No Pseudonymity in Libel Case Alleging False Domestic Violence Claims

From Doe v. Roe, decided today by the Ohio Court of Appeals, in an opinion by Judge Emanuella Groves, joined by Judges Eileen A. Gallagher and Sean Gallagher:

Ms. Doe filed a seven-count complaint against the Roes … [alleging defamation, invasion of privacy, and related torts]…. The allegations stemmed from the Roes['] purported reporting of false domestic violence claims involving Ms. Doe and the children of Ms. Doe and Mr. Roe to authorities and Ms. Doe's employer….

The trial court at first allowed Doe to proceed pseudonymously, but then concluded otherwise, and Doe appealed. The appellate court concluded that the trial court didn't abuse its discretion:

According to Civ.R. 10(A), the names and addresses of all parties must be included in the complaint. The rule's requirement ensures that judicial proceedings are conducted in public and supports the long-standing principle that the public has a right to know a litigant's identity…. "Identifying the parties to the proceeding is an important dimension of publicness." … "It is the rare exception for a litigant to be allowed to proceed anonymously." ….

Ms. Doe [argues] that pseudonym status is warranted because her lawsuit involves "intimate personal details of the family dynamic" and "the litigation of this matter is inherently tied to information contained in [the civil protection order] and juvenile court dockets." … Ms. Doe asserts that further grounds for pseudonymity include the likelihood of retaliation; amplification of pain, suffering, and personal embarrassment; and potential misuse of information to cause personal and professional harm….

In response, … [t]he Roes argue that the involvement of minor children does not make the information in the complaint highly personal or sensitive in nature, noting that the children are not parties to the litigation and less restrictive means are available to protect their privacy, e.g., protection orders or the use of the children's initials…. Finally, the Roes emphasize that Ms. Doe cannot expect to maintain anonymity from her employer when she voluntarily initiated a civil action that made her relationship with her employer an issue in the case….

While we appreciate the personal nature of family dynamics and the potential stigma surrounding false claims of domestic violence, we cannot say that identification of the parties discloses "information of the utmost intimacy" that exceeds the public's right to open judicial proceedings and overcomes the requirements of Civ.R. 10(A). See, e.g., Doe v. Bruner (Ohio Ct. App. 2012) (finding that disclosure of facts surrounding a sexual assault, while likely to include information of the "utmost intimacy," is insufficient to allow plaintiff to proceed pseudonymously based on that factor alone); Doe v. Cedarville Univ. (Ohio Ct. App. 2024) ("While Doe could suffer some stigma through the revelation that she was involuntarily committed for over three days, we cannot conclude that the trial court abused its discretion by finding that this detail of Doe's private life was insufficient to rise to the level of a matter of 'utmost intimacy."' (Emphasis in original.))….

[W]e find that Ms. Doe's arguments regarding alleged fears of retaliation are insufficient to overcome the presumption against pseudonymity. A plaintiff seeking anonymity based on this [argument] must show that the filing of the lawsuit creates a risk of retaliation. Ms. Doe has not shown that any risk of harm against her or her family would increase if she were required to identify the parties by name. Rather, Ms. Doe's fears of retaliation appear to stem from the Roes themselves, the parties she claims should already be aware of their involvement in the lawsuit based on the information contained in the complaint despite being named pseudonymously.

We further find that the use of pseudonyms will hinder the Roes' ability to litigate, conduct discovery, and explore the veracity of Ms. Doe's claims in this matter, prejudicing them in their defense. While the Roes may be able to identify the anonymously named parties based on the information contained in Ms. Doe's complaint, their efforts to secure information from third parties will be limited by the use of pseudonyms.

Based on the foregoing, we cannot say that this is an exceptional circumstance requiring the use of pseudonyms and agree with the trial court: Ms. Doe's privacy interests do not substantially outweigh the presumption of open judicial proceedings.

{[W]e emphasize that the instant appeal does not involve a civil protection order, juvenile, or domestic violence case and contemplates only the identification of the adult parties in Ms. Doe's civil lawsuit….}

Fun fact: The 12-member Eighth District Ohio Court of Appeals, which covers the Cleveland area, includes three Gallaghers, including two Eileen Gallaghers (Eileen A. Gallagher, who was on the panel, and Eileen T. Gallagher, who was not).

