Free Speech

Why Not Pseudonymous Litigation? Burdens on the Judicial Process

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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 burdening the judicial process; I'll have more soon on reasons that support pseudonymity.

Pseudonymity can also cause difficulties in the fact-finding process, especially as the case gets closer to trial.

[1.] Encouraging party honesty in testimony or affidavits

A nonanonymous witness, including a party witness, "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account."[1] And if the party witness is not telling the truth, "there is certainly a countervailing public interest in knowing the [witness's] identity."[2] It's hard to tell the extent of this tendency, but it probably exists in some measure.

[2.] Drawing in witnesses

When the Court recognized a public right of access to criminal trials, in Richmond Newspapers, Inc. v. Virginia, it noted the possibility that such publicity can cause otherwise unknown witnesses to come forward.[3] Witnesses might likewise come forward in a civil case: "It is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of witnesses.'"[4] And if only one side is pseudonymous, "information about only [the other] side may thus come to light."[5] At the same time, such claims are by their nature hypothetical, and some judges view them as too speculative.[6]

[3.] Avoiding alienating prospective witnesses through gag orders

A party will often need to disclose a pseudonymous adversary's identity in conducting discovery.[7] If you want to ask a witness questions about the plaintiff, you have to mention the plaintiff's name. But if the court really wants to keep the plaintiff's identity secret, then the witness would have to be put under some sort of protective order to remain quiet about that identity as well.[8]

Many people are likely to resist becoming witnesses if that means agreeing to a protective order, at least if they have no personal stake in the matter. Legally enforceable confidentiality obligations are a burden, especially when the obligation relates to an acquaintance. If you learn your colleague Mary Jones has accused your mutual employer of sexual harassment, you may not want to be legally bound to indefinitely keep that secret fact segregated from all the other things you know about Jones, and all the other things you might say about her to coworkers or friends.

We lawyers have to keep such secrets about people as part of our jobs, but we're used to it, and we're handsomely compensated for it. Not so with prospective witnesses, who may already be skittish about the justice system. And having to incur such an unpaid-for obligation may be enough to deter some witnesses from testifying.[9]

This concern has discouraged some courts from allowing pseudonymity. In one of the sexual assault lawsuits against Harvey Weinstein, for instance, the court reasoned:

The Court cannot accept Plaintiff's "mere speculation" that Weinstein's defense would not be prejudiced by the condition that he "not disclose her name to the public," with no clear definition of what would constitute disclosure to "the public." Plaintiff implicitly concedes that Weinstein might need to disclose her name to at least some third parties, since she appears to suggests that he redact her name from witness depositions.[10]

[4.] Allowing class members to evaluate class representative

Some courts have rejected pseudonymity for would-be class representative on the grounds that it "may … preclude potential class members from properly evaluating the qualifications of the class representative."[11] Others have disagreed.[12]

[5.] Preventing jury prejudice

Letting a party testify pseudonymously might also prejudice the jury, by "risk[ing] … giving [the party's] claim greater stature or dignity,"[13] or by implicitly "tarnish[ing]" a defendant by conveying to the jury "the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff]."[14] And it could also make "witnesses, who know Plaintiff by her true name, … come across as less credible if they are struggling to remember to use Plaintiff's pseudonym."[15] Query whether these risks could be minimized through suitable jury instructions.[16]

[6.] Preventing confusion and lack of witness credibility

Especially in oral testimony, pseudonyms can be confusing to the witnesses and thus to jurors. To quote one such case,

[E]vidence submitted to the Court highlights the problems pseudonyms may pose at trial and the confusion it will undoubtably produce, despite counsel's best efforts to adequately prepare their respective clients. This was apparent from the parties' depositions: "Moira Hathaway" could not recall her pseudonym's first name, and "Hillary Lawson" could not recall her close friend and co-plaintiff's pseudonym. As one court in this circuit has already recognized, "conduct[ing] a trial in such an atmosphere, all the while using pseudonyms, promises trouble and confusion." In the event a witness inadvertently testified to a plaintiff's real name, the Court would have to immediately excuse the jury in the middle of critical testimony, admonish the witness, and provide a limiting instruction, which may signal to the jury that either the attorney or the witness acted improperly.[17]

