No Pseudonymity for Employment Plaintiffs Alleging Rape and Other Sexual Harassment, Says Fed. Court in N.Y.

Special twist: The case "involve[s] allegations against a CEO who was one of the jurors in the Harvey Weinstein trial," and who had (according to news accounts) claimed he "singlehandedly delivered" the Weinstein guilty verdict.

From Judge Lewis Liman's decision Wednesday in Doe v. Branca USA, Inc. (S.D.N.Y.); cases throughout the country are split sharply on this question, see Apps. 2a & 2b of my The Law of Pseudonymous Litigation:

Plaintiffs allege that they were sexually abused by the Chief Executive Officer of Branca USA. The complaint alleges that Jane Doe 1 was drugged and raped, and that Jane Doe 2 was sexually assaulted on numerous occasions. It further alleges that both women were groped and harassed, and that when they complained, they suffered retaliation….

Plaintiffs argue that they should be permitted to proceed pseudonymously. They note that the complaint contains detailed allegations of rape and sexual assault and argue that they will suffer significant psychological harm if they are forced to reveal their identities to the public. They also assert that the defendants will suffer no prejudice if Jane Doe 1 and Jane Doe 2 are permitted to pursue their claims anonymously, as counsel has identified their names to counsel for defendants. Finally, they assert that they have sought mental health treatment and would experience significant harm if forced to reveal their identities to the public.

Federal Rule of Civil Procedure 10(a) requires that the title of a complaint name all the parties to a litigation; this requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." "[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." "The people have a right to know who is using their courts." …

The courts in this District have considered in several cases whether to permit a plaintiff who alleges that she or he has been raped or been the subject of sexual assault to proceed pseudonymously…. [T]he results across the board come down to this: A claim by an adult plaintiff to have been the victim of sexual abuse and to have suffered physical or psychological damage as a result, accompanied by sufficient facts to support that claim, is not enough to entitle a plaintiff to proceed anonymously.

Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously. It is a rare case where a plaintiff who has been sexually assaulted or raped has not suffered some physical or psychological injury. The rule is the same for a plaintiff as for a defendant who is accused and who might want to keep his or her identity confidential. Courts have put weight on the right of the public to know the identity of the litigants as well as on the interest of the accused to be able publicly to confront the accuser. Thus, something more is required to rebut the presumption of public access, at least in cases involving adult sexual assault, and that something more frequently has to be evidence of real (and not conclusory) harm that is substantial and that will flow directly from and is directly linked to disclosure of the party's name.

In Rapp v. Fowler (S.D.N.Y. 2021), the court denied the application to proceed pseudonymously of one of two plaintiffs who alleged that he had been the victim of a sexual assault by the actor Kevin Spacey thirty-five years earlier when he was a teenager. The court recognized that "[a]llegations of sexual assault are 'paradigmatic example[s]' of highly sensitive and personal claims and thus favor a plaintiff's use of a pseudonym" and stated that "allegations of sexual abuse of minors typically weigh significantly in favor of a plaintiff's interest [in anonymity]." It nonetheless held that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." … While recognizing that "[s]exual assault can have lasting, damaging consequences on a person's emotional or mental health," the court stated the relevant question was whether disclosure of the plaintiff's name in the course of the lawsuit would "uniquely" cause harm and "how grave the resultant harm would prove to be" and concluded that the plaintiff's prior actions "undercut his position on the rather unusual facts of this case." In that case, the plaintiff had spoken to an unknown number of people about his "relationship" with Spacey without obtaining assurances that they would keep the information confidential.  The court further noted that declarations submitted on behalf of the plaintiff by a licensed clinical social worker and by a forensic psychiatrist did not give any "sense of the severity" of the harm caused by public disclosure, and that the fact that the plaintiff was an adult when he filed the complaint—although not at the time of the alleged sexual abuse—weighed against anonymity.  The court concluded that defendant had shown that he would be prejudiced if the plaintiff were permitted to proceed under a pseudonym; persons with information about the plaintiff or his allegations that would be helpful to the defense but were unknown to the defendant might not come forward, the defendant had suffered significant reputational damage that would be harder to mitigate if the plaintiff were permitted to remain anonymous, and fairness suggested that the plaintiff who was seeking substantial damages stand behind his charges publicly. …

[T]he public's interest in knowing the plaintiff's identity[] also weighed against anonymity. The plaintiff was bringing claims against a private party, the allegations were decidedly factual in nature, and the public had an interest in the plaintiff's identity especially because allegations were made against a public figure.  While "the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."  Finally, the court held that less drastic remedies such as a protective order could protect particularly sensitive information.

In Doe v. Leonelli (S.D.N.Y. 2022), the court considered the request of a married Roman-Catholic couple suing their former priest and parish community for sexual abuse that the wife suffered at the hands of the priest when she was a parishioner that they be able to proceed anonymously. The court denied the request. It reiterated that "an allegation of sexual assault alone is 'not sufficient to entitle a plaintiff to proceed under a pseudonym.'" The claim that the plaintiffs feared retaliatory physical or mental harm was undercut by the fact that the plaintiffs had reported the abuse to the Catholic authorities without obtaining any promises of confidentiality for those communications and by the absence of any "direct evidence linking disclosure of [plaintiffs'] name to a specific physical or mental injury." No other potential harms were alleged, and the plaintiffs were adults who were suing for abuse that did not occur when the wife was a child. The court similarly concluded that the plaintiffs' privacy interests as a sexual assault survivor did not outweigh "the public's significant interest in open judicial proceedings" that the defendants would be prejudiced by the plaintiff proceeding anonymously, and that alternative mechanisms existed to protect anonymity.

