Why Not Pseudonymous Litigation? Burdens on Opponents

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 some courts view pseudonymity as unfair to the opposing party; I'll have more soon on other reasons against pseudonymity, as well as other reasons in favor.

[1.] Generally

Pseudonymity can also create a "risk of unfairness to the opposing party,"[1] even when (as I generally assume in this Article) the defendant knows the plaintiff's identity. This is often articulated in general terms that would apply to most pseudonymity requests (except perhaps those in lawsuits against the government[2]):

[F]undamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity. C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. He seeks over $40 million in damages. He makes serious charges and, as a result, has put his credibility in issue. Fairness requires that he be prepared to stand behind his charges publicly.[3]

More specifically, in a case where the plaintiff accused defendant of having distributed revenge porn of plaintiff:

[Plaintiff] has denied [defendant] Smith the shelter of anonymity—yet it is Smith, and not the plaintiff, who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.[4]

[2.] Public self-defense

A plaintiff's pseudonymity may also make it hard for the defendant to defend itself in public:

The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff's allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings.

Part of that defense will ordinarily include direct challenges to the plaintiff's credibility, which may well be affected by the facts plaintiff prefers to keep secret here: his history of mental health problems and his history of substance abuse. Those may be sensitive subjects, but they are at the heart of plaintiff's credibility in making the serious accusations he has made here. He cannot use his privacy interests as a shelter from which he can safely hurl these accusations without subjecting himself to public scrutiny, even if that public scrutiny includes scorn and criticism.[5]

Sometimes, as Part I.C.4 notes, pseudonymity orders are enforced with gag orders that do indeed prevent defendants from defending themselves against pseudonymous plaintiffs' allegations (or plaintiffs from defending themselves against allegations in pseudonymous defendants' counterclaims). And even in the absence of a gag order, I expect that few litigants would feel fully comfortable publicly identifying an adversary as to whom the judge had issued a pseudonymity order. In entering the pseudonymity order, the judge has presumably concluded that identifying the plaintiff would be both harmful and not particularly valuable. It seems likely that the opposing party's publicly identifying the victim, even if not a violation of the letter of the order, would be seen as defying its spirit. And a litigant whose case will be supervised by that judge might be reluctant to engage in anything that can perceived as defiance.

[3.] Effect on settlement value of case

The settlement value of a case generally turns in large part on the ongoing costs—whether litigation costs, emotional costs, or reputational costs—of the lawsuit to the two parties. All else being equal, if the plaintiff's costs go down, the settlement value of the case is likely to increase. Likewise, if the defendant's costs go down, the settlement value of the case is likely to decrease. (Consider, for instance, the likely effect on the settlement value if the defendant can reduce its litigation costs, perhaps if a defendant gets ideologically minded pro bono counsel.)

It follows that, in cases where both sides have reputational or privacy costs stemming from the litigation, giving one party pseudonymity but not the other would decrease the pseudonymous party's costs, and would change the likely settlement value.[6] All else being equal, a Doe v. Smith will tend to yield a higher settlement than Jones v. Smith or Doe v. Roe, which in turn will tend to yield a higher settlement than Jones v. Roe.

Courts recognize this, and sometimes give it as a justification against pseudonymity. "[S]ome cases suggest that a court should consider whether allowing a party to proceed under a pseudonym will create an imbalance in settlement negotiating positions."[7]

Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations: While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk… . Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage [and cause significant prejudice], particularly when it comes to settlement leverage.[8]

Of course, one can also say that the non-pseudonymity default itself causes improper settlement leverage, which pseudonymity might solve. Say, for instance, that David Defendant is in a field where even the accusation (however unfounded) of some misconduct would mean massive financial cost. Paul Plaintiff's threatening to file a Paul v. David lawsuit might thus yield an unfairly inflated settlement compared to Paul v. Doe (where David could defend himself on the merits, and perhaps win without the allegations being disclosed) or even compared to a fully pseudonymous Poe v. Doe (since pseudonymity wouldn't help Paul much).

Conversely, say Polly Plaintiff wants to sue Donna Defendant for discrimination based on Polly's mental illness, but is reasonably fearful that disclosing the mental illness would ruin her future employment prospects. In pre-filing negotiations, Donna (who might not worry too much about publicity related to allegations that she discriminated) may know that Paula dreads the publicity, and may be able to settle the case for a pittance, even if Paula has a solid case on the law. Paula's being able to file a Poe v. Donna lawsuit or even a Poe v. Doe lawsuit would then yield a likely settlement value that's more in line with the expected value of the case at trial.

