The Volokh Conspiracy
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Alleged Panama Papers Leaker May Not Sue in Federal Court While Hiding His Name from the Court
From Doe v. Federal Republic of Germany, decided today by Magistrate Judge Gary Stein (S.D.N.Y.):
Plaintiff purports to be the individual who leaked the now-famous trove of offshore financial records known as the "Panama Papers." Using the pseudonym "John Doe" and proceeding pro se, Plaintiff filed this breach of contract action under the Foreign Sovereign Immunities Act against the Federal Republic of Germany … and the Bundeskriminalamt of Germany … on July 24, 2023. Plaintiff claims that Defendants have failed to pay amounts due under a contract pursuant to which Defendants purchased access to the Panama Papers for use in identifying tax fraud and other financial crimes….
In a declaration supporting his motion for leave to proceed anonymously, Plaintiff states that to protect his safety, he has exclusively used the pseudonym "John Doe" in connection with the Panama Papers. He asserts his belief that "should my identity become known, my life would be in immediate peril" and "I would likely be killed." Plaintiff points to a docudrama video shown in Russia in 2017 that he interprets as "an explicit and credible death threat against me by the government of the Russian Federation," and claims he faces similar threats from the governments of China and Saudi Arabia, international drug trafficking organizations, and ultra-high net worth individuals whose activities were exposed by the Panama Papers. Plaintiff's motion argues that under the multi-factor test set forth in Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008), for evaluating requests to proceed under a pseudonym, these serious threats to the physical safety of Plaintiff as well as his family, friends, colleagues, and other individuals weigh in favor of granting him the requested relief….
Plaintiff's showing was sufficiently compelling to persuade Chief Judge Boasberg, applying the D.C. Circuit's similar test, to allow Plaintiff to proceed under a pseudonym in the D.D.C. Action [a nearly identical case the court filed in D.C. and then dismissed -EV], on condition that he disclose his identity under seal to the court [see here for that opinion -EV]. Without indicating any disagreement with Judge Boasberg's thoughtful analysis or conclusion, this Court finds that it would be inappropriate to decide Plaintiff's motion in this action at this time, for several reasons.
First, … Defendants have not yet been served and the Court has denied Plaintiff's motion to effect service through alternative means. Unless and until Plaintiff serves Defendants through the prescribed methods set forth in 28 U.S.C. § 1608(a), this action will not proceed. It would be premature to decide whether Plaintiff may proceed anonymously when it remains unclear if the action will proceed at all.
Second, the Court believes it should resolve Plaintiff's motion with the benefit of Defendants' views rather than on an ex parte basis. Under the Sealed Plaintiff analysis, the interests of the defendant is one important factor to be considered. Defendants are in the best position to articulate their interests in this matter; yet because Defendants have not yet appeared in the action, the Court lacks the ability to compel a response from them at this juncture.
{Under the circumstances here, Defendants might choose to support Plaintiff's request to proceed anonymously, given Defendants' institutional interest in encouraging whistleblowers to come forward and Plaintiff's allegations that the BKA promised to ensure his safety and protect his confidentiality. Or they might not. Regardless, Defendants' position should be taken into account.}
Third, it is unclear what Plaintiff's position is in this Court on the issue that ultimately stymied his effort to proceed pseudonymously in the D.D.C. Action: his willingness to provide his identity under seal to the court….
If Plaintiff abandoned the D.D.C. Action and filed the instant action in the hope that he could avoid having to divulge his identity to this Court in some manner, he was mistaken. In this District, too, parties proceeding anonymously must reveal their names (and other identifying information) under seal to the court….
The Second Circuit [has] articulated several "'vital purpose[s]'" served by this "'seemingly pedestrian'" requirement. The requirement that a party or their attorney identify themselves to the court through their signature "'ensure[s] that a readily identifiable attorney or party takes responsibility for every paper,' thus enabling the Court to exercise its 'authority to sanction attorneys and parties who file papers that contain misleading or frivolous assertions.'" Awareness of the identities of the litigants also allows the court to fulfill its statutory obligations under 28 U.S.C. §§ 144 and 455 to check for conflicts of interest. Moreover, "without knowing the true 'identity of [the] parties' at the outset of a case," the court cannot give preclusive effect to judgments in suits between the same parties.
The governing rules and case law thus make clear that parties wishing to avail themselves of this forum for judicial relief must provide identifying information to the court, even if they are granted leave to proceed under a pseudonym. Accordingly, should Plaintiff refile his motion to proceed anonymously at an appropriate time, the Court, were it inclined to grant such a motion, would nonetheless require Plaintiff to reveal his identifying information to the court under seal in some manner. Unless and until Plaintiff indicates his willingness to do so, it is unnecessary to analyze the Sealed Plaintiff factors and determine whether Plaintiff has shown an entitlement to proceed anonymously.
The Court is sensitive to Plaintiff's concerns that the dangers to his physical safety, and the corresponding need to protect his identity, are unusually acute in this case. Those concerns may support fashioning a sealing procedure that protects Plaintiff's confidentiality as much as possible (for instance, by allowing sealed documents to be filed and maintained in hard-copy form as opposed to electronic form). They do not, however, justify dispensing altogether with the "well-established requirement" that court filings disclose the identity of the filer.
