Court Unseals and Depseudonymizes Student's Settled First Amendment Lawsuit Against University

An illustration that courts are often willing to reconsider stipulated sealing and pseudonymization decisions when members of the public or media object.

From Doe v. Amar, decided yesterday by Judge Sue Myerscough (C.D. Ill.), in response to my motion to unseal and depseudonymize; this is the case I blogged about in April:

[T]his case arises out of Mr. Doe's tenure as a student at the University of Illinois College of Law. On November 18, 2022, Mr. Doe filed this suit pursuant to 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint alleged that Defendants—all officials, employees, and trustees of the University of Illinois—violated Mr. Doe's First, Fifth, and Fourteenth Amendment rights. According to Mr. Doe, Defendants did so by compelling him to meet with the University's Behavioral Intervention Team (BIT), retaliating against him for exercising his right of free speech, and subjecting him to an unconstitutionally vague code of conduct….

On December 5, this Court denied Mr. Doe's motion for a preliminary injunction in a written order. Noting that "the possibility of a sanction is not the same as its guarantee," the Court found that Mr. Doe's allegations of irreparable harm were too speculative to justify preliminary injunctive relief. Mr. Doe then moved for reconsideration of several of the Court's orders, including the Court's decision to deny Mr. Doe the ability to litigate under a pseudonym. The Court denied that motion, too. The Court found that "none of the reasons for sealing the record or proceeding pseudonymously were present in this case," and that in any event Mr. Doe "had waived the request to keep [his identity] sealed because he … referred to himself" in his pleadings and exhibits.

On December 7, Mr. Doe filed a notice of interlocutory appeal as to the Court's order on his motion for injunctive relief. While that appeal was pending, the Illinois Supreme Court imposed a one-year suspension on Mr. Doe's attorney, Justin K. Schwartz, for neglecting client matters and keeping unearned fees. Mr. Doe then retained new counsel. In March 2023, the parties "engaged in mediation … [and] reached a settlement agreement and mutual release of claims."

On April 19, the parties jointly moved to "seal the Court record for this matter in its entirety and replace Plaintiff's name with 'John Doe.'" In the alternative, the parties asked that the Court "reconsider its denial of Plaintiff's Motion to Proceed Under Pseudonym, permitting pseudonym treatment for 'John Doe,' and allowing Plaintiff to file redacted exhibits." The Court granted the former request in a text order dated April 28, 2023. As a result, the docket is now wholly sealed, and the caption renders Plaintiff's name as "John Doe."

On May 2, the parties made a similar request of the Seventh Circuit. The Seventh Circuit denied their motion the next day.

That court's two-sentence order read as follows: "Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals. The Supreme Court held in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), that settlement does not justify vacatur."

The court concluded that I had standing to intervene, to vindicate my "right of access as a member of both 'the press and the general public.'" And it reconsidered its earlier grant of pseudonymity and decision to seal, though it allowed redactions from several exhibits:

Nearly every extant authority cautions against pseudonymous litigation. "Lawsuits are public events," and "[t]he risk that a [party] may suffer some embarrassment is not enough" to justify anonymity. And the public "has a right to know who is utilizing the federal courts that its tax dollars support." "The use of fictitious names" in federal litigation accordingly "is disfavored." Therefore, this Court "has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." A party seeking to proceed anonymously must show, against the backdrop of "exceptional circumstances," that any harm done by disclosing his identity "exceeds the likely harm from concealment." …

The parties contend that rescinding Mr. Doe's pseudonymous status would be unwarranted. They argued before that their settlement "constitutes new information which was not available" in November, when Mr. Doe first moved to litigate as "John Doe." The parties further argued (1) that Mr. Doe "faces immense reputational damage and irreparable harm to his future legal career if this Court denies [him] pseudonym status"; (2) that Mr. Doe was prejudiced by his prior counsel's "improper legal advice" and decision to file certain exhibits without redaction; and (3) that Mr. Doe "likely would have discontinued his lawsuit once he was denied pseudonym status" but never was offered a chance to do so.

These considerations, while certainly cause for the parties' concern, do not overcome the strong presumption against pseudonymity. Embarrassment is "not a compelling basis for a waiver of the general rule that parties to federal litigation must litigate under their real names." The Court notes as well that Mr. Doe's identity as the plaintiff here has been a matter of public record for some time. So even if retroactive pseudonymity were warranted—and even if the Seventh Circuit had not rejected the very concept—the parties' request would be futile. Professor Volokh's motion to depseudonymize is granted….

The cat is out of the bag on Plaintiff's identity. But whether to seal all or part of the record is a closer call. The parties previously contended that there are "sufficient grounds to seal the entire record in this case." They argued that "this case has been litigated to the fullest extent in the public domain." They also argued that "Plaintiff's privacy interests in this case"—implicated by "allegations of mental health, paranoia, and [threats to] school safety"—trumped "the presumption that judicial records be open to the public." "Given that Plaintiff disputes" the accusations of misconduct underlying this case, the parties contended "there can be no public interest" in unencumbered access to the record.

"The parties to a lawsuit are not the only people who have a legitimate interest in the record compiled in a legal proceeding." Accordingly, those records "that affect the disposition of federal litigation are presumptively open to public view." …

Upon further consideration, the parties have not shown good cause to seal the entire record. Previously, the parties' "lead reason" was "the parties' agreement." "Allowing such an agreement to hold sway," however, "would be like saying that any document deemed provisionally confidential to simplify discovery is confidential forever." Such a notion simply cannot be squared with the public-access right or the weight of diametrically opposed Circuit precedent. The Clerk, therefore, will be directed to unseal the docket.

Even so, the Court declines to sustain Professor Volokh's motion to unseal in its entirety. The Court is mindful of the negligible public interest in otherwise private educational and mental-health records. The Court finds that certain filings fall under that umbrella and so should be filed with redactions or maintained under seal….

The parties previously asked the Court to allow them to refile eleven docket entries under seal …. Many of these documents are referenced in the Court's prior orders and the parties' briefings, so the public's interest in reading them in detail is appreciably small. Others simply are "highly embarrassing to the average person yet somehow pertinent to this suit," and so are similarly suitable for filing with redactions. The Court finds that documents 1-3, 1-6, 1-7, 5-1, 7-1, 7-3, 7-4, and 9-1 satisfy that standard. Accordingly, the parties shall jointly file redacted versions of these documents as soon as practicable. The unredacted versions still on the docket will remain under seal.

As for the remaining documents … the Court concludes that neither Plaintiff's privacy interests nor the possibility of embarrassment outweighs the presumption of public access. [One] is a memorandum written by Plaintiff in which he advocates for bumping up an A- in his Constitutional Law course to an A or an A+. [A second] is an email from Plaintiff to several Defendants informing them of this litigation. And [a third] is Plaintiff's first motion for reconsideration—a filing presumptively subject to public disclosure. Beyond the fact of Plaintiff's commendable performance in a rigorous course, none of these documents contain proprietary or sensitive information. Because "[a]ny doubt whether material should be sealed should be resolved in favor of disclosure," the Court declines to seal these filings….