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Right of Access

No Pseudonymity for Plaintiff Suing Over Errors in Criminal History Report


From today's decision by Judge Joseph Goodwin (S.D. W. Va.) in Doe v. Evident ID Inc.:

Plaintiff brings suit pursuant to the Fair Credit Reporting Act (FCRA) against Defendants Evident ID Inc. and MRI Software LLC, two consumer reporting agencies (CRAs), alleging violations of the FCRA's requirement that CRAs "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." While Plaintiff has no outstanding convictions on his record, in early 2022 Defendants provided Plaintiff's prospective employers with background reports that inaccurately showed that Plaintiff was convicted of felonies. In fact, although Plaintiff was charged with felonies in the past, those charges were dismissed in 2019. According to Plaintiff, he has never been adjudicated guilty of any felonies, and the background reports reflect additional inaccurate charges. Plaintiff states that Defendants' inaccurate background reports directly caused him to lose multiple employment opportunities.

Plaintiff sued under the pseudonym "John Doe" to avoid risking further harm to his employment prospects. He argues that while his criminal charges will eventually be removed from his report per the FCRA, to remedy the current inaccuracies and protect his rights, he "must commence [this] lawsuit that has the effect of etching his criminal charges into the public record." Revealing his identity in this lawsuit, he argues, would expose him to social stigma and a significant impairment of his employment possibilities. He seeks an order protecting his anonymity, or in the alternative, a protective order which would require any reference to his true identity or identifying information to be filed under seal.

The Federal Rules of Civil Procedure require that the identities of the parties to a case be disclosed. See Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties …."). When a party seeks to litigate under a pseudonym, the court "has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party's stated interest in anonymity against the public's interest in openness and any prejudice that anonymity would pose to the opposing party." … [A]llowing a party to proceed using a pseudonym is a "rare dispensation" because pseudonymous litigation undermines the openness of judicial proceedings and the public's right of access to proceedings.

I do not find that there are extraordinary circumstances here that justify allowing the Plaintiff to proceed pseudonymously.

First, while the Supreme Court has acknowledged that people have a legitimate privacy interest in limiting the disclosure of criminal "rap sheets," it has also noted that there is a "vast difference" between public records that may be found in a courthouse as a result of a lawsuit and summarized criminal "rap sheets" provided by the government. U.S. Dep't of Just. v. Reps. Comm. For Freedom of Press (1989). In this case, Plaintiff's criminal history is not a matter that is of a sensitive and highly personal nature— rather, Plaintiff's criminal history is a matter of public record that is still readily accessible by private entities, even if that access will eventually be subject to statutory limitations. Moreover, the information tied to Plaintiff's name in this lawsuit would only be obtainable after a search of courthouse files, rendering the privacy interest implicated by disclosure of such information minimal.

Second, Plaintiff explains that his goal in keeping his identity private in this matter is "to protect himself from further economic and reputational harm," not to avoid "risk of retaliatory physical or mental harm." While I acknowledge the possibility that some future potential employers may deny Plaintiff employment as a result of searching docket entries for his name, I note that the only employers implicated by that notion are those that do not require professional background checks as a condition of employment yet have the ability and desire to search through public records. As employers that perform background checks would gain access to the factual information in question regardless of whether Plaintiff proceeds under his actual name, and because economic harm must be "extraordinary" to merit anonymity, I find Plaintiff's need for anonymity as a result of possible economic harm to be small….

My view: I appreciate the plaintiff's desire to be pseudonymous, since suing under his own name would further publicize the dismissed felony charges. But a vast range of litigants would have a similar concern, e.g.,

  • libel plaintiffs who are afraid that identifying themselves will further publicize the libels;
  • people suing over allegedly unconstitutional arrests or searches who are afraid that identifying themselves will connect them to behavior that potential employers and others might see as unsavory;
  • ex-employees suing over allegedly wrongful discharge who are afraid that the ex-employers will argue (however wrongly in the plaintiff's view) that the employee was really fired for malpractice or sexual harassment or other misconduct; and
  • a vast range of defendants (civil or criminal) who are accused of malpractice, embezzlement, sexual harassment, sexual assault, and so on, and who are afraid that being named will connect them to the accusations even if they eventually (some day) prevail.

There's nothing particularly special about this plaintiff; if he should prevail, then I think all the other litigants I mention above (and many others), would need to be pseudonymous, too, which would sharply change the way our legal system operates.

To be sure, some might argue that the legal system should indeed be changed this way—I'm told, for instance, that the German and Austrian legal systems operate largely with pseudonyms. Here's my sense of why that's likely mistaken, borrowed from my new draft article, The Law of Pseudonymous Litigation (which I also posted about several months ago; see the draft for much more, including footnotes, though the material below is from a slightly revised version of the draft):

Public naming of litigants is one aspect of the broader "presumption, long supported by courts, that the public has a common-law right of access to judicial records." "Public access to civil trials … provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system." In particular, the right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch." "'Public confidence [in the judiciary] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.'"

This right of access extends to "pretrial court records" as much as to trial proceedings. And the right presumptively forbids redactions as well as outright sealing, though redactions can be justified on a somewhat lesser showing than sealing since they are sometimes viewed as the least restrictive means of protecting important privacy rights.

In principle, pseudonymity is less of a burden on public access than is sealing, or even redaction:

The public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Party anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them. The assurance of fairness preserved by public presence at a trial is not lost when one party's cause is pursued under a fictitious name.

Indeed, pseudonymity is sometimes offered as a less public-access-restrictive alternative to outright sealing.

