No Pseudonymity in Disability Discrimination Lawsuit Over State Bar Character & Fitness Inquiry

"[H]arm to one's reputation or injury to one's standing in the community does not warrant a deviation from the strong presumption of public access[.]"

From Doe v. Tenn. Bd. of Law Examiners, decided Monday by Magistrate Judge Jill McCook (E.D. Tenn.) (to learn more about the case itself, see the Complaint):

Parties desiring to proceed using a pseudonym have a "heavy burden." … Plaintiff's privacy interests do not outweigh the presumption of open judicial proceedings in this case… Plaintiff asserts that the litigation reveals information of the utmost intimacy, including his mental and physical health in confidential records, accusations against his character, and his acrimonious divorce.

Plaintiff seeks to protect his name from public disclosure for fear of embarrassment and harm to his reputation in the community…. [B]ut "Plaintiff has not advanced any facts or circumstances that distinguish [this] case from routine discrimination cases alleging the same or similar medical conditions that plaintiff claims, nor has [Plaintiff] indicated why the confidentiality of [Plaintiff's] medical information cannot be maintained through a standard protective order." Plaintiff also states that this lawsuit reveals accusations regarding his character and his acrimonious divorce, but he likewise fails to explain how these subjects involve information of the utmost privacy that cannot be protected through a protective order.

Several courts have explained that information of the utmost privacy concern "matters of a sensitive and highly personal nature, such as birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families." The subjects Plaintiff sets forth in his motion do not fall within any of those identified categories.

Indeed, a plaintiff's character may be litigated in the context of a civil lawsuit, and divorces are often matters of public record. See, e.g., Am. Addiction Centers, Inc. v. Nat'l Ass'n of Addiction Treatment Providers (M.D. Tenn. 2021) ("The basis for a claim of defamation is that the defamation has resulted in an injury to the person's character and reputation."); In re Estate of Thompson (Tenn. Ct. App. 2021) (expressing the concern that, if the court allowed certain records to remain under seal, "few divorces would ever be public in Tennessee"). Plaintiff fears embarrassment and harm to his reputation in the community and fears harm and retaliation in relation to obtaining his law license in Tennessee if he were not allowed to proceed using a pseudonym. While understandably asserted, the Court finds that generalized and unspecific fears are not sufficient to establish his heavy burden. … "[H]arm to one's reputation or injury to one's standing in the community does not warrant a deviation from the strong presumption of public access" ….

Plaintiff relies on two cases to support his request to proceed anonymously: Doe v. Louisiana State University (M.D. La. 2020), and Doe v. Colgate University (N.D.N.Y. 2016). These cases, however, are inapposite. Louisiana State University involved a university's decision to discipline the plaintiff following an investigation of sexual misconduct. The court allowed the plaintiff to proceed using a pseudonym because the plaintiff challenged a governmental authority, the suit involved disclosure of intimate details between the plaintiff and another student, the complaint arose from an allegation that the plaintiff committed a serious offense, and there was no prejudice to defendants because they knew the plaintiff's and the other student's identity. The court also found that such cases had been "a target for increased media attention" and that "courts repeatedly allowed plaintiffs to proceed under a pseudonym."

Similarly, Doe v. Colgate University involved a university's decision to suspend plaintiff following an investigation of sexual misconduct. The plaintiff requested to proceed using a pseudonym "given the highly sensitive and personal nature of the litigation and the fact that revealing his identity makes him vulnerable to retaliation." After balancing numerous factors, the court concluded "that particularly in the context of investigating allegations of sexual assault on college campuses, it is imperative that the rights of all parties involved be thoroughly protected in order to properly adjudicate these claims."

Plaintiff points the Court to no case that involves circumstances similar to those presented here, and the Court notes that such cases seem to proceed in the plaintiff's name, not under a pseudonym. See, e.g., Campbell v. Greisberger (2nd Cir. 1996) (involving allegations that the plaintiff, an applicant for bar admission, was discriminated against based upon disability), abrogated by Green v. Mattingly (2nd Cir. 2009); Edwards v. Ill. Bd. of Admissions to Bar (7th Cir. 2001) (same). Accordingly, after considering the above factors, the Court finds that Plaintiff has not met his burden in establishing that his privacy interests substantially outweigh the presumption of open records.

For more on pseudonymity in litigation, see here.

Comments

[DaivdBehar]

Isn't public embarassment over? Isn't every degenerate feature now the basis of affirmative action, and an advantage for diversity scoring?

[DaivdBehar]

The only legitimate reason for pseudonymity that remains, to avoid retaliation is being a Christian.

[Krayt]

"Lawyer X participated in an incessant drumbeat to exaggerate psychological damage, pointing out the more damage, the more money, the more money, the the bigger the one third. When the client was told they could get six figures from it, and was asked how bad is it, they replied, "Real badlike!"

"That doesn't count as an ethical lapse."

[Krayt]

@sarcasm mark. Also Lawyer X means lawyers in general, not a pseudo anonym in this or any other case.

[apedad]

"These cases, however, are inapposite."

inapposite

adjective
out of place; inappropriate.
"the Shakespearean allusions are inapposite"

[ReaderY]

Does Dobbs have any effect on the status of abortion as a matter of “utmost privacy” for pseudonymity purposes?

[neurodoc]

Doe represented to his disability insurance carrier that he was physically and cognitively unable to engage in gainful employment on account of multiple sclerosis. On the basis of that representation in connection with an application for benefits, which Doe later abandoned, two attorneys called upon to assess Doe's fitness according to the Bar's general (vague) standards in the face of his neurologic condition, advised that Does was unfit, and thus Doe was denied admission to the Bar. (Testimony by Doe's ex-wife as taken in to account but we don't know what she had to say, except that it was not helpful to Doe.

In my considered opinion as a board-certified neurologist and practicing attorney (plaintiff's med mal), with no knowledge of any relevant facts other than presented here, Doe was treated most unfairly. Indeed, he was SCREWED big time.

Does EV think Doe got a fair shake? (I'm not expressing a legal opinion about the pseudonymity issue, though given how Doe was denied true due process (was he allowed to present experts and challenge the attorneys' medical determination in his case?), I think he should be granted his request for pseudonymity and a de novo review of his Bar application.