Free Speech

No Pseudonymity for Plaintiff Alleging Disability Discrimination

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From Doe v. N.M. Bd. of Bar Examiners, decided today by Magistrate Judge Steven C. Yarbrough (D.N.M.):

… Plaintiff filed her complaint under the pseudonym "Jane Doe." However, proceeding anonymously is not contemplated by the Federal Rules of Civil Procedure. Rather, Rule 10(a) requires that the title of a complaint "name all the parties," and Rule 17(a) prescribes that "[a]n action must be prosecuted in the name of the real party in interest." Nonetheless, the Tenth Circuit has recognized there may be cases in which "exceptional circumstances" warrant permitting a party to proceed anonymously. Femedeer[1] v. Haun (10th Cir. 2000). Accordingly, the Court required Plaintiff to show cause why her full name should not be fully disclosed in public filings with the court….

The public has an "important interest in access to legal proceedings." Moreover, without a party's name in the public record, "it is difficult to apply legal principles of res judicata and collateral estoppel." "Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials." "A plaintiff should not be permitted to proceed under a pseudonym unless the need for anonymity outweighs the public interest in favor of openness." "Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassment is not enough."

In her petition to proceed anonymously, Plaintiff alleges that this case involves matters of a highly sensitive and personal nature because it alleges discrimination based on her disability; accordingly, her medical information will become part of the case. She is concerned that attaching her name to the case will trigger mental and physical stressors and will allow the public (including future employers and clients) access to her medical records. She cites generally to her privacy rights under the ADA and HIPPA.

Plaintiff's desire for anonymity does not outweigh the public's interest in open court proceedings. Disclosure of the general nature of a plaintiff's disability occurs in virtually all ADA and disability discrimination cases. Concern about such generalized disclosure is not an exceptional circumstance that warrants anonymity. See Doe v. Regents of Univ. of New Mexico (D.N.M. Mar. 10, 1999) (finding the plaintiff's allegations of clinical depression insufficient to allow her to proceed anonymously: "Clinical depression, like any mental illness, may carry with it the perception of a societal stigma; Plaintiff has, however, made no exceptional showing of the need for privacy in this case."). Likewise, Plaintiff's speculative concerns about future employment are insufficient to allow her to proceed anonymously.

To be clear, the Court is not requiring Plaintiff to file medical records or other detailed medical information publicly. In her complaints, Plaintiff only generally describes her alleged medical conditions … (mentioning permanent pulmonary disabilities, multiple permanent and terminal disabilities, visual impairment, and chronic pain). As the case proceeds, Plaintiff is welcome to propose a protective order for specific documents and medical records she believes should remain protected and the Court will address any such requests at that time. However, a disability-discrimination plaintiff's concern that the general nature of her alleged disability will be disclosed as part of her lawsuit does not override the strong presumption in favor of open proceedings and, therefore, does not serve as a basis to proceed anonymously.

For similar reasons, I expect that the plaintiffs in Doe v. Gerken (the new Yale Law School lawsuit) will likely not be able to continue litigating under pseudonyms, though I hope to blog more about that soon. This having been said, the decisions on all these subjects are quite split; here's an excerpt from my forthcoming article on The Law of Pseudonymous Litigation.

Communicable disease[1]

Courts are divided on whether to allow pseudonymity where disclosing the party's name might reveal that the party has been infected with HIV,[2] herpes,[3] or other communicable (and generally sexually transmitted) illnesses.[4]

Mental illness or disorder

Courts sometimes find pseudonymity is justified to avoid revealing a party's mental illness or disorder,[5] and sometimes find it isn't.[6]

Nonmental, noncommunicable illness or disability

Courts generally appear not to allow pseudonymity to conceal nonmental, noncommunicable illness or disability,[7] though at least one court has disagreed.[8]

Drug or alcohol abuse or addiction

Courts likewise appear not to generally allow pseudonymity as a means of preventing revelation of a parties history of drug abuse or addiction[9] or alcohol abuse or addiction.[10] In the words of one case,

[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.[11]

At least one case, though, has allowed pseudonymity in such a situation.[12]

[1] Doe, a deer, a feme deer. Actually, Femedeer was a pseudonym chosen by the plaintiff in that case; for all I know, that might have been the reason for that name.

