we should allow pseudonymity to all these litigants—discrimination plaintiffs, libel and invasion of privacy plaintiffs, sexual abuse defendants, and the like. But so long as our legal system insists on naming parties generally, anyone seeking pseudonymity has to explain how his case is different from everyone else's.
[1] Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). "[T]he public[]," it is said, has a "legitimate interest in knowing all of the facts involved, including the identities of the parties." Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992); United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995); In re Sealed Case, 971 F.3d 324, 326 (D.C. Cir. 2020). "The people have a right to know who is using their courts." Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).
[2] Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3rd Cir. 1984).
[3] Doe v. Public Citizen, 749 F.3d 246, 263 (4th Cir. 2014).
[4] Id.
[5] Id. (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978), and applying its reasoning in a civil case).
[6] Mokhiber v. Davis, 537 A.2d 1100, 1119 (D.C. Cir. 1988); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) ("there exists a qualified First Amendment right of access to documents submitted to the court in connection with a summary judgment motion"); Republic of Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 56 (D. N.J. 1991) ("[p]ublic access to court records is protected by both the common law and the First Amendment").
[7] See, e.g., United States v. Raffoul, 826 F.2d 218, 227 (3d Cir. 1987); HouseCanary, Inc. v. Title Source, Inc., 622 S.W.3d 254, 263 (Tex. 2021).
[8] Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); see also Doe v. Pittsylvania County, Va., 844 F. Supp. 2d 724, 728 (W.D. Va. 2012); ; Doe v. Tsai, No. 08-1198-DWF/AJB, 2008 WL 11462908, *3 (D. Minn. July 23, 2008); Doe v. Barrow County, 219 F.R.D. 189, 193 (N.D. Ga. 2003) ("Any court orders or opinions concerning the merits of this case will be available for public inspection. In the end, the only thing potentially being shielded from the public is plaintiff's name and any court proceedings or opinions that might be necessary to determine standing."); see also Strahilevitz, supra note 7, at 1246–47 (arguing that sealing or fuzzing over the facts makes it harder for litigants to understand what exactly is forbidden or permitted by a precedent, while pseudonymity doesn't have that effect); Ressler, #WorstPlaintiffEver, supra note 7, at 823. And one could argue that the right of access to court records applies only to the documents actually filed in court; if a party's name isn't filed, then the public would have no more right to see it than it would to see other information that never made its way into filings.
[9] Stegall, 653 F.2d at 185; see also Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014).
[10] Doe v. U.S. Dep't of Justice, 93 F.R.D. 483, 484 (D. Colo. 1982); Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974); A.B.C. v. XYZ Corp., 282 N.J. Super. 494 (App. Div. 1995) (the requirement that parties be identified "serves society's interest in having access to the facts of the lawsuit, among which are the actual names of the precise parties involved").
[11] Doe v. Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016).
[12] Gibson v. Pfizer, Inc., No. 3:20-cv-03870-WHA (N.D. Cal. Oct. 28, 2020).
[13] Even once the defendant learns the plaintiff's name in this case, the defendant might be unable to easily find past cases that the plaintiff had pseudonymously filed.
[14] See, e.g., the Darren Chaker litigation discussed infra Part IV; see also, e.g., Doe v. Washington Post Co., No. 12 CIV. 5054 PAE, 2012 WL 3641294, *1 (S.D.N.Y. Aug. 24, 2012) ("The Court cannot but construe the filing of this suit anonymously as an attempt to conceal Fisch's identity as a repeat vexatious filer within this and other districts."), dismissed sub nom. Doe v. Republic of Poland, 531 F. App'x 113 (2d Cir. 2013); Hernandez v. Bishara, No. CV 15-8556-RGK (KK), 2016 WL 4534009, *1 (C.D. Cal. Aug. 30, 2016) ("The Court warns Plaintiffs . . . they must comply with the vexatious litigant order issued in [a prior case]. Plaintiffs . . . may not seek to evade the vexatious litigant order by using pseudonyms or aliases. The Clerk of Court has noted the pseudonyms and aliases used in this case.").
[15] Motion for Reconsideration, Doe v. Wang, No. 1:20-cv-02765 (D. Colo. Aug. 27, 2021) (noting, albeit in redacted form, plaintiff's past filings in other cases—filings that might shed light on the case for the benefit of anyone who seeks to write on it); Czodor v. Luo, No. G056955, 2019 WL 4071771, *1 (Cal. Ct. App. Aug. 29, 2019) (case referred to in the Doe v. Wang filing, in a way that allows it to be found despite the redactions, noting that the trial court had "found defendant had perpetrated acts of domestic violence on plaintiff, and issued a [domestic violence restraining order] to expire in 2023," finding that "defendant 'was evasive' regarding posting pictures of plaintiff online")
[16] For instance, if the plaintiff is suing for libel or wrongful firing or wrongful expulsion based on accusations that plaintiff had committed a crime, had as the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out?