Likewise, in a student lawsuit over a medical school's disciplinary actions:

[Defendant] argues that witnesses, who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff's pseudonym. Plaintiff retorts that this argument "just does not make sense" because the witnesses are medical professionals—or medical students—who often use the name "Jane Doe" to refer to unidentified female patients. But unlike in the treatment context, these witnesses do know Plaintiff's true name and have used that name in all their previous interactions. The Court agrees that there is a risk of prejudice to Defendant.[18]

[7.] Protecting parties' abilities to research each other's past cases

If you are sued, one of the first things you might want to do is to look up any other lawsuits the plaintiff had filed, to see if they may reveal some facts that might be relevant to this case. Have they made similar allegations in other cases? Have they made allegations arising out of the same fact pattern, which might bear on the allegations against you? For instance, if the plaintiff claims that your product injured him, might he have sued someone else before over the same injury (e.g., claiming that it was the result of an accident or of medical malpractice)?

Were there some findings in those lawsuits that might have collateral estoppel effects? Did the plaintiff make some statements that could be viewed as judicial admissions,[19] or could in any event undermine the plaintiff's case? Did the plaintiff say something about his domicile, for instance, that might be relevant to whether his citizenship is diverse from yours?[20] Has the plaintiff filed so many losing cases in the past that you might be able to have him declared a frivolous litigant?[21]

Conversely, if you're a plaintiff, you might want to research the defendant: Have there been past verdicts against the defendant in similar past cases? Has the defendant you're suing for malpractice or sexual harassment, for instance, been found liable in similar cases before? You might be able to check the records of the cases to see what relevant facts might have emerged, or consult with other plaintiffs to see if they are at liberty to tell you anything helpful.

But if the plaintiff's or defendant's past cases have been pseudonymous, that information may be largely unavailable (at least until you ask for information about the party's past cases in discovery, and the party accurately answers). "[W]ithout [a party's] identity in the public record, it is difficult to apply legal principles of res judicata and collateral estoppel"[22]—or to apply judicial estoppel, or to similarly check whether the party's past factual assertions and legal positions are consistent with their current ones.[23]

[8.] Pseudonymity only at early stages of litigation

Note that some courts deal with some of these problems by offering pseudonymity only at the early stages of litigation, on the theory that "the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses."[24] This is particularly so with regard to pseudonymity at trial, which many courts view with skepticism:

Allowing Plaintiff to proceed via a pseudonym at trial could impermissibly prejudice the jury against Defendant. The risk of harm to Plaintiff is not so severe that it outweighs the prejudice and unfairness to Defendant. The Court therefore will not allow Plaintiff to proceed under a pseudonym should this case reach trial.

But the Court will allow Plaintiff to proceed under a pseudonym at any other pretrial hearings. Because the Court, not the jury, is the factfinder at pretrial hearings, the risk of prejudice is far reduced…. The Court determines that the potential harm to Plaintiff outweighs the prejudice to Defendant and the public interest for pretrial hearings.[25]

Likewise, courts might allow pseudonymity while a settlement seems to be looming, but saying "[t]his is subject to change if the settlement craters."[26] To be sure, such pseudonymity isn't as valuable to the party as permanent pseudonymity—but it can still be quite valuable, given that over 98% of all cases are terminated before trial.

 

[1] Doe v. Delta Airlines Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff'd, 672 F. App'x 48 (2d Cir. 2016); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *3 (E.D.N.Y. Oct. 14, 2020); Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); Doe v. Zinsou, No. 19 CIV. 7025 (ER), 2019 WL 3564582, *7 (S.D.N.Y. Aug. 6, 2019); San Bernardino County Dep't of Pub. Soc. Servs. v. Superior Court, 232 Cal. App. 3d 188 (1991) ("open proceedings discourage perjury"); see also Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020) ("defendants would not be able to fully and adequately cross-examine the plaintiff" because of plaintiff's anonymity).

