The Volokh Conspiracy
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No Pseudonymity for Plaintiff Suing Fashion Institute of Technology Over Alleged Anti-Semitic Discrimination
From Judge John Cronan (S.D.N.Y.) today in Doe v. Fashion Institute of Tech., refusing to reconsider an earlier decision that denied Doe pseudonymity:
First, Plaintiff argues that the Court erred in several ways by concluding that the second and third factors [of the Second Circuit pseudonymity test] (risk of retaliation and severity of harm to the plaintiff) weighed only slightly in favor of anonymity. In so arguing, Plaintiff suggests that the Court overlooked evidence presented along with the renewed motion that a sticker bearing the phrase "The only good Zionist is a dead Zionist" has been affixed to at least two locations inside FIT buildings since early February 2023. Similarly, Plaintiff highlights "[r]ecent violence against Jewish students" on school campuses in New York and across the country in arguing that the Court improperly assessed the risk of harm to her. While Plaintiff's allegations of derogatory stickers affixed to buildings on FIT's campus and of violence against Jewish students elsewhere "are abhorrent," these alleged actions "were 'not directed at plaintiff or similarly situated individuals and so do not demonstrate that plaintiff is at risk of harm.'"
Plaintiff also argues that the second and third factors weigh in her favor because she has "alleged more than reputational harm resulting from the disclosure of her identity." She claims instead that disclosure of her name would result in "potential employers and educational institutions [having] easy access to the disciplinary measures Defendant has taken against Plaintiff …, which would in turn threaten her ability to secure future employment and pursue academic opportunities," and would result in a "severely compromised" "likelihood of [Plaintiff] being hired or accepted to a prestigious graduate institution."
Plaintiff's identified harms are no different than mere reputational harms, insufficient to support a motion to proceed anonymously. These claims of "economic hardship and loss of professional goodwill" do not weigh in favor of anonymity.
Second, Plaintiff argues that the Court erred by concluding that the fourth Sealed Plaintiff factor (the plaintiff's vulnerability) weighed against proceeding anonymously. In its Opinion, the Court recognized that "[w]here Plaintiff is an adult 'who has chosen to level serious charges against a defendant in the public eye,' this fourth factor 'weighs in favor of [her] shouldering the burden of such accusations.'" … Plaintiff argues that she is "particularly vulnerable to reputational harm" as a college student, but, as explained above, Plaintiff's reputational harms are insufficient to warrant proceeding anonymously, especially as Plaintiff is an adult and chose to bring this lawsuit herself.
Third, Plaintiff argues that the Court erred in evaluating the sixth Sealed Plaintiff factor (prejudice to the defendant) because, in Plaintiff's view, FIT waived any claim of prejudice by not opposing Plaintiff's motion and the Court improperly "independently assert[ed] a claim of prejudice" on behalf of FIT…. [But] courts must evaluate prejudice as part of the balancing analysis …, even in the absence of opposition. "[D]istrict courts [must] weigh 'the interests of both the public and the opposing party' in considering such motions." … "Animating Rule 10(a) is the 'public's common law right of access to judicial proceedings,' which is a right 'supported by the First Amendment.'" …
{Plaintiff further argues that FIT's "non-opposition to [the] motion to proceed under a pseudonym is evidence that [Plaintiff's] privacy concerns are substantial and recognized by [FIT]." The Court disagrees. FIT has provided a reason for its non-opposition that is unrelated to Plaintiff's privacy concerns—"its allocation of limited time and resources."
Plus, … FIT has articulated prejudice it would suffer were the Court to allow Plaintiff to proceed anonymously in this action…. When the Court invited FIT to clarify whether it "intended to disclaim all prejudice that could result from Plaintiff proceeding under a pseudonym in this case" by not opposing the motion, FIT expressly declined to do so, and instead noted the prejudice it would suffer throughout the life of this case, id. at 2 ("[A]llowing Plaintiff to proceed anonymously in this case would hinder FIT's ability to defend itself in all phases of litigation, including discovery and at trial. Witnesses who could support FIT's defenses would not be able to come forward if they cannot ascertain the identity of the Plaintiff…. Additionally, FIT would suffer further prejudice if this action were to proceed to trial…. [T]he use of a pseudonym risks confusing a jury, as jurors will likely construe the Court's permission for the plaintiff to conceal her true identity as a subliminal comment on the harm the alleged encounter with the defendant has caused [Plaintiff]…. Thus, allowing Plaintiff to proceed under a pseudonym would prejudice FIT with regard to issues of credibility at trial."} …