Note that I filed an amicus brief opposing pseudonymity, with the invaluable help of local counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson, Co., L.P.A.)—many thanks to him for his help here and in other past cases, including the Ohio Supreme Court pseudonymous police officer libel case. UCLA School of Law LL.M. student Bhavyata Kapoor also worked on the brief. The Roes are represented by James E. Boulas and Panagiota D. Boulas (James E. Boulas Co., LPA).

Here, by the way, is what we argued in our amicus brief:

[* * *]

This is a garden variety defamation lawsuit of the sort that is routinely litigated in the parties' own names. Many defamation litigants would prefer to avoid being linked with the accusations over which they are suing—just as many plaintiffs and even more defendants would prefer to avoid being linked with the allegations in many kinds of cases, allegations that may reflect badly on one or both parties. But our legal system has chosen to adopt a strong norm of public access to court records, including to the names of the parties, so that the public and the press can better supervise how the legal system operates. And this is not one of the rare cases in which an exception from this norm is warranted. The trial court thus did not abuse its discretion in ultimately deciding to deny pseudonymity. See Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 18, __ N.E.3d __ (2d Dist.) ("[A] trial court's ruling regarding a party's request to proceed pseudonymously will not be overturned absent an abuse of discretion.") (cleaned up)….

[I.] There is a strong presumption against pseudonymous litigation

"It is the rare exception for a litigant to be allowed to proceed anonymously." State ex rel. Cin. Enquirer v. Shanahan, 166 Ohio St.3d 382, 391 (2022). "Civ.R. 10(A) requires plaintiffs to provide their names and addresses in the captions of their complaints." Id. at ¶ 30. "The rule ensures that judicial proceedings will be conducted in public, and it supports the principle that 'the public have a right to know who is using their courts.' The public's right to know a litigant's identity derives from the United States and Ohio Constitutions and the common law." Id. at ¶¶ 30-31 (cleaned up) (quoting Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997)).

The right of access to parties' names is a facet of the broader right of access to court records more generally. "[I]dentifying the parties to the proceedings is an important dimension of publicness." Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. The right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch," Company Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir.2014), and that includes the presumption against pseudonymity, id. at 273-74. Ohio law is consistent with federal law on this strong presumption against pseudonymity. See id. at ¶ 31 (citing federal appellate cases in explaining Ohio law).

In particular, the names of the parties are often key to investigating the case further—for instance, by helping reporters and researchers who are considering writing about the case (and who are thus "oversee[ing] and monitor[ing] the workings" of the court system in the case) answer questions such as:

• Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant?
• Is there evidence that the litigant is untrustworthy, perhaps in past cases or in past news reports?
• Do past cases brought by the same litigant reveal similar allegations made by the litigant, which past authorities have concluded were not corroborated?
• Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
• Was the incident that led to the lawsuit covered or investigated in some other context? For instance, if the plaintiff is suing for libel, wrongful firing, or wrongful expulsion based on accusations that the plaintiff had committed a crime, had the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out?
• Is there online discussion by possibly knowledgeable people about the underlying incident?
• Is there some reason to think the judge might be biased in favor of or against the litigant?

Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around. The parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1370-71 (2022).

Indeed, based on some public records searches using the addresses included in the trial court docket in this case, it appears to amicus that the parties had litigated against each other before in a matter that may be related to their family relationship. Indeed, this litigation appears to have yielded five Court of Appeals (Eleventh District) opinions, plus one U.S. District Court opinion, and nine short orders from the Ohio Supreme Court. Any coverage of how this case progresses could thus be enriched by the backstory that the previous litigation provides.

But in the absence of the parties' names in the record, such a link with past litigation is merely conjecture and potentially unreliable. Indeed, if the parties' names aren't in the public record, any reporter writing about this case likely cannot take advantage of the fair report privilege in drawing the likely link to the past litigation. The norm of open access is meant to allow the public and the press to comment on cases safely and based on fact, rather than at some risk and based on conjecture. More broadly, "the public (not just the [intervenors] in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself." Cin. Enquirer, 166 Ohio St. 3d at 392.

And defamation cases are fully governed by the presumption of public access to party names. See, e.g., Cin. Enquirer, 166 Ohio St. 3d at 389-90 (refusing to allow pseudonymity in a libel case); Doe v. Doe, 85 F.4th 206, 217 (4th Cir.2023) (likewise). Indeed, defamation cases especially implicate the First Amendment, because the defendants may argue that their speech is true and thus constitutionally protected. It is thus especially important that the public be able to monitor how courts deal with defamation litigation.