[2] Roe v. Does 1–11, No. 20-CV-3788-MKB-SJB, at 11 (E.D.N.Y. Oct. 14, 2020).

[3] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596–97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring).

[4] Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff'd, 672 F. App'x 48 (2d Cir. 2016); see also Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349, *7 (S.D.N.Y. May 3, 2021); Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174, *3 (E.D.N.Y. Oct. 14, 2020); Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006); San Bernardino County Dep't of Pub. Soc. Servs. v. Superior Court, 232 Cal. App. 3d 188 (1991); Steinman, supra note 7, at 19.

[5] Id.

[6] Doe v. Purdue Univ., No. 4:18-CV-72-JVB-JEM, 2019 WL 1960261 (N.D. Ind. Apr. 30, 2019) ("The hypothetical witness suggested by Duerfahrd's argument is unknown to both parties, but knows relevant information as to Plaintiff's specific claims against Duerfahrd, and would come forward on his or her own when Plaintiff's name is released (but not if Duerfahrd's name is the only one released). The scenario appears unlikely, and Duerfahrd offers no argument as to why he would expect such a witness.").

[7] See Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979) (noting that pseudonymity "may cause problems to defendants engaging in discovery and establishing their defenses"); Doe v. McLellan, No. CV205997GRBAYS, 2020 WL 7321377, *3 (E.D.N.Y. Dec. 10, 2020) ("Plaintiff's anonymity would make it more difficult to obtain witnesses and witness testimony"); De Angelis v. Nat'l Ent. Grp. LLC, No. 2:17-CV-00924, 2019 WL 1071575, *4 n.1 (S.D. Ohio Mar. 7, 2019).

[8] See, e.g., Rapp v. Fowler, No. 20-CV-9586 (LAK), 2021 WL 1738349, *7 (S.D.N.Y. May 3, 2021) (discussing would-be pseudonymous plaintiff's suggestion that defendant be allowed "to use and disclose [plaintiff]'s name for discovery purposes on the condition that anyone who becomes privy to his identity would be obliged to keep it confidential"); C.S. v. Choice Hotels Int'l, Inc., No. 2:20-CV-635-JES-MRM, 2021 WL 2792166, at *13 (M.D. Fla. June 11, 2021) (approving of such an order), report & recommendations rejected, id. (M.D. Fla. Sept. 14, 2021) (rejecting such an order because "requiring the written agreement of potential witnesses before any disclosures can be made would significantly hamper defendants' ability to investigate"); J.C. v. Choice Hotels Int'l, Inc., No. 20-cv-00155-WHO, 2021 WL 1146406, at *6 (N.D. Cal. Mar. 4, 2021) (approving of such an order); Doe v. PreCheck Inc., No. CV-21-01129-PHX-DLR, at 1–2 (D. Ariz. Sept. 30, 2021) (issuing such an order); Doe No. 2. v. Kolko, 242 F.R.D. 193, 199 (E.D.N.Y. 2006) (issuing such an order); Ressler, #WorstPlaintiffEver, supra note 7, at 829 (advocating for such orders).

[9] See, e.g., C.S., 2021 WL 2792166, at *19 (noting, as examples, "a situation where an acquaintance or family member of plaintiff would need to sign an agreement prohibiting them from ever revealing information related to plaintiff's identity, thus making it impracticable and likely to deter witnesses," or "a potential witness [being] asked to agree to be bound by a Court order without knowing what information he or she was agreeing to maintain confidential or even whether he or she had knowledge of information that should be maintained as confidential"); Doe v. Weinstein, 484 F. Supp. 3d 90, 96-97 (S.D.N.Y. 2020) (refusing to allow plaintiff to be pseudonymous in part because this would make it harder for defendant to depose witnesses).

