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Crisp and Colorful Opinion on the Importance of Non-Pseudonymity in Litigation

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In doing research for my The Law of Pseudonymous Litigation article, I just ran across this opinion from two years ago by Judge Steven Seeger (N.D. Ill.), in In re: Boeing 737 Max Pilots Litigation; it articulated the main arguments against pseudonymity in a particularly effective way, so I thought I'd pass it along. As my article notes, courts do make exceptions to the litigate-in-your-own-name rule, and there are plausible arguments that pseudonymous litigation should be more commonly allowed; but this is still a good articulation of the dominant view:

Pilots X, Y, Z, A, B, C, D, E, F, G, H, I, J, K, L, & M sued Boeing about its 737 MAX airplanes. They flew planes that didn't crash, but they sued Boeing anyway. The anonymous pilots allege that they suffered an injury from the possibility of crashing, and from the ensuing grounding of the fleet. The public might wonder: who are these people? Boeing wants the public to know, too. Boeing filed a motion to unmask the plaintiffs, and force them to identify themselves as required by the Federal Rules.

Federal Rule 10(a) provides that every pleading "must name all the parties." The same rule applies to motions and other filings. Apart from the name of the Court itself, the names of the parties are the very first thing that members of the public typically see whenever they pick up a court filing. The names appear right at the top, front and center (or to the left), for all the world to see. At a glance, the public knows who is asking the Court to exercise its power, and who allegedly injured the plaintiff.

A party's name is usually the last thing that the public sees, too. It is common for attorneys to put the name of his or her client at the very end of each filing, right beneath the signature block. So, from beginning to end, like bookends, court filings tell the public who is asking the Court to do what.

The text of Rule 10(a) provides that parties "must" disclose their "name[s]," without exception. Not some of the parties—"all" of the parties. A number of Federal Rules expressly create exceptions for "good cause." … But Rule 10(a) isn't one of them.

The duty to self-identify is a small part of a much bigger tradition of transparency in federal court. Courts do the people's business out in the open. The courthouse is open to the public every business day. Hearings and trials welcome visitors, and the public can hear live testimony, see the evidence, and get their hands on almost all public filings. Anyone who wants to know what's going on can walk right in.

The public has a legitimate interest in the facts of a lawsuit, and the most basic fact is who is suing whom. "This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." "Pseudonymous litigation undermines the public's right of access to judicial proceedings. The public has an interest in knowing the names of the litigants … and disclosing the parties' identities furthers openness of judicial proceedings."

"Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." "A trial is a public event. What transpires in the court room is public property…. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."

Transparency builds confidence. Litigating behind a curtain creates a shroud of mystery, giving the impression that something secret is going on. Secretive use of government power fuels suspicion and mistrust, and undermines confidence in the process and the outcome. See Richmond Newspapers, Inc. v. Virginia (1980) ("People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."); see also GEA Group AG v. Flex-N-Gate Corp. (7th Cir. 2014) ("Secrecy in judicial proceedings is disfavored, as it makes it difficult for the public (including the bar) to understand why a case was brought (and fought) and what exactly was at stake in it and was the outcome proper."); Goesel v. Boley Intern. (H.K.) Ltd. ("The reason for this right of public access to the judicial record is to enable interested members of the public, including lawyers, journalists, and government officials, to know who's using the courts, to understand judicial decisions, and to monitor the judiciary's performance of its duties.").

Suing someone anonymously is unfair to a defendant, too. There is a structural asymmetry in allowing an unnamed plaintiff to make allegations against a named defendant. A lawsuit inflicts harm on a defendant, but suing anonymously costs the plaintiff next to nothing. A no-name plaintiff is shielded by anonymity, and can accuse the defendant of misconduct "without shame or liability." As a matter of "[b]asic fairness," the playing field should be level. "If defendants get named, plaintiffs should too."

Adding one's name forces plaintiffs to put a little skin in the game. Public exposure helps to ensure that plaintiffs can back up what they say. It also promotes the longstanding interest in finding the truth through direct confrontation. "[D]efendants have a right to confront their accusers."

Public disclosure adds a healthy dose of accountability for the speaker. It is one thing to accuse someone of something anonymously; it is quite another to do so out in the open. Anonymity makes people feel less restrained in what they say. See, e.g., The Internet. Speaking behind a curtain can create a false sense of security, tempting whoever-they-are to say things that they wouldn't say if everyone knew who was talking. People tend to be a little more careful about what they say and write when they have to put their name to it. (Judges are no exception.)

Time and again, the Seventh Circuit has frowned on the disfavored practice of bringing claims incognito. See, e.g., Doe v. Smith (7th Cir. 2005) ("[T]his circuit's decisions … disfavor anonymous litigation…. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret."); Doe v. City of Chicago (7th Cir. 2004) ("Judicial proceedings are supposed to be open…. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity."); Coe v. County of Cook (7th Cir. 1998) ("We have criticized the overuse of pseudonyms in federal litigation, pointing out that the public has a right to know who is utilizing the federal courts that its tax dollars support.") ….

Despite the plain text of the rule, courts have carved narrow exceptions for uniquely vulnerable plaintiffs. For example, "fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." See also Doe v. Frank (11th Cir. 1992) ("A plaintiff should be permitted to proceed anonymously only in those 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.").