[17] Steinman, supra note 7, at 19.
[18] Cowley v. Pulsifer, 137 Mass. 392, 394 (1884); see also Steinman, supra note 7, at 19 ("Intuitively, one feels less able to judge the fairness of judicial proceedings pursued by unknown parties. Even if the record reveals enough about the plaintiff or defendant to allow an apparently adequate appraisal of the proceedings, the record may not quell all suspicions that the secret identity of a party or parties influenced the decision.").
[19] Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1069 (3d Cir. 1984); NBC Subsidiary (KNBC-TV) v. Superior Court, 980 P.2d 337, 351 n.14 (1999); Hammock by Hammock v. Hoffmann-LaRoche, Inc., 662 A.2d 546, 553 (N.J. 1995).
[20] Goesel, 738 F.3d at 833; Qualls v. Rumsfeld, 228 F.R.D. 8, 13 (D.D.C. 2005).
[21] See infra Part II.E.1.
[22] See, e.g., Adamo Demolition Co. v. Int'l Union of Operating Engineers Loc. 150, AFL-CIO, 3 F.4th 866, 875 (6th Cir. 2021) ("A plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory."); Stead-Bowers v. Langley, 636 N.W.2d 334, 342 (Minn. App. 2001).
[23] See, e.g., Doe v. Doe 1, No. 1:16-cv-07359 (N.D. Ill. Aug. 24, 2016).
[24] Complaint, Doe v. Doe, No. 2:18-cv-02129 (C.D. Ill. May 09, 2018); Eugene Volokh, Is Wrongful Search Engine Optimization a Tort?, Volokh Conspiracy (Reason), July 5, 2019, https://reason.com/volokh/2019/07/05/is-wrongful-search-engine-optimization-a-tort/.
[25] For instance, when I blogged about the Doe v. Doe case, supra note 70, I didn't include the plaintiff's name, though I had figured it out.
[26] See, e.g., Roe v. Doe, 2019 WL 1778053, *3 (D.D.C. Apr. 23, 2019) (retroactively pseudonymizing the opinion at Roe v. Doe, 319 F. Supp. 3d 422 (D.D.C. 2018), even though the printed version of the opinion of course still includes the parties' names).
[27] See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1051 (2003) (discussing such "enforcement needs slippery slopes").
[28] Doe v. United States, No. 1:20-cv-01052-NONE-SAB, at 5 (E.D. Cal. Dec. 16, 2020) (said in a case involving a prisoner suing over an alleged assault by prison workers, where the prisoner claimed that publicly identifying him would risk retaliation); see also United States v. Stoterau, 524 F.3d 988, 1013 (9th Cir. 2008) ("If the nature of Stoterau's offense alone [child pornography and child sexual abuse] could qualify him for the use of a pseudonym, there would be no principled basis for denying pseudonymity to any defendant convicted of a similar sex offense. Such a significant broadening of the circumstances in which we have permitted pseudonymity is . . . contrary to our requirement that pseudonymity be limited to the 'unusual case.'"); Doe v. U.S. Healthworks Inc., No. CV1505689SJOAFMX, 2016 WL 11745513, *5 (C.D. Cal. Feb. 4, 2016) ("This right [of the people to know who is using their courts] is particularly important in the instant putative [Fair Credit Reporting Act] class action, for if the Court were to permit Plaintiff to proceed under a pseudonym in this case, such a ruling would logically extend to any opportunistic litigant with a criminal background seeking to initiate suit against any number of potential employers regardless of their culpability.").
