The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Court Depseudonymizes Plaintiff, After Evidence Related to Plaintiff's Past Cases Emerges

“Plaintiff has filed numerous lawsuits, several of which involve circumstances similar to this case. In some she has been permitted to proceed anonymously; in others, she has not. Regardless, Defendant maintains that Plaintiff is a ‘vexatious litigant.’ This goes directly to Plaintiff’s credibility, and Defendant should not be hampered in pursuing that defense.”


An interesting decision in Doe v. Wang, decided Nov. 8, 2021 by Magistrate Judge Michael Hegarty (D. Colo.), but just unsealed last week in response to a motion (filed by me) to unseal. (Such sealed court orders and opinions are only very rarely allowed, and even if there is confidential information that needs to be kept private, redaction, as below, is seen as a much preferred alternative to outright sealing.) Consistently with the unsealing order, the case is now titled Luo v. Wang.

Luo had originally sued Wang as a Jane Doe, alleging (among other things) that he libeled her by saying that she had falsely accused a mutual friend of rape, and disclosed facts related to that rape. Shortly after the case was filed and before Wang was served, the court let Luo proceed pseudonymously; but a year later, on Wang's motion, the court reconsidered the matter:

[Tenth Circuit] courts look to three, exceptional contexts in which a pseudonym is appropriate: (1) "matters of a highly sensitive and personal nature;" (2) situations involving a "real danger of physical harm;" and (3) cases "where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." In considering these contexts, "[t]he risk that a plaintiff may suffer some embarrassment is not enough." Additionally, the Tenth Circuit has found it "proper to weigh the public interest in determining whether some form of anonymity is warranted."

Defendant has provided two declarations in support of his Motion. The first is from [Redacted], a [Redacted] licensed attorney and counsel of record for the defendants in the lawsuit titled [Redacted], in the [Redacted] of [Redacted]. After reviewing the Third Amended Complaint in this case, the complaint in [Redacted], communications with [Redacted] and Defendant's counsel, and "other research [she has] performed and others have performed at [her] direction as to the various names and aliases for [Redacted] concludes that the plaintiff in the [Redacted] case is the same "Jane Doe" in the [Redacted] case and in this matter. {The Court notes [that] Plaintiff essentially concedes that the cases cited by Defendant involve her. Indeed, the Third Amended Complaint cites to some of them.}

Further, Ms. [Redacted] avers that the [Redacted] case revolves around Plaintiff's "efforts to have a man she had been dating arrested and charged for a sexual assault that allegedly took place in early April 2019." Plaintiff's resulting claim in the [Redacted] case stemmed from the defendants' decision not to prosecute the alleged sexual assault. Disputing that claim, Ms. [Redacted] argues that "messages on plaintiff's phone from late May 2019 confirmed that plaintiff had become angry at the man [accused of rape] for allegedly cheating on her; he accused plaintiff of posting negative information about him on the internet; and when he confronted plaintiff[,] she threatened to take action regarding his job." The court in that case initially denied Plaintiff's request to proceed anonymously, but later granted the request to proceed using her initials. Ms. [Redacted] asserts that although Plaintiff proffered that growing media attention necessitated the need for anonymity, it was Plaintiff who had contacted the media and that this information was not disclosed until her deposition in March 2021.

During the course of that litigation, Ms. [Redacted] learned two relevant pieces of information. First, Plaintiff "had filed at least three other lawsuits against other private individuals and public entities in addition to the matter against [her] clients and the present matter in Colorado." Second, Plaintiff "confirmed to [[Redacted]] that she is a criminal defendant in an Orange County Superior Court case. The victim in that case is another man with whom plaintiff appears to have had a romantic relationship. Based on [her] review of public records related to that case, on July 26, 2021, [Plaintiff] was convicted of three counts (California Penal Code section 594 (a)/(b)(2)(A) Vandalism; California Penal Code section 273.6 (a) Disobeying domestic relations court order; and California Penal Code section 647(j)(4)(A) Disorderly conduct unlawful dissemination of private photographs and recordings)."

