No Pseudonymous Quashing of House of Representatives Subpoena to Verizon

From Chief Judge Beryl Howell's opinion in Plaintiff v. Verizon Communications, Inc., just decided today:

Plaintiff seeks to proceed under pseudonym in the instant action seeking to quash a subpoena issued for this person's phone records to Verizon Communications, Inc. … by the United States House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol …. Plaintiff seeks to proceed pseudonymously because his/her "identity is wholly irrelevant to this Court's determination of whether the subpoena giving rise to this action is a lawful exercise of Congressional power and because Plaintiff otherwise has no non-public avenue to stop the production of Plaintiff's personal phone records."

Generally, a complaint must state the names of the parties …. The Federal and Local Rules [of Civil Procedure] promote a "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' … and, more specifically, from the tradition of open judicial proceedings." That "presumption of openness in judicial proceedings is a bedrock principle of our judicial system." Accordingly, courts "generally require parties to a lawsuit to openly identify themselves to protect the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." …

Courts … in special circumstances, may permit a party to proceed anonymously. A party seeking to do so, however, "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." Once that showing has been made, "the court must then 'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure.'" …

At this early stage of the litigation, this Court is not persuaded that plaintiff has met the burden of showing that legitimate privacy interests held by plaintiff outweigh the public's presumptive interest in knowing the details of this litigation. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….

[1.] Plaintiff argues that pseudonymity is justified because the Select Committee subpoena does not identify "the individuals believed to be affiliated with those [phone] numbers," and without a grant of anonymity, "Plaintiff would be forced to reveal their identity to the public without the Select Committee having to show any basis for the disclosure of the same." Plaintiff further argues that his/her identity is "wholly irrelevant" to the question of whether the Select Committee had "demonstrate[d] that it has a valid legislative purpose" for seeking plaintiff's phone records, and thus, whether the subpoena was issued legally.

Plaintiff's arguments are misguided. To be sure, the Select Committee's subpoena puts plaintiff in the position of having to choose whether to fight the subpoena publicly by asserting his/her rights, or acquiesce to the production of phone records, but such choices are part of "the annoyance and criticism that may attend any litigation." Whether the Select Committee has the requisite factual basis to seek plaintiff's phone records is a question for the district judge randomly assigned to this case to adjudicate on the merits. Merely because the Select Committee allegedly did not disclose plaintiff's identity in seeking the subpoena is irrelevant to the question of whether plaintiff may proceed with this suit in federal court without doing so.

[2.] [T]he "relevance" of a plaintiff's identity to the underlying claims carries little weight in determining whether his/her privacy interests outweigh the public's presumptive interest in knowing the details of the litigation. Plaintiffs regularly litigate suits under their own names where their personal identity is irrelevant to the substance of the case; even if plaintiff's identity has no bearing on the legal basis for the Select Committee's subpoena, this separation does not justify removing plaintiff's identifying information from the legal proceeding entirely….

[3.] [T]he asserted risk of retaliatory [physical or mental] harm is both speculative and minimal. Plaintiff asserts that this "challenge to the Select Committee's subpoena could subject Plaintiff to retaliation by the Select Committee or its members, whom [sic] have publicly threatened criminal referrals for recalcitrant witnesses." Yet, plaintiff provides no indication that such retaliation has occurred in the context of third-party subpoenas for phone records, which is the context here.

Plaintiff further asserts that public disclosure of his/her name could lead to being "criticized relentlessly." The risk of harassment and criticism plaintiff describes represents the quintessential "annoyance and criticism that may attend any litigation," and is far less severe than the degree of serious mental harm or physical danger necessary to override the strong public interest in transparent legal proceedings…. "[B]ringing litigation can subject a plaintiff to scrutiny and criticism and can affect the way plaintiff is viewed by coworkers and friends, but fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups do not permit a plaintiff to proceed under a pseudonym[.]" …

[4.] While the named defendant is Verizon, a non-governmental actor, the substance of this lawsuit is plainly to challenge the investigative scope and purposes of the Select Committee, and the law is well-settled that "there is a heightened public interest when an individual or entity files a suit against the government." …

From what I've seen, courts are more likely to allow pseudonymity in purely legal challenges, precisely because the party's identity is seen as largely irrelevant to those cases; but the presumption remains against pseudonymity even then (see The Law of Pseudonymous Litigation for more).

Thanks to Prof. Alan Rozenshtein for the pointer; Zoe Tillman (BuzzFeed) is our source for the news about the decision.