No Pseudonymity for Alleged Jeffrey Epstein Victims Suing FBI Over Failure to Properly Investigate Epstein

From Doe v. U.S., decided yesterday by Judge Mary Kay Vyskocil (S.D.N.Y.):

Plaintiffs allege that for over two decades, the Federal Bureau of Investigation … allowed [Jeffrey] Epstein and others to sex traffic and sexually abuse children and young women by failing to investigate the reports, tips, and evidence it had of "rampant sexual abuse and sex trafficking by Epstein."

Plaintiffs sought leave to proceed under pseudonyms, but the court said no (note that at this stage there is no discussion yet of whether plaintiffs can sue FBI on this sort of failure-to-investigate theory):

Plaintiffs here allege that due to the FBI's failure to take appropriate action to investigate Epstein, they continued to be "sexually abused, raped, assaulted, tormented, violated, harassed, [and] intimidated," among other trauma. The Court agrees that Plaintiffs' allegations of sexual assault are "highly sensitive and of a personal nature," and, thus, the first factor of Sealed Plaintiff weighs in favor of anonymity. However, this factor is not dispositive. Courts in this district have explained that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." Indeed, courts have denied motions to proceed under a pseudonym in similar circumstances….

Plaintiffs [also] argue that these factors weigh in favor of anonymity because "identification poses a further risk of mental harm." They assert that their experiences are "deeply traumatic" and "[p]laying out those experiences in a public forum would retraumatize them." Specifically, they argue that "certain Plaintiffs have sought out mental health treatment in connection with the abuse described in the complaint and would certainly experience additional significant harm if [they are] forced to reveal [their] identity to the public."

However, Plaintiffs' allegations of potential harm are too speculative and insufficient to outweigh the presumption in favor of openness in judicial proceedings. "The risk of psychological injury stemming from identification is a cognizable harm that can serve as a legitimate basis for proceeding anonymously." However, the potential injury alleged must be more than "mere embarrassment" or "social stigmatization." For example, a court in this Circuit allowed a plaintiff to proceed anonymously when she "provided specific evidence from medical professionals predicting that revelation of her identity would likely 'cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.'"

The Court acknowledges Plaintiffs' allegation, in the Complaint, that as a result of Defendant's purported negligence, they suffered, inter alia, "post-traumatic stress disorder, insomnia, anxiety, shock, fear, nightmares, shame, embarrassment, loss of enjoyment of life, flashbacks, [and] need for future medical and psychiatric expenses." These have, apparently, already occurred. However, nothing in the Complaint nor Plaintiffs' motion reference "[t]he risk of psychological injury stemming from identification."

Moreover, Plaintiffs "must base their allegations" of mental harm "on more than just 'mere speculation.'" Indeed, a court in this District explained that, although a plaintiff specifically alleged that she suffered from post-traumatic stress disorder and that her condition would be exacerbated by disclosure of her identity, the plaintiff did not provide "any medical corroboration," and the court could not "speculate" about the nature and severity of any mental injury from disclosure.

Plaintiffs broadly argue that if their identities were publicly disclosed, they "would certainly experience additional significant harm" and "retraumatize them." Without corroboration from medical professionals, however, their general allegations of potential trauma are "mere speculation" about a potential and conclusory risk of psychological injury that cannot support their motion to proceed anonymously. Likewise, the declaration of Plaintiffs' counsel which states, "I represent to the court that certain Plaintiffs have sought mental health treatment in connection with the abuse described in Plaintiffs' complaint," falls short of the "medical corroboration" necessary to support a motion to proceed anonymously.

Plaintiffs also briefly allude to a concern of retaliatory harm because the co-conspirators who participated Epstein's trafficking operation had, and continue to possess, "tremendous wealth and power and have demonstrated a clear ability to cause them all serious harm." However, Plaintiffs' unsupported theory that unspecified and unknown alleged "co-conspirators" may cause them "serious harm" is too speculative to support their motion. Moreover, this action is not brought against Epstein's estate or any other alleged co-conspirator. This action is brought against the United States of America. While the Court hardly thinks such a warning is necessary, the Court admonishes counsel for the United States, to refrain from any action that would substantiate this allegation. As in any action, any effort to tamper with any party or witness in this case will be met with severe consequences.

Additionally, the Court notes that even when a defendant's "notoriety will likely cause [a] case to attract significant media attention," plaintiffs' concerns about "public humiliation and embarrassment" generally are "not sufficient grounds for allowing [them] to proceed anonymously." Instead, as the Court explains below, the public's interest in allegations against Epstein (a widely-known figure) including the identities of his accusers, weigh against granting Plaintiffs' motion….

Plaintiffs do not allege that they are currently minors, nor do they provide any allegation with respect to their age more generally in their Complaint. While the Complaint very broadly states that "[a]ll causes of action arose from 1996 and continued until 2019," the Complaint provides no insight into how old the Plaintiffs were when the alleged abuse occurred. As such, Plaintiffs have not identified any reason for the Court to treat them as more vulnerable than the great run of adult plaintiffs who bring allegations of sexual assault in their own names, subject to public scrutiny….

Plaintiffs [also] argue that the United States would not be prejudiced if Plaintiffs litigate their claim anonymously because "[t]his is not a case in which the Defendant will not know the Plaintiffs' identity." Specifically[,] Plaintiffs state that counsel "will confidentially disclose Plaintiffs' name[s] to counsel for the Defendants." They argue that, as a result, "Plaintiffs' anonymous status will not impact any aspect of Defendant's ability to take discovery."

The Court does not accept Plaintiffs'"mere speculation," that proceeding under pseudonyms "will not impact any aspect of Defendant's ability to take discovery." For example, the United States may need to disclose Plaintiffs' names to at least some third parties if the United States intends to take non-party depositions. Moreover, "this unorthodox arrangement still runs against the public's traditional right of access to judicial proceedings." …

[C]ourts are open forums to which the public has a right of access. Plaintiffs cannot expect to litigate their claim in court without the underlying facts of the case, including their identities, being accessible to the public…. "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties." There is great public interest in not only the allegations against Epstein, but also in the identities of his accusers, and the government's investigation into his sex trafficking operation. In other words, this is not a case that involves "abstract challenges to public policies, but rather … particular actions and incidents."

Thus, "open proceedings … benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Indeed, it is the kind of case that "further the public's interest in enforcing legal and social norms." Plaintiffs argue that the public "has a [] greater interest in knowing who is accused of sexual abuse and where the abuse is alleged to have occurred than any interest in knowing the specific identity of a victim." Plaintiffs go on to urge that "the sensitive and personal nature of Plaintiff's [sic] allegations of sexual assault and the likelihood of further psychological injury overcomes any presumption of openness." "It may be, as plaintiff[s] suggest[], that victims of sexual assault will be deterred from seeking relief through civil suits if they are not permitted to proceed under a pseudonym. That would be an unfortunate result. For the reasons discussed above, however, plaintiff[s] and others like [them] must seek vindication of their rights publicly." …

Some federal courts have been more open than others to allowing alleged sex assault victims to sue pseudonymously (see pp. 1430-37 of The Law of Pseudonymous Litigation), but courts in the Southern District of New York have been especially hesitant to allow this.