The Volokh Conspiracy

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Free Speech

No Pseudonymity in Yale Law School DinnerPartyGate Lawsuit


From yesterday's decision by Judge Sarah Merriam in Doe v. Gerken (D. Conn.) (now Stubbs v. Gerken):

[P]laintiffs, each of whom is or was a student at Yale Law School, allege that two deans of the Yale Law School, along with the Law School's Director of Diversity, Equity and Inclusion, "worked together in an attempt to blackball" plaintiffs from the prestigious job opportunities that are typically available to Yale Law School students. Plaintiffs allege that defendants "attempt[ed] to blackball" them from such opportunities "as retaliation" for plaintiffs "refusing to lie" in support of Yale University's investigation of a law school professor.

Pursuant to Rule 10 of the Federal Rules of Civil Procedure "[t]he title of the complaint must name all the parties[.]" "This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." … "Identifying parties in a proceeding is an important dimension of publicness, as people have a right to know who is using their courts." …

Courts have, however, "carved out a limited number of exceptions to the general requirement of disclosure of the names of parties, which permit plaintiffs to proceed anonymously." … "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting … the presumption of disclosure." …

Plaintiffs contend that the Court should allow them to proceed anonymously because their "claims are highly sensitive and personal in nature." Plaintiffs specifically contend that the use of their real names "will lead to further dissemination[]" of defendants' alleged "harassing, false, defamatory, and retaliatory statements[]" about plaintiffs, which is "likely to result in social stigmatization." …

Contrary to plaintiffs' contentions, this action does not involve highly sensitive matters of the type recognized by other Courts in the Second Circuit. This case does not involve minors, allegations of sexual misconduct, or some other truly sensitive matter…. "[C]ourts have found that evidence of embarrassment, social stigmatization, and economic harm provides an insufficient basis for proceeding anonymously." In sum, "courts should not permit parties to proceed pseudonymously just to protect the parties' professional or economic life." …

Second, plaintiffs have not adequately demonstrated that defendants or others will retaliate against them for filing this lawsuit. Plaintiffs rely on the alleged past retaliatory actions of defendants (which defendants categorize as "false"), but offer nothing to support the contention that "[f]urther identification of Plaintiffs poses a risk of retaliatory harm." Here, defendants are aware of plaintiffs' true identities. "[I]f a plaintiff specifically fears retaliation by defendants or their associates, prior disclosure to the defendants of the plaintiff's identity might moot any request for anonymity." For the same reasons, plaintiffs have not made an adequate showing that disclosure of their identities presents other harms….

Next, plaintiffs' identities have not been kept confidential. John Doe in particular has been publicly identified by various media outlets. The Court takes judicial notice of this information as set forth in defendants' briefing. "A plaintiff's interest in anonymity is weakened where anonymity has already been compromised." … [T]his factor also weighs in favor of disclosure.

The Court has considered the other factors [set forth by Second Circuit precedent on pseudonymity] and each generally weighs in favor of disclosure. Specifically: (1) plaintiffs are not particularly vulnerable to the harms of disclosure based on their status as graduate students ("If a plaintiff is not a child, this [vulnerability] factor weighs against a finding for anonymity."); (2) plaintiffs are not litigating against a governmental agency; and (3) the public's demonstrated interest in this litigation is furthered by requiring plaintiffs to disclose their identities…. "As a rule, lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties…. This is not a case that involves abstract challenges to public policies, but rather particular actions and incidents. Thus, open proceedings benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication. Indeed, it is the kind of case that further the public's interest in enforcing legal and social norms."

Finally, "[t]he public interest in scrutinizing judicial proceedings combined with the prejudice [defendants] would face from defending against claims prosecuted by an anonymous person at trial far outweigh [plaintiffs'] interest in not suffering professional embarrassment and any concomitant financial harm." …

Plaintiffs, each of whom is or was a law student, should appreciate that "[l]itigation is quintessentially public and public disclosure is in general an inherent collateral consequence of litigation." {Indeed, should this case proceed to trial, plaintiffs will likely testify as witnesses in open court. Thus, whether now or at a later stage of litigation, plaintiffs will have to face "public disclosure" that is "an inherent collateral consequence of litigation."}

As I noted in December, this result was very likely, given the weight of the precedent on the subject, though not a foregone conclusion. For more on pseudonymity, see this article draft.