The second declaration Defendant provides is from [Redacted], a [Redacted] licensed attorney and counsel of record for the defendant in the [Redacted] case. Ms. [Redacted] declares that the claims against her client stemmed from a relationship between him and Plaintiff between November 2013 and July 2014. According to Ms. [Redacted], "[f]ive years after they broke up, Plaintiff claims she 'learned' that she was raped by [the defendant] during their consensual relationship." In the [Redacted] case, Plaintiff was sanctioned $2,000 for discovery conduct that included failing to propound appropriate discovery and obstructing the meet and confer process….

It is the responsibility of this Court to consider the specific circumstances of this case and weigh whatever privacy interest Plaintiff has against the public's right to know these proceedings. First, the Court finds that Plaintiff does have some privacy interest in this matter. The Third Amended Complaint asserts various claims against Defendant for his alleged disclosure of (and his allegedly false representations about) Plaintiff's sexual assault. Sexual misconduct, including assault, certainly falls under the category of "matters of highly sensitive and personal nature."

But that is not the end of the inquiry. The public has a legitimate interest in knowing the facts of this case and the parties involved…. "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties." … Plaintiff has filed numerous lawsuits, several of which involve circumstances similar to this case. In some she has been permitted to proceed anonymously; in others, she has not. Regardless, Defendant maintains that Plaintiff is a "vexatious litigant." This goes directly to Plaintiff's credibility, and Defendant should not be hampered in pursuing that defense…. [A] court may consider "whether proceeding anonymously creates 'a unique threat of fundamental unfairness to the defendant'" …

Nor should the public be prevented from reaching its own conclusions in this case. However, that will not occur, and Defendant will be substantially prejudiced, if he were forced to defend himself publicly while "Plaintiff is permitted to hurl [her] accusations from behind a cloak of anonymity."

Moreover, this is not a case in which "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Here, the lawsuit is premised entirely on Defendant's alleged disclosure of Plaintiff's assault. In other words, "Plaintiff is not suing in this Court in order to prevent the disclosure of [her] private [matter]; rather, [s]he is suing for compensation for disclosure that has already happened."

Plaintiff argues that forcing the disclosure of her identity subjects her to re-victimization. That is a valid concern in these types of cases. However, this is far from the typical case. While Plaintiff may be a victim of sexual assault, Defendant alleges that he too is a victim of Plaintiff's dissemination of sensitive material. [See the Answer for more details on this, which seemingly involves dissemination of a "private photograph" allegedly "altered" by Plaintiff "to make it look as though Defendant were engaged in lewd acts." -EV] {Again, the Court recognizes that Plaintiff denies doing so.} Additionally, Defendant is not accused of being the one to sexually assault Plaintiff. Put differently, the need to divulge any details about the assault will be minimal, if not nonexistent. The prejudice to Defendant and the nature of the parties' claims and defenses' weigh against whatever threat of re-victimization may occur in this particular case.

The Court has considered the totality of the circumstances in this matter in determining whether to continue to permit Plaintiff to operate under a pseudonym. In this unusual case, the balance of all facts before the Court weighs in favor of disallowing Plaintiff from continuing to proceed under "Jane Doe." …

In doing so, the Court is cognizant that Plaintiff has been permitted to use a pseudonym in some of her other cases. In prohibiting that here, the Court potentially runs afoul of other court orders. Plaintiff argues as much. To prevent this from occurring, the Court pursuant to D.C.Colo.LCivR 7.2 directs the Clerk of the Court to place under [seal] this Order, the Motion filed at ECF 101, the Response filed at ECF 105, and the Reply filed at ECF 109 until further order of the Court….

In granting my motion to unseal the order, the court agreed that its concerns about not undermining the other courts' pseudonymization orders could be satisfied via partial redactions rather than outright sealing. (Note that the other cases are, I think, identifiable in any event with a bit of searching based on filings in this case that have never been sealed, including a filing by the plaintiff herself; but I take it that the court's view is that it should take some modest steps towards making that harder, rather than just publicly identifying the cases pseudonymized by other courts as having been filed by Luo.)