[29] Smith v. Patel, No. CV 09-04947 DDP (CWx), 2009 WL 3046022, *2 (C.D. Cal. Sept. 18, 2009); Doe v. Suppressed, No. 21 cv 50326 (N.D. Ill. Sept. 3, 2021) ("The Court notes that claims brought under the ADA (which by their nature include personal and medical information) are brought publicly through the federal courts every day."); Doe v. Apstra, Inc., No. 18-cv-04190-WHA, 2018 WL 4028679 (N.D. Cal. Aug. 23, 2018) ("the professional harm plaintiff fears is similar to that faced by many plaintiffs who allege disability discrimination"); see also S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979) (using the same reasoning in an employment discrimination case); Doe v. Moreland, No. CV 18-800 (TJK), 2019 WL 2336435 (D.D.C. Feb. 21, 2019) ("if the Court were to credit the purported risks cited by Plaintiff—like the matters he alleges are of a 'sensitive and personal nature'—doing so would open the door to parties proceeding pseudonymously in an incalculable number of lawsuits in which one party asserts sexual harassment claims against another"); Doe v. Main Line Hospitals, Inc., No. 2:20-cv-02637-KSM, at 10 (E.D. Pa. Sept. 1, 2020) ("[W]e do not discount Doe's very real concerns about reputational harm, both personally or professionally, or her fears of relapse in the event of such backlash. But those types of fears are similar to those of other plaintiffs who have alleged that they were discriminated against because of their histories of substance abuse, and it is clear that several similarly-situated plaintiffs have publicly identified themselves in their own litigations."); Luckett v. Beaudet, 21 F.Supp.2d 1029, 1030 (D. Minn. 1998) ("Plaintiff expresses concern for her children. . . . [P]laintiff's concerns are no different from those which could be asserted in virtually any lawsuit."); A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995); Doe v. Bush, No. CIV. SA04CA1186FB, 2005 WL 2708754, *4 (W.D. Tex. Aug. 17, 2005), report and recommendation adopted sub nom. Sims v. Bush, No. CIV.SA-04-CA-1186-FB, 2005 WL 3337501 (W.D. Tex. Sept. 6, 2005); Doe v. Univ. of the Incarnate Word, No. SA-19-CV-957-XR, 2019 WL 6727875, *4 (W.D. Tex. Dec. 10, 2019).
[30] Doe v. FBI, 218 F.R.D. 256 (D. Colo. 2003) .
[31] T.S.R. v. J.C., 671 A.2d 1068, 1074 (N.J. Super. App. Div. 1996); see also Doe v. Townes, No. 19CV8034ALCOTW, 2020 WL 2395159, *4 (S.D.N.Y. May 12, 2020) ("Allowing Plaintiff to proceed anonymously for these reasons would be to hold that nearly any plaintiff alleging sexual harassment and assault could proceed anonymously. Despite sympathizing with Plaintiff, the Court declines to reach such a blanket holding."); Michael v. Bloomberg L.P., No. 14-CV-2657 TPG, 2015 WL 585592, *3 (S.D.N.Y. Feb. 11, 2015) ("To depart in this case from the general requirement of disclosure would be to hold that nearly any plaintiff bringing a lawsuit against an employer would have a basis to proceed pseudonymously. The court declines to reach such a holding."); Doe v. Doe, 668 N.E.2d 1160, 1167 (Ill. Ct. App. 1996) ("As in T.S.R. v. J.C., it is difficult to see how defendant has set himself apart from any individual who may be named as a defendant in a civil suit for damages. It seems to this court that any doctor sued for medical malpractice, any lawyer sued for legal malpractice, or any individual sued for sexual molestation can assert that the plaintiff's allegations will cause harm to his reputation, embarrassment and stress among his family members, and damage to his business as a result of the litigation. Any such doctor or lawyer can also assert that the plaintiff's act of naming him as a defendant is a bad-faith tactic to induce settlement and reap economic gain at the defendant's expense through baseless allegations. Here, we cannot say that potential damage caused by these allegations to defendant's reputation, personally or professionally, amounts to a protectable privacy interest. Nor has defendant demonstrated a privacy interest through his repeated assertions that plaintiff's allegations, if disclosed, will cause 'severe and imminent harm to [his] family.'"); cf. Doe v. Ocean Reef Cmty. Ass'n, No. 19-10138-CIV, 2019 WL 5102450 (S.D. Fla. Oct. 11, 2019) ("The facts alleged here place this case in the same category of the unfortunately numerous cases of sexual harassment that have been filed, litigated, and tried before a jury without the need of anonymity."); Doe v. Main Line Hosps., Inc., No. CV 20-2637, 2020 WL 5210994, at *5 (E.D. Pa. Sept. 1, 2020) ("[W]e do not discount Doe's very real concerns about reputational harm, both personally or professionally [from revelation of her past drug addiction], or her fears of relapse in the event of such backlash. But those types of fears are similar to those of other plaintiffs who have alleged that they were discriminated against because of their histories of substance abuse, and it is clear that several similarly-situated plaintiffs have publicly identified themselves in their own litigation."); Reimann v. Hanley, No. 16 C 50175, 2016 WL 5792679, *5 (N.D. Ill. Oct. 4, 2016) ("[C]ases in which plaintiffs allege that they have been placed at risk of harm due to being branded a 'snitch' are routinely litigated by inmates under their own name. [Citations omitted.] Plaintiff presents no special circumstances that would justify a departure from the general rule that parties litigate under their own names.").