Can People Suing Sean Combs / P. Diddy for Sexual Assault Proceed as John / Jane Does? Depends on Which Manhattan Federal Judge They Draw

From Doe v. Combs, decided yesterday by Judge Lewis Kaplan (S.D.N.Y.):

Plaintiff "John Doe" claims that Sean Combs, a well-known rapper and record producer, sexually assaulted him, and that several businesses owned or controlled by Combs enabled him to do so. The question before the Court is whether the plaintiff should be permitted to litigate this case without revealing his identity. For the following reasons, the plaintiff's motion to proceed anonymously is denied….

"Federal court proceedings and records presumptively are public absent a showing of exceptional circumstances." Accordingly, "[t]he title of [a] complaint must name all the parties." This rule "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." … An exception is appropriate "only where the litigant seeking to proceed anonymously has a substantial privacy interest that outweighs any prejudice to the opposing party and 'the customary and constitutionally-embedded presumption of openness in judicial proceedings.'"

The plaintiff alleges that Combs violently raped him in the presence of multiple strangers. Undoubtedly, this is a highly sensitive and personal claim, and the plaintiff's privacy interest is compelling. The first factor thus favors the plaintiff's use of a pseudonym. However, "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." …

[Another] factor is "whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties." Plaintiff states that he has developed anxiety disorders as a result of the alleged sexual assault, and that public disclosure would cause him further trauma.

The Court appreciates that sexual assault often has long-term, devastating consequences for victims. Given that the defendant is a public figure, this case may attract exceptional media attention and public scrutiny, which understandably might cause the plaintiff embarrassment and distress. "But the threat of significant media attention—however exacerbated by the modern era—alone does not entitle a plaintiff to the exceptional remedy of anonymity."

Overcoming the presumption of openness requires particularized evidence that disclosure will cause injury. "[G]eneralized harm, absent more direct evidence linking disclosure of [the plaintiff's] name to a specific physical or mental injury, is insufficient." The plaintiff has not provided support from a medical professional, or any other evidence, to corroborate his claim that disclosure would cause him psychological injury. Instead, the plaintiff offers only a vague, generic, and speculative claim that "having [his traumatic experience] played out in a public forum could spark more trauma." This conclusory assertion of the possibility of generalized harm—applicable to all victims of sexual assault—is insufficient to carry his burden.

Plaintiff argues also that disclosure would pose a significant risk of physical harm. The only support for this claim is his counsel's declaration that "[n]early all of the victims represented by [his firm] experienced similar threats of violence against either themselves or their loved ones." There is no basis for assuming that plaintiff's counsel has reliable information to that effect. Moreover, the plaintiff has not stated whether he—rather than unspecified others—experienced any such threats. Because the "people have a right to know who is using their courts," a plaintiff must articulate more than "speculative risks of harm" to proceed anonymously. The plaintiff has not done so in the materials offered to the Court….

[The court must also consider] whether the defendant would be "prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court." To assess this factor, courts have examined "the reputational damage to defendants, difficulties in conducting discovery, and fundamental fairness of proceeding anonymously." …

Confidentially disclosing the plaintiff's name to the defendants' counsel, as plaintiff's counsel suggests, would not eliminate the potential prejudice. Even if the plaintiff's identity were known to the defendants, they would face a sizable disadvantage because persons with valuable information about the plaintiff or his allegations would not be alerted to the case.

Particularly in a high profile case in which unknown witnesses may surface, use of a pseudonym may prevent information favorable to the defendants from coming to light. Additionally, the plaintiff's anonymity may undermine the defendants' efforts to mitigate the alleged reputational damage stemming from these serious allegations. Moreover, "fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly […] while plaintiff makes accusations from behind a cloak of anonymity."

The plaintiff is correct that the prejudice potentially suffered by the defendants would be less severe at this early stage in the lawsuit, and that the court may reserve the right to order disclosure at a later stage. Even considering this, [this] factor does not favor the plaintiff's use of a pseudonym….

[And the court must consider] "whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity." "Lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them," including "the identity of the parties." Here, the public's interest is "magnified because [the plaintiff] has made his allegations against a public figure."

This interest is weighed against the public's competing "interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes." The Court takes this potential chilling effect seriously. However, furthering this interest does not require "maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."

So that's the latest decision, and it goes also with Judge Mary Kay Vyskocil's similar decision from last year (and, in large measure, Judge Jessica Clarke's decision from last year). On the other hand, several judges in the same district (the federal district that covers Manhattan), also in cases against Combs, have allowed pseudonymity at least in early stages of the case. So did Judge Analisa Torres less than a month ago.

Same federal district, same defendant, essentially the same allegations (there are of course differences in some factual details, but generally not ones that should change the analysis). And the courts are saying they're applying the same many-factor balancing test that the Second Circuit has set forth. But the test is so vague that different plaintiffs' results vary sharply, as best I can tell just based on particular judges' views about the relative importance of privacy and openness in these sorts of cases.