It's not clear in general, then, whether non-pseudonymous litigation yields fairer settlement values than pseudonymous litigation. But it seems clear that pseudonymity can change settlement values in many cases, whether for better or fore worse.

[4.] Mutual pseudonymity as a solution

Of course, the fairness concern could be satisfied by allowing both parties to be pseudonymous. Some courts have indeed taken that view, just as some have cited fairness as a basis for rejecting pseudonymity for either party.[9] "[I]f the plaintiff is allowed to proceed anonymously, … it would serve the interests of justice for the defendant to be able to do so as well, so that the parties are on equal footing as they litigate their respective claims and defenses."[10] "If we are to have a policy of protecting the names of individual litigants from public disclosure, there is a very substantial interest in doing so on a basis of equality."[11]

But of course such mutual pseudonymity, while providing more protection to the parties' privacy and reputations, also undermines public access still more. Imagine being a reporter who has to write about a Doe v. Roe lawsuit, with no ability to track down people who can offer the story behind the case (except to the extent that the lawyers are willing to provide access to those people)—you could still see the allegations, the parties' arguments, and the court's decisions, but without any ability to independently investigate the facts. And of course if that's accepted as the norm in, say, sexual assault lawsuits (or libel lawsuits over allegations of sexual assault), whole areas of the law could become difficult for the media and the public to monitor, outside the constrained accounts of the facts offered up by judges and lawyers. This may be a reason why such mutual pseudonymity is so rare.[12]

 

[1] In re Sealed Case, 931 F.3d 92, 97 (D.C. Cir. 2019).

[2] See infra Part I.G.

[3] Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349 (S.D.N.Y. May 3, 2021) (cleaned up); see also, e.g., Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401 (S.D.N.Y. 2019); Doe v. Frank, 951 F.2d 320, 323–24 (11th Cir. 1992); Southern Methodist University Ass'n v. Wynne & Jaffe, 599 F. 2d 707, 712–13 (5th Cir. 1979); Mateer v. Ross, Suchoff, Egert, Hankin, Maidenbaum & Mazel, P.C., No. 96 CIV. 1756 (LAP), 1997 WL 171011, *6 (S.D.N.Y. Apr. 10, 1997); Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996); Doe v. Townes, No. 19CV8034ALCOTW, 2020 WL 2395159, *6 (S.D.N.Y. May 12, 2020); Doe v. Family Dollar Stores, Inc., No. 1:07-CV-1262-TWT-CCH, 2007 U.S. Dist. LEXIS 105268, at *9 (N.D. Ga. Oct. 17, 2007); Doe v. Heitler, 26 P.3d 539 (Colo. Ct. App. 2001); Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020); ); Anonymous v. Simon, No. 13 CIV. 2927 RWS, 2014 WL 819122, *2 (S.D.N.Y. Mar. 3, 2014); Doe ex rel. Doe v. Harris, No. 14–cv–00802, 2014 WL 4207599, at *2 (W.D. La. Aug. 25, 2014); Doe v. Baird, No. 1:20-cv-11579-DJC, at 7–8 (D.D.C. July 27, 2020); Bird v. Barr, No. 19-cv-1581, 2019 WL 2870234, at *2 (D.D.C. July 3, 2019); Doe v. Benoit, No. 19-CV-1253 (DLF), 2020 WL 11885577, at *4 (D.D.C. July 27, 2020); Doe v. Freydin, No. 21 CIV. 8371 (NRB), 2021 WL 4991731, at *3 (S.D.N.Y. Oct. 27, 2021); In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., No. 17-5217, 2019 WL 2552955, at *28 (D.C. Cir. June 21, 2019) (Williams, J., concurring in part and dissenting in part). But see Doe v. Tsai, No. 08-1198-DWF/‌‌AJB, 2008 WL 11462908, *3 (D. Minn. July 23, 2008) (rejecting this argument, in case involving parents suing over allegedly false claims of abuse of their children).

[4] Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005); see also United States v. Microsoft Corp., 56 F.3d 1448, 1457 (D.C. Cir. 1995) ("Anonymity may well confer a kind of immunity which permits a plaintiff to hurl rhetorical weapons that could cause a unique kind of harm not faced in ordinary litigation.").

