The Volokh Conspiracy
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Can California "Safe at Home" Law Be Used to Retroactively Pseudonymize Past Federal Cases?
The California "Safe at Home Confidential Address Program" provides for special forwarding addresses for people who swear that they are "attempting to escape from actual or threatened domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse," and need to "establish new names or addresses in order to prevent their assailants or probable assailants from finding them" (and possibly provide some corroborating evidence).
And Cal. Code Civ. Proc. § 367.3, enacted in 2019, adds to that:
A protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person.
Such litigants must confidentially inform the other parties and the court of their true identity, but the identity may not appear in the court records. No showing is required of any specific reason for pseudonymity, beyond the person's participation in the Safe at Home program.
Does this mean that a person, just by joining the Safe at Home program, may also retroactively reopen his past cases, and then get them sealed or pseudonymized? Several recent federal decisions, all apparently involving one litigant (a self-described "avid blogger on record sealing expungement, and First Amendment issues"), deal with the subject. Here's the latest judicial response, from Judge Kent Dawson's opinion Monday in Chaker-Delnero v. Butler & Hailey (D. Nev.), to that litigant, who had earlier had some (though mixed) success in his campaign:
The Court previously sealed documents in accordance with Federal Rule of Civil Procedure 5.2 [because they contained financial account numbers and information regarding his medical history -EV]. Defendant [likely an erroneous reference to Plaintiff -EV] then filed a motion nearly nine years later, seeking to seal the entire action and replace his name in the caption with "John Doe" in accordance with California Code of Civil Procedure § 367.3 and California Government Code § 6205 (which allows victims of certain crimes to keep their address confidential). Section 367.3(b)(1) allows people qualified under section 6205 to proceed using a pseudonym such as John Doe and redact identifying characteristics.
However, for several reasons, the Court denied Plaintiff's Motion to Seal. First, neither section of California code applied to this federal court. In this long-closed case which arose under original jurisdiction, the Court need not apply principles of comity as argued by Plaintiff. The cases he cited were distinguishable, because they involved on-going cases with mixed questions of state and federal law. Even when this case was active it only involved questions of federal law, no reference to California law was necessary.
The Court then applied the Ninth Circuit rules governing the use of fictitious names and found that Plaintiff had not met his burden in demonstrating the need to seal the action and use a fictitious name in the caption. The Court also cited several cases in which courts found that Plaintiff had misused the judicial process. See Chaker v. Nathan Enterprises, Corp., 2009 WL 10697759, *3, n.6 (C.D. Cal. April 21, 2009); Del Nero v. Midland Credit Management, Inc., CV 04-1040 (C.D. Cal. 2004) (Court found claim filed in bad faith and awarded attorney's fees); Chaker v. Richland, CV 05-7851 (C.D. Cal. 2005) (awarding attorney's fees for baseless lawsuit); Chaker v. Imperial Collection Services, CV 04-2728 (C.D. Cal. 2004) (finding claims without merit).
Then the Court denied a Supplemental Motion which essentially was a motion to reconsider its prior order on the motions seal. Now Plaintiff has filed what is at least the second motion to reconsider and additional notices of authority….
Plaintiff continues to provide the court with copious amounts of non-binding authority. However, all of Plaintiff's arguments have remained the same. Motions for reconsideration are not vehicles for parties to reiterate arguments that they have previously made. That is all Plaintiff has done here. To the extent that Defendant [again, likely means Plaintiff -EV] has raised new arguments or authority there is no reason that he could not have done so earlier, and they are waived.
Further, Plaintiff has used these proceedings to multiply the "danger" he alleges that he is threatened with. When he started filing these motions in 2021, there was no information on the docket from which a person could have derived personal information belonging to Plaintiff that could be used to locate him. Instead, Mr. Chaker has added personal information in his motions for no apparent reason. Further, he has updated his address with the Court knowing that the Court had denied his motions to seal and change the caption. Out of an abundance of caution, the Court has sealed these filing. However, Mr. Chaker cannot foment the need to seal filings in a public court of law. Contrary to his assertions, California state statute cannot override the public's common law right of access to federal judicial proceedings, the normal presumption in litigation being that parties use their real name…. "We are cognizant 'that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity" ….
Therefore, the Court denies Chaker's pending motions. Further, rather than be told no, Chaker has demonstrated that he will keep filing multiple motions to reconsider and seal, even after the Court has denied him relief. Accordingly, the Clerk of the Court is ordered to accept no more filings in this action from Mr. Chaker, except for a notice of appeal….
For more on frequent litigants trying to keep their litigation history secret or to retroactively make it secret, see pp. 1390-91 of my The Law of Pseudonymous Litigation.