[2] Pseudonymity allowed: Roe v. City of Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. Wis. 1999); W.G.A. v. Priority Pharmacy, Inc., 184 F.R.D. 616 (E.D. Mo. 1999); Doe v. Brennan, No. 19-5885, ECF Nos. 17-18 (E.D. Pa. Apr. 27, 2020); Doe v. Russ, No. 1:20-CV-07769-AT (S.D.N.Y. Oct. 29, 2020), granting Motion to Proceed Under Pseudonym, id. (S.D.N.Y. Oct. 14, 2020); Doe v. Tris Comprehensive Mental Health, Inc., 298 N.J. Super. 677, 682–83 (Law Div. 1996). Pseudonymity not allowed: 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. Bell Atlantic Bus. Sys. Servs., Inc., 162 F.R.D. 418, 420 (D. Mass. 1995)

[3] Pseudonymity allowed: Order, Doe v. Cochran, No. FSTCV155014849S, entry no. 113.00 (Sept. 28, 2015); Doe v. Weinzweig, 40 N.E.3d 351, 363 (Ill. App. Ct. 2015) (noting that the circuit had allowed pseudonymity but concluding that the question wasn't properly before the court on appeal). Pseudonymity not allowed: Unwitting Victim v. C.S., 47 P.3d 392, 401 (Kan. 2002); Anonymous v. Lerner, 124 A.D.3d 487, 488 (2015); Anonymous v. Simon, No. 13 CIV. 2927 RWS, 2014 WL 819122, *2 (S.D.N.Y. Mar. 3, 2014).

[4] Pseudonymity allowed: EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 112 (E.D.N.Y. 2003) (hepatitis B); Doe v. O'Neill, 1987 WL 859818, at *1 (R.I. Super. Jan. 6, 1987) (chlamydia and gonorrhea). Pseudonymity not allowed: Geico Gen. Ins. Co. v. M.O., No. 21-2164-DDC-ADM, 2021 WL 4476783 (D. Kan. Sept. 30, 2021) (HPV).

[5] Doe v. State Bar of Cal., No. 3:20-cv-06442-LB (N.D. Cal. Sept. 21, 2020), granting Motion, id. (N.D. Cal. Sept. 14, 2020) (ADHD, generalized anxiety disorder, trichotillomania [compulsive pulling out of hair]); Doe v. Tonti Mgmt. Co., No. 2:20-cv-02466-LMA-MBN (E.D. La. Sept. 11, 2020), granting Motion, id. (E.D. La. Sept. 9, 2020) ("major depressive disorder, anxiety, and PTSD caused by a sexual assault"); Doe v. Provident Life & Accident Insurance Co., 176 F.R.D. 464, 468–69 (E.D. Pa. 1997) ("general anxiety disorder, dysthymic disorder, adult attention deficit disorder, personality disorder, immature, inadequate, passive aggressiveness, and occupational stress with previous job situation"); Doe v. Standard Ins. Co., No. 1:15-CV-00105-GZS, 2015 WL 5778566, *2 (D. Me. Oct. 2, 2015); Doe v. Hartford Life & Accident Insurance Co., 237 F.R.D. 545, 550 (D.N.J. 2006) ("severe bipolar disorder"); Doe v. Unitedhealthcare Insurance Company, No. 3:20-cv-06574-EMC (N.D. Cal. Sept. 24, 2020), granting Plaintiff's Ex Parte Motion for Administrative Relief to Proceed Under Pseudonym, id. (Sept. 18, 2020); Doe v. Garland, No. 2:21-cv-00071-LGW-BWC, at 5 (S.D. Ga. July 30, 2021) ("PTSD, Major Depressive Disorder and suicidal ideation or Suicidal Behavior Disorder").

