Foreigners: When You File in U.S. Courts, You Should Expect U.S. Rules of Public Access to Your Filings

"Plaintiff states that he was not aware that his complaint would be made public, and he suggests that, under Korean law, the personal information of litigants is not made public." But "[w]hether or not he intended to do so, by initiating this action in a United States District Court, Plaintiff has made his name a matter of public record."

From the decision earlier this month by Chief Judge Laura Taylor Swain (S.D.N.Y.) in Hong v. Sun:

Plaintiff, who resides in the Republic of Korea, brings this action pro se. For the reasons set forth below, the Court denies Plaintiff's request to limit the public's access to his court filings …. On September 5, 2023, the Court received from Plaintiff two email letters asking the Court to "change [his] case to 'private.'"  Plaintiff states that he received an email, and possibly a phone call, from a "man claiming to be a journalist," who was inquiring about his case.  The journalist told Plaintiff that he obtained his contact information from Plaintiff's "litigation file" available on the Public Access to Court Electronic Records ("PACER") system.  Plaintiff states that he is "scared and worried that [the journalist] contacted" him.  He asks the Court to "treat my case as 'private' (not 'public')."

The Court construes Plaintiff's letter as a motion to proceed anonymously or under a pseudonym and a request that all documents in his case be placed under seal….

Rule 10(a) of the Federal Rules of Civil Procedure provides that "[t]he title of [a] complaint must name all the parties." "This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." Courts have … permitted a party to proceed anonymously or under a pseudonym in a limited number of circumstances…. [But] {the circumstances here are not sufficiently extraordinary to outweigh the presumption of public access.}

Plaintiff, who is an international investor, brings this action alleging that Defendants violated his rights when they engaged in securities fraud. Plaintiff also states that this action is related to another case pending in this court, in which the United States Securities and Exchange Commission is suing several of the same defendants. See Sec. & Exchange Comm'n v. Sun, No. 23-CV-2433 (ER) (S.D.N.Y.). Such allegations are a matter of public concern and weigh against Plaintiff's proceeding under a pseudonym.

Plaintiff's sole argument for proceeding anonymously or under a pseudonym is that he was "scared" and "worried" when a reporter contacted him after finding his contact information through PACER, a public electronic database of court filings. Plaintiff alleges no facts suggesting that disclosing his identity or contact information places him or anyone else at risk of retaliatory physical or mental harm. He is presumably an adult, and he does not allege that he is particularly vulnerable to any possible harm. Whether or not he intended to do so, by initiating this action in a United States District Court, Plaintiff has made his name a matter of public record. {In his letter, Plaintiff states that he was not aware that his complaint would be made public, and he suggests that, under Korean law, the personal information of litigants is not made public.} That Plaintiff waited more than nine weeks after filing a public complaint before requesting that his identity be kept private also weighs against granting his request….

The Court can also construe Plaintiff's motion as requesting to seal the documents filed in his case. Both the common law and the First Amendment [presumptively] protect the public's right of access to court documents…. [T]he document Plaintiff seeks to seal—his complaint—is clearly a "judicial document." As discussed above, Plaintiff has not demonstrated that any privacy risks or potential harm he may experience as a result of publicly litigating this action outweigh the presumed public access to the judicial process. The Court therefore denies Plaintiff's motion to seal without prejudice to renewal at a later time with appropriate justification….