The Volokh Conspiracy

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

Free Speech

Pseudonymity for Defendant Accused of "Professional Wrongdoing," If Case Is Promptly Settled


In IPSOS MMA, Inc. v. Doe (decided Jan. 25 but just posted on Westlaw), the plaintiff, a marketing analytics company, sued an ex-employee for alleged trade secret infringement; the case settled within three months of filing, and Judge Paul Engelmayer (S.D.N.Y.) allowed it to be litigated pseudonymously:

On November 18, 2021, at a preliminary stage of the case, the Court permitted the defendant to proceed pseudonymously…. [T]he Court finds that pseudonymous identification of the defendant remains warranted, with the case having settled promptly, including for the following reasons.

First, although claims of professional wrongdoing were made against Doe, they were not established, and because the case settled, prior to formal discovery, will not be.

Second, as the Court earlier noted, Doe is not a public figure, and because there will be no motions practice or other litigation, the public interest is not independently served by the disclosure of his identity. Cf. Delta Airlines, 310 F.R.D. at 225 (where lawsuit was proceeding to trial, "Delta could suffer concrete prejudice in several respects were Doe permitted to proceed pseudonymously"); Del Rio, 241 F.R.D. at 159 (noting that party's anonymity could "deprive a litigant and the court of the chance that a yet unknown witness would … know to step forward with valuable information about the events or the credibility of witnesses").

Third, the defendant did not initiate this matter or seek to use the litigation process for personal advantage.

Fourth, Ipsos continues not to oppose this motion on any grounds, including that it may be prejudiced by Doe's pseudonymity.

And fifth, thus far, Doe's identity has successfully been kept confidential. Accordingly, Doe may continue to proceed based on a pseudonym, and the appropriate redactions of his identifying information will remain in place. This case remains closed.

It seems to me that this analysis would justify allowing pretty much all defendants who are accused of serious misconduct, whether intentional or negligent—malpractice, sexual assault, employment discrimination, many kinds of breach of contract—to litigate pseudonymously, at least until there is some "motions practice or other litigation." That is not the way most courts operate, it seems to me (see, e.g., Appendix 7 of my The Law of Pseudonymous Litigation draft, and cf. this case). Still, one thing I learned in writing that article is that the legal standards for pseudonymity are phrased quite vaguely, and that much depends on the views of the particular judge you draw.

By the way, you might wonder how a defendant got to be pseudonymous in the first place, given that the plaintiff files the Complaint and usually names the defendant. As best I can tell, what happened is that the plaintiff filed the Complaint under seal, because it wanted to get an ex parte TRO without alerting the defendant that such an order was coming. The judge later ordered the Complaint unsealed (since permanent sealing of such documents is much frowned on), but with the defendant's name redacted out.