[5] Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137, 142 (S.D. Ind. 1996) (paragraph break added); Doe v. Purdue Univ., No. 4:18-CV-72-JVB-JEM, 2019 WL 1960261, *4 (N.D. Ind. Apr. 30, 2019).

[6] Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020) ("If the defendant [a prominent lawyer and adjunct law professor accused of sexual assault] were named, he would likely feel significant pressure to settle this case regardless of the merits of the plaintiff's allegations.").

[7] Doe v. MacFarland, 117 N.Y.S.3d 476, 497 (Sup. Ct. 2019); Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020).

[8] Doe v. Fedcap Rehab. Servs., Inc., No. 17-CV-8220 (JPO), 2018 WL 2021588, *2–*3 (S.D.N.Y. Apr. 27, 2018); see also Doe v. Zinsou, No. 19 CIV. 7025 (ER), 2019 WL 3564582, *7 (S.D.N.Y. Aug. 6, 2019); cf. T.S.R. v. J.C., 288 N.J. Super. 48, 58–59 (App. Div. 1996) (noting defendant's argument that "plaintiffs' counsel has suggested that the possibility of public disclosure would provide an incentive to settlement"—something that defendant reasoned as an "improper, bad faith motive[] for [plaintiff's] requesting that this matter proceed publicly"—but ultimately concluding that, given the defendant's having been identified in other sources, pseudonymity wasn't warranted).

[9] E.g., A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 501 (App. Div. 1995) (noting that the state high court had concluded that "a sexual harassment plaintiff" would not be pseudonymized, so "there is no reason in logic or law that a perpetrator [of sexual misconduct, such as exhibitionism,] should be protected, when a victim is not"); Doe v. Doe, No. CV146015861S, 2014 WL 4056717 (Conn. Super. Ct. Ansonia-Milford Dist.); Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020); Doe v. Anonymous #1, No. 520605/‌‌2020E (N.Y. Sup. Ct. Kings County Feb. 24, 2021), and Affidavit in Support of Defendants' Motion to Dismiss the Complaint, id. (Dec. 21, 2020); Doe v. Tenzin Masselli, No. MMXCV145008325, 2014 WL 6462077, *2 (Conn. Super. Ct. Oct. 15, 2014) (leaving open the door to Doe v. Roe lawsuits in some such cases: "If a plaintiff in a civil case such as this one were to fabricate charges of sexual assault, the defendant's reputation might suffer irreparable harm during the proceedings, even if the plaintiff ultimately fails to prove him liable. In such a case the use of a pseudonym by the defendant could prevent the completely unjustified damage to his reputation."); Doe v. Tyler Clementi Found., No. 19STCV43398 (L.A. County Super. Ct. filed June 11, 2020) (progressing with the only remaining defendant being pseudonymous, though without an explicit court decision allowing this); Bike v. Sollene, No. CV126027065S, 2012 WL 5476887, *2 (Conn. Super. Ct. Oct. 15, 2012) (discussing some Connecticut cases where pseudonymity was allowed to such defendants); see also Milani, supra note 7, at 1698–1706 (arguing for such mutual pseudonymity, at least "until judgment is entered" in cases against "defendants accused of stigmatizing intentional torts").

[10] Doe v. Doe, No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *4 (E.D.N.Y. Nov. 24, 2020); see also Roe v. Doe, No. CV 18-666 (CKK), 2019 WL 1778053 (D.D.C. Apr. 23, 2019) ("Plaintiff's consent to Defendant's request for both parties to proceed under pseudonym addresses several of the Court's qualms: no longer would Plaintiff alone bear the risk of reputational harm if only Defendant were pseudonymized—over her objection.").

[11] Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001); see also Doe v. Am. Fed. of Gov't Employees, No. 1:20-cv-01558-JDB, at 6 n.2 (D.D.C. June 19, 2020) (suggesting that, given the "risk of unfairness [that] attends letting these serious allegations, which are as yet unproven, attach to Defendant Cox's name while the John Doe #1 is permitted to remain anonymous," the best remedy would be to have mutual pseudonymity).

[12] See, e.g., Doe v. Doe, 189 A.D.3d 406 (N.Y. App. Div. 2020) (allowing pseudonymity for such a plaintiff but rejecting it for the defendant).