The Volokh Conspiracy

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Free Speech

No Retroactive Sealing or Pseudonymization of Federal Case, Regardless of California "Safe At Home" Statute


I've been tracking with interest the attempts of a couple of frequent litigants to either keep their litigation history secret or to retroactively make it secret, whether through sealing or pseudonymization (see pp. 1390-91 for a brief passage from a law journal article on the subject). Here's the latest judicial response, from Judge William Hayes in McMillan v. Chaker (S.D. Cal.), to one of the litigants, who had earlier had some (though mixed) success in his campaign:

The matter before the Court is the Motion to Seal filed by Defendant Darren D. Chaker …. In his motion, Defendant requests that the Court "seal the entire record" or, alternatively, "replace [Defendant's] name with John Doe and redact all personal information in the record." Defendant contends that sealing is appropriate because he is "a crime victim who has received several threats on his life, resulting in his participation in the [California] Safe at Home program."

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." "Following the Supreme Court's lead, 'we start with a strong presumption in favor of access to court records.'" "A party seeking to seal a judicial record [ ] bears the burden of overcoming this strong presumption by meeting the 'compelling reasons' standard." "Under this stringent standard, a court may seal records only when it finds 'a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture.'" "The court must then 'conscientiously balance[] the competing interests of the public and the party who seeks to keep certain judicial records secret.'" …

Defendant's sealing request is based on his contention that allowing his personal information to remain in a public record could "lead to [Defendant] being harmed physically or emotionally." In support of this contention, Defendant states that he witnessed a violent crime and subsequently received threats to his personal safety. Defendant states that an unknown person subsequently attempted to enter his home. Defendant states that as a result, he is a current member of the California Safe at Home program.

The purpose of the California Safe at Home program is to offer participants a way to prevent potential assailants or abusers from locating them through public records. See Cal. Gov. Code § 6205. To qualify for the Safe at Home Program, a prospective participant must demonstrate that they have good reason to fear for their safety. Participants in the Safe at Home program can obtain a designated mailing address for use in public records, and confidential mail forwarding. Participants may also use a pseudonym and seek the redaction of personal identifying information in civil proceedings in California state courts. {While California's Code of Civil Procedure does not govern this action, the Court considers Defendant's participation in the Safe at Home program and the protections afforded to him under state law in determining whether compelling reasons exist that justify the sealing of records in this action.}

The compelling reasons standard applies to a request to seal an entire judicial record. A threat to a litigant's personal safety may justify a sealing request. However, in this case, the threat to Defendant's safety is not related to this action and can be effectively mitigated through more narrowly tailored redactions. Cf. U.S. v. Doe (9th Cir. 2017) (granting a request to seal records in a criminal case involving a cooperating defendant instead of applying redactions to sensitive information because the very presence of redactions would signal the defendant's cooperation, putting him at risk of retaliation). Defendant's request to seal the entire record is denied.

Defendant contends, in the alternative, that the replacement of his name with a pseudonym is appropriate because "disclosing [Defendant's] identity will, by definition, expose [his] location and thus subject [him] to a substantial risk of harm and harassment." Defendant contends that the case's caption "allows a third party to view where a lawsuit was filed, and thus by inference a part of [Defendant's] locale of residence," and that "[t]hose who would do harm to or harass [Defendant] need only show up at a hearing or at trial to locate [him] and then trail [him] back home."

"[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." While allowing a party to proceed anonymously may be appropriate when a party demonstrates that it faces a threat of retaliation, the threat faced by Defendant in this case is not related to his participation in this action. Further, the concern that the publication of a Safe at Home participant's name could allow a third party to locate that participant is not implicated in this case because this action has been fully adjudicated and was closed almost five years ago. Defendant has failed to demonstrate that the presence of Defendant's name in this action creates a risk of retaliatory harm. Defendant's request that his name be replaced with a pseudonym is denied.

Defendant requests that the Court redact other personal information in the record. The Court is unable to assess the propriety of this request because Defendant does not identify the specific information he seeks to redact or its location in the record….

As it happens, though Chaker is on the California vexatious litigants list, he had actually won a couple of interesting First Amendment (or First-Amendment-adjacent) cases before the Ninth Circuit, Chaker v. Crogan (9th Cir. 2005) and U.S. v. Chaker (9th Cir. 2016).

For more on the "Safe At Home" pseudonymization avenue, see here.