The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting question raised in Doe v. Board of Regents, just filed yesterday; you can see the motion for TRO, and the motion for leave to file exhibits under seal, which sets forth the argument for pseudonymity:
Plaintiff files this case anonymously because of the extremely sensitive nature of the case, as Plaintiff's stellar reputation is a critical component to ensuring the public's trust for him to operate on their children for complex procedures, and Defendants' threat to report his suspension to the National Practitioner Data Bank and the State of Michigan Board of Medicine would cause irreparable damage to his reputation and career. As a result, this suit will require disclosure of information "of the utmost intimacy," and therefore, Plaintiff is entitled to protect his identity in this public filing by not disclosing his name.
The papers seem opaque on why the plaintiff was suspended, but here's a passage from the Complaint:
[38.] On more than one occasion, Dr. Doe approached Michigan Medicine leadership to report concerning administrative practices, particularly related to transparency and accountability.
[39.] Shortly after Dr. Doe raised his concerns, Michigan Medicine, all of a sudden, decided to bring up three recent non-event matters—none of which had a negative outcome or harmful consequence.
[40.] Michigan Medicine used those three recent matters as a basis for suspending Dr. Doe's clinical privileges indefinitely, and advising they were going to report him to the State of Michigan Board of Medicine, and they were going to report him to the National Practitioner Data Bank (NPDB), which they did.
I sympathize with the doctor's concerns, but I wonder whether they are materially different from those of any other employee plaintiff who claims that he was, say, improperly fired or suspended, but who is worried that identifying himself will just further publicize the allegations against him (however unsound he thinks those allegations are). More broadly, I wonder whether the situation is materially different from a criminal defendant who is worried that the very existence of charges against him will ruin his reputation and career, even if the charges are eventually disproved in court. So let me ask you folks what you think, and in particular whether your reactions fall in one of these four categories:
- People who file lawsuits should have to identify themselves, so the public can properly supervise what the court does in those cases. (This might leave room for more pseudonymity for defendants, criminal or civil, who don't voluntarily go to court; but, while that's a more important question, it's not raised by this case.)
- The doctor deserves pseudonymity, as do all other employees and others who sue claiming they were improperly fired or suspended but who don't want the allegations against them to be associated with their names.
- In this case, the complaint gives enough details that enterprising journalists and others who really want to investigate the matter can do so; but pseudonymity prevents quick Google searches for the doctor's name from coming up with the court docket, filings, and opinions. That's a good compromise, for any employee plaintiff.
- Most employment law plaintiffs should have to sue in their own names, for reasons given in option 1—but this situation is different, "because of the extremely sensitive nature of the case, as Plaintiff's stellar reputation is a critical component to ensuring the public's trust for him to operate on their children for complex procedures."