The Volokh Conspiracy

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Free Speech

Yale's Opposition to Plaintiffs' Pseudonymity in Doe v. Gerken


Just filed yesterday (for more on the underlying case, see here); an excerpt:

Through counsel, Plaintiffs allege that Yale Law School administrators retaliated against them by discouraging a professor from hiring them as teaching assistants and damaging their career prospects. On this motion, they seek leave to proceed anonymously. Their brief fails to meaningfully address the familiar and well-settled standard in this circuit for such motions, offering no evidence on the three relevant factors the brief mentions and omitting any discussion of the seven other relevant factors. Their brief, and the complaint on which it is based, also fails to advise the court that the identities of the plaintiffs are already widely known.

The drafters of the Federal Rules of Civil Procedure understood the importance of transparency in our federal courts. Rule 10(a) states unequivocally that the "title of the complaint must name all the parties." To be sure, our courts have recognized extraordinary and narrow circumstances when that rule should be set aside and where plaintiffs can proceed pseudonymously: when, for example, sensitive allegations of sexual abuse are at issue, or a plaintiff has legitimate concerns about their physical safety from organized crime or mob violence.

This case comes nowhere near those circumstances, which represent potential tragedies averted by anonymity. This case's genre is not tragedy but soap opera. {See David Lat, As the Yale Law School World Turns, Original Jurisdiction (Dec. 3, 2021), ("Happy Friday. It's time for some updates in everyone's favorite legal-academic soap opera, As the Yale Law School World Turns.") (footnote omitted).} Two adult law students believe that administrators mishandled their concerns about another student who was gathering information about them and their supposed complicity in a professor's violations of law school expectations regarding social events with students. They say the law school administrators inaccurately described their lack of candor to another professor who was considering hiring them as teaching assistants. Moreover, public media outlets have already revealed their identities.

Those are not the sort of facts that justify plaintiffs hiding behind false names in court. Plaintiffs here seek anonymity because they worry about having to stand up publicly for what they allege, not because they fear for their lives or because they are vulnerable children. But standing up publicly for what you accuse someone else of doing is the ordinary price of admission to a courthouse.

This case is no exception. The case and the dispute that spawned it have already been the subject of widespread public reporting and discussion. The plaintiffs themselves admit that an entire "dossier" of information about them—including much of the information relevant to their allegations—was broadly disseminated to all Yale Law School students. Their defamation claim is grounded in the idea that professors and judges know all about the information in the "dossier." And this dispute has been followed by mainstream reporters and bloggers across the nation. The public has the right to know who brought their claims and to assess the claimants' candor. That will help the public determine whether, as plaintiffs' counsel publicly insists, this lawsuit "does advance the public good" [citing media quote], or whether it instead seeks to achieve something very different.

Under well-established Second Circuit precedent, regularly applied by district courts, Plaintiffs' request to mount their attack anonymously should be denied.

I think it's very likely (as I briefly mentioned shortly after the lawsuit was filed) that pseudonymity will indeed not be allowed in this case, but the law here is vague enough that the cases are all over the map; I'll blog shortly an excerpt of my Law of Pseudonymous Litigation draft on the subject.