A party who wants to litigate in the dark must identify "exceptional circumstances" that justify a "departure from the normal method of proceeding in federal courts." Anonymous filing is an "extraordinary break with precedent," so granting leave is a "rare dispensation."

Plaintiffs here don't come close to meeting that standard. Boiled down, their motion basically argues that Boeing is a big, powerful company, and that they fear retaliation if they have to identify themselves. But Plaintiffs offer nothing concrete. A mere potential for retaliation, without more, is not enough to justify an extraordinary departure from public norms. If the fear of retaliation were enough, public disclosure would be the exception rather than the rule.

It is not intuitive how Boeing could retaliate against them, either. Plaintiffs don't even work for Boeing. They work for airlines who, in turn, purchased airplanes from Boeing. Plaintiffs do not back up the premise that Boeing controls who the airlines hire to fly their planes. Without more, it is a bit of a stretch to believe that there is a real risk of losing their jobs.

And even then, the potential harm to the Plaintiffs pales in comparison to the types of harms that typically receive protection. The worst-case scenario for the Plaintiffs is losing their jobs. That is no small thing, but transparency is no small thing either. At most, Plaintiffs allege a potential for economic harm, but "a threat of economic harm alone does not generally permit a court to let litigants proceed[ ] under pseudonym."

If Plaintiffs are worried about retaliation from Boeing, the cat is already out of the bag. Plaintiffs "already provided their identities to BOEING in affidavits filed with this Court under seal." Boeing already knows who they are. It is hard to see how hiding Plaintiffs from everyone except Boeing could protect them from Boeing.

There is nothing scandalous about being identified as a pilot of a commercial airplane, even the 737 MAX. Piloting a commercial airliner is no badge of shame. It is, for many people, a source of pride—something to aspire to.

It is possible that some or all of the soon-to-be-named Plaintiffs don't want to proceed with this lawsuit if they have to identify themselves. Plaintiffs' brief hints as much: "Plaintiffs can only proceed if their identities as well as the identities of all similarly situated pilots are protected from public disclosure." That is their choice. This Court will give Plaintiffs time to think it over.

Plaintiffs must file a third amended consolidated complaint by January 28, 2020. They must step into the light and sue in the open, or not at all. Plaintiffs must serve up their real names, not alphabet soup. The complaint "must name all the parties," as the Federal Rules expressly require….

NEXT: Today in Supreme Court History: January 5, 1931

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  1. Amen.

  2. "Anonymity makes people feel less restrained in what they say. See, e.g., The Internet. "

    Excellent quote, and so very accurate!

  3. The names of the pilots are of no interest to anyone but Boeing for discovery purposes.

    The pilots are worried about being blacklisted [and maybe social media harassment], the court ought to recognized this.

    1. Airlines and Boeing know who the pilots are already; the pilots' best protection against being blacklisted is publicity.

    2. Bob, I am going to say something that you, as a conservative, should appreciate.

      The plain language of that rule says that the parties must be named. Even the "exceptional circumstances" doctrine is a departure from the plain text. Why do you, as a conservative, want to expand an extra-textual exception to a plainly written rule?

      1. The rule itself is archaic and should be changed. It reflects a world where one had to go to the courthouse to review the case file. Collateral damage to reputation or exposure to ridicule was very slim.

        The Civil Rules are changed all the time, they are not sacred text.

        1. That didn't answer the question. Unless and until the rule is changed, should its plain text be followed or ignored?

  4. I have been to small claims court a few times and hated the publicity, but anonymity would be worse, and I made a short list once of reasons why.

    * General secrecy breeds distrust, especially where the rich and powerful are involved.

    * The judicial system is ripe for corruption and bias. People need to know the records of police, investigators, prosecutors, judges, forensic labs, witnesses, and the entire industry.

    * People want to know who to trust, who to boycott, who to shun, who to keep an eye on, who has redeemed themselves, who is worth taking a chance with. Employers and employees, lenders and borrowers, buyers and sellers, guardians and wards, all want to know about each other's legal history.

    * Everybody wants to know about the baptists and bootleggers.

    It doesn't take many exceptions to destroy people's trust in the system.

  5. Other exceptions:
    99.999% of the plaintiffs in class actions
    The real parties in e.g., securities litigation (yes, there is a nominal "named plaintiff," but nobody seriously believes they have any say in anything)
    Some administrative agency actions (e.g., ex parte patent reviews. trademark objections)
    Whistleblower stuff (even though they are strongly protected by civil service laws)

  6. Whatever might be the need occasionally to defeat transparency and frustrate the public’s right to know who’s suing whom and how well the judiciary is operating, here’s when it’s not at all appropriate (or effective): When conferring relief on habeas corpus to someone who had been tried and convicted in his true name at a public trial, whose conviction was affirmed in a published opinion of the California Supreme Court styled in his true name, who sought and was denied collateral relief in state court using his true name, and who sought and was denied federal habeas relief by the district court in proceedings docketed under his true name.

    http://calapp.blogspot.com/2015/05/doe-v-ayers-9th-cir-may-27-2015.html

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