[6] Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) ("obsessive-compulsive disorder," which the court concluded was not sufficiently stigmatized); Doe v. UNUM Life Ins. Co. of Am., 164 F. Supp. 3d 1140 (N.D. Cal. 2016) ("general anxiety disorder"); Doe ex rel. Doe v. Harris, No. 14-cv-00802, 2014 WL 4207599, at *2 (W.D. La. Aug. 25, 2014) (disorder that "rendered [plaintiff] perpetually childlike and vulnerable"); Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137, 140 (S.D. Ind.1996) (past psychiatric hospitalization); Doe v. Indiv. Members of Indiana State Bd. of Law Examiners, No. 1:09-cv-00842 (S.D. Ind. Aug. 8, 2009) (anxiety disorder and PTSD); MacInnis v. Cigna Grp. Ins. Co. of Am., 379 F. Supp. 2d 89, 90 (D. Mass. 2005) ("depressive/‌‌anxiety disorder"); Doe v. Univ. of Akron, No. 5:15-CV-2309, 2016 WL 4520512, *4 (N.D. Ohio Feb. 3, 2016) ("ADHD, anxiety, depression"); G.E.G. v. Shinseki, No. 1:10–cv–1124, 2012 WL 381589, at *2 n.1 (W.D. Mich. Feb. 6, 2012) ("Attention Deficit Disorder/‌‌unspecified learning disorder" and "anxiety disorder"); Doe v. Zuchowski, No. 221CV01519APGEJY, 2021 WL 4066667, at *2 (D. Nev. Sept. 7, 2021) ("stress-induced Tinnitus (non-stop ringing in the ears) for ten (10) months now as well as a total collapse of his mental health induced by the condition"); Doe v. Univ. of the Incarnate Word, No. SA-19-CV-957-XR, 2019 WL 6727875, *3 (W.D. Tex. Dec. 10, 2019) (ADHD); Wescott v. Middlesex Hosp., No. MMXCV186020250, 2018 WL 2292916, *3 (Conn. Super. Ct. May 1, 2018) (bipolar disorder and schizoaffective disorder); cf. Alexandra H. v. Oxford Health Ins., Inc., No. 11-cv-23948, 2012 WL 13194938, *1–*3 (S.D. Fla. Feb. 10, 2012) (rejecting pseudonymity when plaintiff was suffering from "anorexia nervosa, obsessive compulsive disorder, severe depression and suicidal ideation," though noting that she "presents a more compelling case for allowing anonymity with her untimely Reply memorandum," albeit a case that the court rejects on procedural grounds: "[t]o grant her Motion . . . would be to reward Plaintiff for unfair briefing practices where [Defendant] is not permitted to respond to new factual and legal assertions").

[7] Anonymous v. Medco Health Sols., Inc., 588 F. App'x 34 (2d Cir. 2014) ("Plaintiff claims that 'further disclosure of his [Parkinson's Disease] to the public through this litigation could only exacerbate the harm done by Defendants[.]' He notes that this would 'adversely impact his patient base' as 'he is a specialist who relies largely upon referrals from other physicians.' But this claim is vague and far-fetched. Even if other physicians were to learn of the plaintiff's disease through his name being listed in the case caption, they, more so than others, would be able to understand that his condition has no bearing on his ability to diagnose and treat patients. Indeed, the harm outlined by plaintiff is rather speculative in nature."); Endangered v. Louisville/‌‌Jefferson County Metro Government Dept. of Inspections, 3:06-cv-250, 2007 WL 509695, at *1–2 (W.D. Ky. Feb. 12, 2007) (mobility-impairing disabilities); Parlante v. Am. River Coll., No. 2:20-CV-02268-KJM-JDP (PS), 2021 WL 4123807, *1 (E.D. Cal. Sept. 9, 2021) ("more than 50% blind[ness]," Motion, id. at 1 (Nov. 13, 2020)).

[8] Heather K. by Anita K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1256 (N.D. Iowa 1995) ("severe respiratory and cardiac conditions").

[9] D.E. v. John Doe, 834 F.3d 723, 728–29 (6th Cir. 2016); Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137 (S.D. Ind. 1996); Doe v. Heitler, 26 P.3d 539 (Colo. Ct. App. 2001); K.W. v. Holtzapple, 299 F.R.D. 438, 439–40, 442 (M.D. Pa. 2014).

[10] Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992).

[11] Doe v. Main Line Hospitals, Inc., No. 2:20-cv-02637-KSM, at 10 (E.D. Pa. Sept. 1, 2020).

[12] Smith v. United States Off. of Pers. Mgmt., No. 2:13-CV-5235, 2014 WL 12768838 (E.D. Pa. Jan. 21, 2014) (drug and alcohol addiction).