[10] See id. at 97 (citing Michael v. Bloomberg L.P., No. 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015)).

[11] Michael v. Bloomberg L.P., No. 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015); In re Ashley Madison Customer Data Security Breach Litig., MDL No. 2669, 2016 WL 1366616, at *4 (E.D. Mo. Apr. 6, 2016); Doe v. City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2289187, at *3 (S.D. Ind. Aug. 7, 2006) ("In addition, Plaintiffs brought this action as a class action. They therefore represent not only themselves, but the thousands of sex offenders subject to the ordinance. The public interest is not in being able to identify any one Plaintiff, but in being able to follow the case to determine how the constitutional issues are resolved."); Sherman v. Trinity Teen Solutions, Inc., No. 20-CV-00215-SWS, 2021 WL 3720131 (Feb. 11, 2021) (likewise); Doe v. U.S. Healthworks Inc., No. CV1505689SJOAFMX, 2016 WL 11745513, *5 (C.D. Cal. Feb. 4, 2016) (likewise).

[12] But see Doe v. City of Apple Valley, No. 20-cv-499, at 4 (D. Minn. Mar. 5, 2020) ("[T}he District Court will still hear any motion for class certification in this matter and is more than capable of ensuring the Plaintiffs are fair representatives of the proposed classes"); Roe v. Operation Rescue, 123 F.R.D. 500, 505 (E.D. Pa. 1988) (allowing pseudonymous class representatives); Doe v. Mundy, 514 F.2d 1179, 1182 (7th Cir. 1975) (likewise).

[13] Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); Doe v. Ayers, 789 F.3d 944, 946 (9th Cir. 2015); James v. Jacobson, 6 F.3d 233, 240–41 (4th Cir. 1993); Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015) ("As many jurors and any reader of New York area newspapers surely would be aware, parties to lawsuits routinely contend, at trial, with disclosure of embarrassing incidents such as public intoxication—indeed, trials commonly bring to light far more prejudicial, damning, and colorful episodes. Were Doe permitted to proceed on a no-name basis, one or more jurors might conclude that she, for unknown reasons, merited extra-solicitous treatment. This might skew the jury's assessment of Doe's credibility and her claims."), aff'd, 672 F. App'x 48 (2d Cir. 2016); Doe v. Rose, No. CV-15-07503-MWF-JCX, 2016 WL 9150620 (C.D. Cal. Sept. 22, 2016); Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) ;EEOC v. Spoa, LLC, 2013 WL 5634337, at *3 (D. Md. Oct. 15, 2013).

[14] Tolton v. Day, No. CV 19-945 (RDM), 2019 WL 4305789 (D.D.C. Sept. 11, 2019); A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995) ("Defendant might well be prejudiced in defending against a complaint by being perceived as a wrongdoer by the very fact of anonymity alone.").

[15] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021).

[16] See James, 6 F.3d at 242 (reasoning that they could be).

[17] Lawson v. Rubin, No. 17CV6404BMCSMG, 2019 WL 5291205 (E.D.N.Y. Oct. 18, 2019); see also Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 572, 575 (S.D.N.Y. 2004).

[18] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021).

[19] Cf. Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996) ("The doctrine of judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position taken in the same or some earlier proceeding," when "a court has relied on the position urged").

[20] See, e.g., Ceglia v. Zuckerberg, 772 F. Supp. 2d 453 (W.D.N.Y. 2011) ("Having successfully persuaded a different federal district court that his domicile as of September 2004 was New York, [Facebook founder Mark] Zuckerberg would be judicially estopped from denying otherwise now."); Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012) ("This is a textbook case for applying judicial estoppel. Monroe's representatives took one position on Monroe's domicile at death for forty years, and then changed their position when it was to their great financial advantage …."); Techno-TM, LLC v. Fireaway, Inc., 928 F. Supp. 2d 694, 698 (S.D.N.Y. 2013) ("The representation to the Washington federal court that they had not yet established a state of permanent residence is in complete conflict with the representation to this court that the Huhses had changed their domicile from Costa Rica to Washington."); Sarauw v. Fawkes, 66 V.I. 253, 268–69 (2017) (citing other such cases).

