No Pseudonymity in Ex-Professor's Sexual Harassment and Assault Lawsuit Against Norwich University

From Doe v. Norwich University, decided last week by Washington County (Vermont) Superior Court Judge Daniel Richardson:

[Plaintiff seeks permission] to proceed in this case under [a] pseudonym …. She also seeks:

[3.] Entry of a permanent redaction/sealing order for:

1. Plaintiff's home address and location data;
2. Plaintiff's children's identifying information: names, ages, schools, and activities;
3. Plaintiff's private medical/counseling details;
4. Plaintiff's former campus/classroom offices, schedules, extensions, and job identifiers not germane to adjudication;
5. Exhibits containing any of the foregoing.

[4.] Entry of a Protective order under V.R.C.P. 26(c) prohibiting disclosure or use sealed/confidential materials beyond this litigation.

In short, she proposes to litigate this case as a completely unidentified plaintiff against named defendants, who in addition will be subject to substantial limits on their free speech rights. She asserts in her motions and a supporting affidavit that doing so will avoid "[h]assessment [sic], doxxing, embarrassment, and professional repercussions" as well as "[i]rreparable emotional harm and exposure of sensitive facts to her minor children and their peers via internet/social media search." She asserts without analysis that there is no legitimate public interest in her identity….

To warrant a seal [under the Vermont Rules for Public Access to Court Records], the court must find "by clear and convincing evidence, that good cause and exceptional circumstances exist for the restriction of public access." Vt. R. Pub. Acc. Ct. Rec. 9(a)(5). And any seal must be implemented in the "least restrictive" manner possible. Vt. R. Pub. Acc. Ct. Rec. 9(a)(5)(a). Those terms are further reinforced and defined by the strong constitutional right of access to court records set out in cases such as State v. Densmore (Vt. 1993)….

Civil Rule 10(a) requires, in no uncertain terms: "In the complaint, the title of the action shall include the names of all the parties." V.R.C.P. 10(a)…. "[O]ne of the essential qualities of a Court of Justice [is] that its proceedings should be public." … "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." …

"Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess 'the real-world aftermath of a suit,' and to determine for themselves whether 'justice was done.' Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness." …

Nevertheless, in rare circumstances, a party may appropriately be permitted to proceed under a pseudonym…. There is no binding case law in Vermont setting forth the correct analysis when a plaintiff seeks to litigate anonymously. However, federal case law is generally consistent across circuits, and the court seriously doubts that the analysis should be any different in Vermont….

Consideration of applicable factors [identified by federal courts] reveals nothing extraordinary about this case that might warrant the rare order permitting a plaintiff to litigate anonymously. First, the court understands that, to Ms. Doe, the subject matter of this lawsuit may seem highly sensitive and personal. However, civil suits with allegations about sexual harassment, discrimination, and assault are litigated in the courts commonly without suppressing party names. To the extent that she hopes to keep the litigation secret so that she can control how her children may hear about it, that loss of control is nothing unusual. It is an ordinary incident of the transparent nature of civil litigation.

Second, while Ms. Doe proposes that revealing her identity might subject her to ridicule, retaliation, or opprobrium, the concern is highly speculative and there is no basis for concluding that any such retaliation would rise to the level of physical or emotional harm…. "The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." …

Third, Ms. Doe is not a child or for some other identified reason particularly vulnerable.

Fourth, proceeding by pseudonym likely would not achieve the goal of anonymity in any event. The allegations of the complaint are clear that many people in the Norwich community are well aware of the underlying circumstances, and a reporter for a student newspaper sought to interview her about them. There also has been prior, related litigation.

Fifth, there would be probable prejudice in allowing Ms. Doe to make serious allegations publicly against Defendants and others who are named while remaining anonymous herself.

Sixth, whatever legal issues this case may present, the court anticipates that the facts, sprawling in the complaint, are likely to be deeply disputed. Factual disputes of this sort heighten the public interest in the identities of the parties. This case plainly does not present the sort of pure legal question that might render the identity of a party less relevant….

The request to proceed under a pseudonym is [therefore] Denied. With the request to litigate anonymously denied, most of the requests to seal or redact (and the related request for a Rule 26(c) order, lose any purpose. The exception is the request to keep secret "Plaintiff's private medical/counseling details," which the court presumes Ms. Doe would seek regardless whether she is permitted to litigate anonymously.

This request is Denied at this time. The court notes first that it is a completely generalized request. Ms. Doe cites nothing extraordinary about any particular medical/counseling records that might warrant secrecy. Moreover, this is precisely the sort of privacy that a plaintiff voluntarily surrenders when she chooses to file a case like this. See Mattison v. Poulen (Vt. 1976) ("We agree that, by bringing an action for damages arising from the injuries the plaintiff claims to have suffered, the [patient] privilege is waived."); Paquette v. State (Vt. Super. Ct. 2018) ("By filing this lawsuit, Mr. Paquette has placed his current and prior back injuries and related treatment squarely at issue, and he has waived related privacy rights and privileges."); Adams Thompson v. Potter (Vt. Super. Ct. 2018) ("Ms. Adams-Thompson certainly has privacy interests in her medical, employment, and educational records. However, by filing this lawsuit, which places those matters squarely at issue, she generally has waived related privacy rights and privileges.")….