In Doe v. Freydin (S.D.N.Y. 2021), the plaintiff sued her former employer for sexual assault and sexual harassment. While … the plaintiff had kept her identity confidential, … [t]he plaintiff did not "establish with sufficient specificity the incremental injury that would result from disclosure of her identity," in the face of evidence that the defendants already knew who she was, [and] the plaintiff had gratuitously exposed identifying information about non-parties, such as the defendants' ten-year-old son, in the complaint "inflict[ing] upon others the precise harm she now seeks to avoid." Additionally, the defendants would suffer prejudice from the difficulties in conducting discovery and the reputational challenge of defending such allegations publicly while a plaintiff was permitted to proceed anonymously, and there were alternate means of protecting the plaintiff's privacy interests. The Court went so far as to state that "[w]hen the allegations involve workplace harassment, courts more commonly find that the public interest counsels against anonymity."

Doe v. Skyline Automobiles Inc. (S.D.N.Y. 2019) involved claims similar to those asserted here. The plaintiff brought claims of sexual harassment, sexual abuse, and discrimination after she was drugged and brutally raped while unconscious by a coworker, who thereafter forced her to endure sexual harassment by way of vulgar propositions and offensive comments.  The plaintiff then was fired in retaliation for her complaints about sexual as well as racial discrimination. The court credited that the plaintiff's allegations were "highly sensitive and of an extremely personal nature," but it denied the plaintiff's request that she proceed pseudonymously because her allegations of physical or mental harms were speculative and conclusory, she provided no evidence that her age made her particularly vulnerable to the harms of disclosure, the defendant had a substantial interest in maintaining its good name and reputation—particularly in light of the allegations in the plaintiff's complaint, defendants would be prejudiced in the litigation, the case was factual in nature, and the public interest in sexual assault and discrimination was very high. The court also noted there were alternative means for protecting confidentiality. See also Doe v. Gong Xi Fa Cai, Inc. (S.D.N.Y. 2019) (denying request to proceed anonymously of plaintiff who was victim of unwanted sexually motivated physical contact from her employer and whose identity was not public knowledge); Doe v.

Townes (S.D.N.Y. 2020) (denying motion for anonymity where plaintiff alleged her employer sexually assaulted her); Doe v. Weinstein (S.D.N.Y. 2020) (denying motion to proceed anonymously where plaintiff alleged sexual assault). But see Doe v. Gooding (S.D.N.Y. 2022) (permitting plaintiff to proceed anonymously during pretrial stages).

By contrast, in Doe v. Smith (E.D.N.Y. 1999), upon which Plaintiffs here rely, the court reconsidered its original order denying anonymity only after it was presented with "specific evidence [from a medical expert] predicting that revelation of [plaintiff's] identity w[ould] likely cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life" and where "plaintiff's doctor ha[d] predicted that she w[ould] be unable to pursue this action should she not be permitted to proceed anonymously."

Following that case law …, Plaintiffs here have not satisfied their burden to rebut the presumption that they must identify themselves by name and to show that this is the exceptional case where they can proceed by pseudonym…. The complaint [does] involve[] allegations of the most intimate, sensitive, and personal nature. On the other hand, the allegation of harms … "consist exclusively of conclusory statements and speculation." Plaintiffs have not established with any specificity "the incremental injury that would result from disclosure of [their] identities," or provided "direct evidence linking disclosure of [their] name[s] to a specific physical or mental injury." Plaintiffs are adults and were adults at the time of the alleged violations; the fourth factor disfavors their application. And … the action is challenging the actions of private parties ….

Although "courts have found that defending against such allegations publicly, while a plaintiff is permitted to make her 'accusations from behind a cloak of anonymity,' is prejudicial," Defendants have not opposed the motion to proceed anonymously, and accordingly, the Court cannot conclude that they will be prejudiced…. On the other hand, … Plaintiffs assert that … they [have] disclose[d] their allegations to others including the Vice President of Human Resources and the CEO's Executive Assistant and that "[m]ultiple supervisors knew or should have known that the CEO was sexually harassing Doe 1 and/or Doe 2."

Any of those persons could identify for the public that the names of Doe 1 and Doe 2.

Plaintiffs' complaints are leveled against a family-owned Italian producer of spirits, its United States subsidiary, and the "scion" of the company's "Italian patriarch," and they involve allegations against a CEO who was one of the jurors in the Harvey Weinstein trial, all of which are relevant to … the public interest in the litigation. Finally, the case is not of a purely legal nature and mechanisms exist, including protective orders, to protect against disclosure of that information of the most personal and intimate nature.

For these reasons—including the fact that Plaintiffs have presented no evidence of specific and concrete harm, such as in the form of opinions from mental health professionals …, that would result from the disclosure of their identities—Plaintiffs have not demonstrated that their case is the exceptional one which should be allowed to proceed pseudonymously.