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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.
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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
For a guy (or gal, or whatev) who leaked super-confidential stuff about other people, he, she or it has a trusting faith in the security of a court’s seal.
My read was that this person has such a profound lack of faith in the security of a court’s seal that they dropped their action in D.C.
“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 [un?]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.”
I stand corrected. He sees in humanity a reflection of himself.
Thought experiment:
Pretend it went the other way.
How would a judgment work out if it were otherwise? The defendant is ordered to send money to an anonymous Bitcoin wallet address?
And how do we know that the plaintiff is the real plaintiff. Could be someone posing as the plaintiff. Is there some sort of evidence that could be used to prove they were the real plaintiff without revealing their identity to the court?
Fun case.
“How would a judgment work out if it were otherwise? The defendant is ordered to send money to an anonymous Bitcoin wallet address?”
They would just send it to the attorney, as is rather common in normal cases.
The case is pro se.
Thanks, I missed that. The opinion makes more sense now.
So you just trust the attorney is in contact with the real leaker?
Good further point on the thought experiment.
I kind of am violating my own rules here, when I talk about a thought experiment, I should not be so strict about the particular facts of the case.
Plus imagine if there was actually a trial. This person is pro se, so they propose to what? Show up to court in a Guy Fawkes mask to hide their identity?
If the case goes forward, would it get past the Foreign Sovereign Immunities Act?
If he’s that afraid maybe he should just take a part time job at his local McDonalds if he wants some extra money rather than risk the FSB and Chinese peeling his fingernails off to make Germany pay up his supposed share of the spoils. Especially since he claimed he was doing this out of the good of his heart and concern over income inequality…which implies concern over others not just his small income.
I don’t know. I believe the best place to start combatting income equality is at home. Right now, my income is unequal to the income of Elon Musk. And I intend to fix that.
Put your own oxygen mask on before you help others!
What’s your plan to fix it ? Making Elon poorer or you richer ?
But, stipulating for the sake of argument that “combatting income inequality” is a worthwhile enterprise, your plan to “start here” implies that you must be planning on the Elon poorer route.
To the nearest decimal point, everyone “here” has well above the global average income. So redistributing from very rich Americans to poor Americans only shuffles slices of pie between members of the global rich. Starting to fix “the problem” here can only help if the plan is to bring everyone in America closer to the global average by reducing the overall size of the American pie.
In real life, meanwhile, the last 30 years have seen astounding income gains for the poorest people in the world as literally billions have climbed out of absolute poverty. And the solution did not come from “here”, but from over there. Governments in the poor bits of the world started getting out of the way of natural, normal, local commerce.
Precisely why the fashion changed one would have to guess. But the collapse of the Soviet Union and the transparent failure of its economic model probably helped. The conversion of China from a socialist to a more or less fascist economic model probably helped too. And the waning fortunes of the socialist leaning Congress party in India has certainly helped.
‘Governments in the poor bits of the world started getting out of the way of natural, normal, local commerce.’
Corrupt governments let foreign corporations plunder natural resources while trashing the environment and barely generating a blip in the overall economy.
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.
How many ‘seals’ are broken in the courts via leaks? The plantiff is afraid of getting him/herself killed. Considering the nature of the disclosure, can you blame him/her?
I don’t think the court is blaming the plaintiff for being afraid, and I wouldn’t, either. The court’s point, with which I agree, is that such a risk is unavoidable if you want to sue in American courts. If plaintiff really wants to avoid any such risk, then he can’t sue.
To be sure, it’s unfortunate that this means he has to give up the right to recover on his contract claim if he wants complete protection for his identity. But he never had the right to recover purely anonymously in the first place (to the point of being anonymous not just from the public but from the court) — the American legal system just doesn’t provide such a right.
Professor Volokh, although I recognize there are different issues, I remain keen to hear your take on the massive anonymity afforded to various participants in the Google case. You are a mostly-reliable champion of openness in court procedures, but have remained curiously silent about that case.
I’m surprised that the Germans aren’t honoring their deal — out of hopes that someone else will leak equally lucrative stuff to them in the future.