Nonetheless, even courts that take this view acknowledge that "there remains a clear and strong First Amendment interest" in "[p]ublic access" to the parties' names. Other courts put it even more strongly:

[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. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case.

"[T]he public[]" has a "legitimate interest in knowing all of the facts involved, including the identities of the parties." "The people have a right to know who is using their courts." "[A]nonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." "The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court."

Those, at least, are the generalities. Let's now turn to how pseudonymity may be concretely harmful, and how open disclosure of party names may be valuable.

To begin with, the names of the parties are often key to investigating the case further—for instance, by helping reporters and researchers answer questions such as:

  • Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases,[1] or a vexatious litigant?
  • Is there evidence that the litigant is untrustworthy, perhaps in past cases or in past news reports?[2]
  • Do past cases brought by the same litigant reveal similar allegations made by the litigant, which past authorities have concluded were not corroborated?[3]
  • Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
  • Was the incident that led to the lawsuit covered or investigated in some other context? For instance, if the plaintiff is suing for libel or wrongful firing or wrongful expulsion based on accusations that plaintiff had committed a crime, had the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out?
  • Is there online chatter from possibly knowledgeable people about the underlying incident?
  • Is there some reason to think the judge might be biased in favor of or against the litigant?

Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around. The parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified.[4]

And litigation of course deploys the coercive power of the state, even as it also accomplishes private goals. For instance, a libel lawsuit, even between two private parties, is aimed at penalizing (and sometimes enjoining) supposedly constitutionally unprotected speech. An employment lawsuit is aimed at implementing a set of legal rules that constrain employers, protect employees, and affect the interests of the public in various ways, direct or indirect. In the words of Justice Holmes, writing about the fair report privilege:

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Courts have recognized that this rationale applies also to the openness of court records, including to the presumption against pseudonymity. And evaluating the credibility of the parties, whether as to their in-court statements or as to their court filings, will often require knowing their identities….

[1]. Even once the defendant learns the plaintiff's name in this case, the defendant might be unable to easily find plaintiff's past pseudonymous filings; and journalists might never learn the pseudonymous plaintiff's name. In principle, a court could use "a unique pseudonym" for a serial litigant, to make clear to the public that several cases are being filed by the same person. See In re Sealed Case, 931 F.3d 92, 98 (D.C. Cir. 2019). But that still wouldn't inform researchers of the litigants' possible outside motivations that might not appear on the face of the court filings, and it wouldn't help researchers connect this litigation to other cases filed by the plaintiff in other courts.

[2]. Thus, for instance, a plaintiff in a recent federal case had apparently been found, in an earlier state case, to have "perpetrated acts of domestic violence" and to have been "evasive" in her statements. See Motion for Reconsideration, Doe v. Wang, No. 1:20-cv-02765 (D. Colo. Aug. 27, 2021), ECF No. 96 (noting, in redacted form but with enough details to allow the case to be identified, Czodor v. Luo, No. G056955, 2019 WL 4071771, at *1 (Cal. Ct. App. Aug. 29, 2019)); see also People v. Luo, No. 30-2021-01216615 (Cal. Super. Ct. App. Div. Orange Cty. Apr. 27, 2022) (discussing what appear to be the same plaintiff's convictions for vandalism, restraining order violation, and revenge porn, stemming from a sexual relationship hone bad).

[3]. For instance, in Luo v. Wang, No. 1:20-cv-02765 (D. Colo. Nov. 7, 2021) (originally filed as Doe v. Wang), Luo is suing Wang for libel, based on defendant's allegations that Luo had falsely accused a mutual acquaintance of rape. It appears that Luo had made similar accusations against other people, which the police had not acted on—something that would be relevant to a reporter writing about the case, though of course it wouldn't be dispositive of the soundness of Luo's current claims. See Doe v. Newsom, No. 2:20-cv-04525, at *2 (C.D. Cal. Mar. 26, 2021) (noting two such similar accusations); Reply to Opposition to Plaintiff's Request to Proceed Under a Pseudonym at 3, Doe v. City of Concord, No. 3:20-cv-02432 (N.D. Cal. Sept. 10, 2020), ECF No. 30 (Doe plaintiff stating that O.L. v. City of El Monte, Doe v. Newsom, Doe v. Cnty. of Orange, and Doe v. Weamer were all brought by plaintiff); Declaration in Support of Response to Motion for Sanctions, Luo v. Wang, No 1:20-cv-02765 (D. Colo. Dec. 9, 2021), ECF No. 137 (Luo stating that Doe v. Weamer was brought by Luo). With some effort, I was able to see that Luo had brought the past Doe cases; but this stemmed partly from defendant Wang's extensive investigation, coupled with incomplete covering of tracks by Luo, who had been pro se in many of the cases. In other cases, a reporter trying to figure out the plaintiff's history in Doe v. Wang might have been stymied by the pseudonymity both of that case and of past cases.

[4]. To quote a media brief opposing pseudonymity in a challenge to a vaccination mandate,

Anonymity greatly hinders, for example, a journalist's ability to research the litigant's background, including business or political interests. Anonymity also prohibits journalists from identifying family members, friends, employers, coworkers, classmates and other acquaintances who may help the journalist put a given dispute in context. Knowing a litigant's identity may help illuminate details like a plaintiff's motivation for suing; his or her relationship with the defendants, other trial participants, or the court; or the litigant's credibility, among other things.

Motion to Unseal Plaintiffs' Identities, Does 1–6 v. Mills, No. 1:21-cv-00242-JDL, at *3 (D. Me. Jan. 27, 2022), ECF No. 105.