[21] Cf. Part IV, which describes a vexatious litigant's attempt to seal or pseudonymize many of his past cases; see also Chaker v. San Diego Superior Ct., No. D075494, 2021 WL 1523009, *3 (Cal. Ct. App. Apr. 19, 2021) (declining to take the litigant's name off the vexatious litigant list, in part based on the court's own search for Chaker's past nonpseudonymous cases, beyond the ones he had disclosed to the court).

[22] Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1979); Roe v. Ingraham, 364 F. Supp. 536, 541 n.7 (S.D.N.Y. 1973); see also Doe v. Univ. of Louisville, No. 3:17-CV-00638-RGJ, 2018 WL 3313019, *3 (W.D. Ky. July 5, 2018); Doe v. Kentucky Cmty. & Tech. Coll. Sys., No. CV 20-6-DLB, 2020 WL 495513, *2 (E.D. Ky. Jan. 30, 2020), reconsideration denied, No. CV 20-6-DLB, 2020 WL 998809 (E.D. Ky. Mar. 2, 2020); Free Mkt. Comp. v. Commodity Exch., Inc., 98 F.R.D. 311, 313 (S.D.N.Y. 1983); EW v. New York Blood Ctr., 213 F.R.D. 108, 110 (E.D.N.Y. 2003).

[23] Cf. Michael v. Bloomberg L.P., 14-cv-2657, 2015 WL 585592, at *4 (S.D.N.Y. Feb. 11, 2015) (rejecting pseudonymity for a proposed class representative, because pseudonymity "may … preclude potential class members from properly evaluating the qualifications of the class representative").

[24] Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000); see also Steinman, supra note 7, at 36.

[25] Doe v. Elson S Floyd Coll. of Med. at Washington State Univ., No. 2:20-CV-00145-SMJ, 2021 WL 4197366 (E.D. Wash. Mar. 24, 2021); see also, e.g., Doe v. MacFarland, 117 N.Y.S.3d 476, 498 (Sup. Ct. 2019) ("For example, if a jury trial is requested, will plaintiff seek to conceal her true identity from the jurors? Will plaintiff seek permission to testify as 'Jane Doe'? If so, the Court will have to consider whether the grant of pseudonymity to plaintiff can be mitigated by an appropriate jury charge or whether allowing plaintiff to do so visits other prejudice to defendant…. Those issues await later determination."); Doe v. Rose, No. CV-15-07503-MWF-JCX, 2016 WL 9150620 (C.D. Cal. Sept. 22, 2016) ("while not discounting the public's strong interest in encouraging victims of sexual assault to pursue their rights in court, the Court finds that, for purposes of the trial itself, the balance of the public interest has shifted to favor public access and disclosure"); Doe 1 v. Ogden City School Dist., 120CV00048HCNDAO, 2021 WL 4923728, *3 n.2 (D. Utah Oct. 21, 2021); see also S.Y. v. Uomini & Kudai, LLC, No. 2:20-CV-602-JES-MRM, 2021 WL 3054871, *6 (M.D. Fla. June 11, 2021); Al Otro Lado, Inc. v. Nielsen, No. 17-CV-02366-BAS-KSC, 2017 WL 6541446, *8 (S.D. Cal. Dec. 20, 2017). But see Doe v. Neverson, 820 F. App'x 984, 987–88 (11th Cir. 2020) (suggesting that pseudonymity could be allow at trial as well).

[26] SEB Inv. Mgmt. AB v. Symantec Corp., No. C 18-02902 WHA, 2021 WL 3487124, *2 (N.D. Cal. Aug. 9, 2021).