Naming the parties also helps promote accuracy of the judicial process. See Volokh, supra, 73 Hastings L.J. at 1384-92. A named witness "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account." Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y.2015), aff'd, 672 F. App'x 48, 52 (2d Cir.2016); see also Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174 (E.D.N.Y. Oct. 14, 2020). "Public access creates a critical audience and hence encourages truthful exposition of facts, an essential function of a trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983) (so stating in opposition to sealing generally).

Likewise, "it is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of other witnesses.'" Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y.2006) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 596-97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties.")); see also Rapp v. Fowler, 537 F. Supp. 3d 521, 531 & n.56 (S.D.N.Y.2021) (same); Doe v. Univ. of Vermont, No. 2:22-CV-144, 2022 WL 17811359 (D.Vt. Dec. 19, 2022) (same). If the parties are allowed to proceed pseudonymously, this opportunity for witness testimony may be lost.

[II.] The presumption against pseudonymity is not rebutted here

As with Doe v. Doe, 85 F.4th at 217, "[t]his case is no different than a garden variety defamation case, and it does not present the exceptional circumstances necessary for Appellant to proceed by pseudonym." In considering whether the presumption against pseudonymity is rebutted, courts consider "(1) whether the plaintiff seeking anonymity is suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiff to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; … (4) whether the plaintiff is a child," Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 17, and "whether threats of retaliation have been made against the plaintiff and the potential prejudice to the opposing party," id. at ¶ 17 (cleaned up).

Factors 1 and 3 do not cut in favor of pseudonymity here, and appellants do not claim any threats of physical retaliation. Nor is "exceedingly intimate information" present here; to be sure, many people would prefer not to have their names linked with allegations of criminal behavior, especially when that might come to the attention of employers, but that is not itself a basis for pseudonymity in cases where the central factual dispute is about such allegations. Cf. A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 503 (App.Div.1995) ("Plaintiff's arguments … that he and his family might be isolated from society and that his employment would be in jeopardy are not only somewhat speculative, but any such ramifications are due to his actions and his election to institute litigation over a perceived wrong."). "[W]here the stated purpose is to avoid personal embarrassment or potential damage to future professional or economic well-being, federal courts have denied requests to proceed anonymously." Doe v. Doe, 282 Ill. App. 3d 1078, 1084 (1996). See also A.K. v. Ill. Dep't of Children & Family Servs., 2017 IL App (1st) 163255-U, ¶ 24 (refusing to allow pseudonymity in challenge to child abuse findings, because "the privacy concerns that plaintiffs raise exist in many cases in which a party is accused—perhaps wrongly—of some misconduct"). "[M]ost lawsuits will bring up matters that plaintiffs and defendants would prefer to keep private, including sometimes the identities of the parties. It is well-established, however, that only the 'exceptional circumstance' will allow a plaintiff to proceed under a pseudonym." Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 26.

Nor is this a lawsuit brought on behalf of a child, or involving exceptionally private allegations related to a child, such as allegations of sexual abuse. Rather, it is an ordinary lawsuit in which adults sue other adults for injury to themselves, though the injury stems from a statement about the children. The children's names may be redacted in such a situation. Cf. Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 36 (noting that specific factual details could be "protected … through the use of a protective order"). But such cases are routinely litigated with the adults' names disclosed, even where someone might be able to infer the child's name by knowing the adults. See, e.g., Johnson v. Brown, No. CV2012020942, 2012 WL 12542161 (C.P. Dec. 14, 2012) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's and defendant's child); Myers v. Steiner, 2011-Ohio-576, ¶ 1 (9th Dist.) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's child); Peoples v. Lang, 2009-Ohio-2693, ¶ 2 (5th Dist.) (likewise); Cox v. Cox, 2009-Ohio-1446, ¶ 2 (12th Dist.) (defamation lawsuit stemming from false allegations that plaintiff had sexually abused his stepsister when they were children).

Conclusion

For good reason, the Ohio civil litigation system is characterized by openness, including openness as to the names of parties. The plaintiff in this case is no more entitled to an exception from this rule than are the vast range of other litigants who routinely have to litigate under their own names, and who have to do so despite the personal and professional difficulties that such litigation may cause.