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Concern About Reputational Injury Can't Justify Pseudonymity in Litigation


From Doe v. Mid-American Apartment Communities, Inc., decided Wednesday by Magistrate Judge Christopher Ray (S.D. Ga.):

The Court's prior Order explained that "[a]nonymous pleading is the exception to Federal Rule of Civil Procedure 10(a), which requires every party to be named in the complaint." It also explained that "[t]he ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings."

Doe's Motion to Proceed Anonymously states that he should be permitted to pursue this case anonymously because his "defamation of character lawsuit warrants anonymous filing." He contends, without any citation to legal authority, that "[c]ourts in the Eleventh Circuit and elsewhere have routinely recognized defamation of character lawsuit as one of the rare situations justifying anonymous suits." He also alleges, in wholly conclusory fashion, that anonymous proceeding is justified by the possible application of an arbitration clause, apparently in his lease. Finally, he expresses concern that pursuing this case in his own name "may incite [d]iscrimination[, and] … expose [him] to [d]iscrimination, [r]etaliation, [f]urther risk of illegal entry, [p]rivate [p]roperty, personal health, and life dangers."

Doe's Motion does not establish a sufficient basis for him to proceed anonymously. First, while the Court is aware of defamation plaintiffs who were permitted to proceed anonymously, see, e.g., Roe v. Doe (N.D. Ga. 2019)[note that the court in that case didn't expressly decide whether the plaintiff could proceed pseudonymously, because apparently no-one challenged the attempt to so proceed -EV], Doe provides no support for his assertion that such permission is "routinely" granted, much less granted upon the wholly conclusory showing that Doe proffers here. For example, the United States Court of Appeals for the Sixth Circuit upheld the denial of leave to proceed anonymously in a case implicating possession of marijuana. See D.E. v. Doe (6th Cir. 2016). Although not a defamation action, the implication that the plaintiff possessed an illegal substance "did not require [the] plaintiff to disclose information 'of the utmost intimacy' …." The Court is simply not convinced that allegations concerning an unidentified "illegal substance" implicates information of "the utmost intimacy." …

Doe's final request, to "file all documents under seal" is, like his Motion to Proceed Anonymously, insufficient…. "[T]he operations of the courts and the judicial conduct of judges are matters of utmost public concern and the common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process." "The common-law right of access includes the right to inspect and copy public records and documents." …

A party seeking to have judicial records sealed can overcome the common-law right of access by a showing of good cause. A good cause determination "requires balancing the asserted right of access against the other party's interest in keeping the information confidential." In weighing these competing interests, the Court considers "a number of important questions," which the Eleventh Circuit discussed in Callahan:

[W]hether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.

The decision of whether good cause exists rests with the sound discretion of the court, is based on the "nature and character of the information in question," and "should be informed by a sensitive appreciation of the circumstances that led to the production of the particular document in question." … If Doe wishes to seek leave to file any future documents under seal, he must comply with the Court's Local Rules and present sufficient justification for sealing, as discussed above….