Still No Pseudonymity in #TheyLied Defamation Case Over Sexual Assault Allegations

From yesterday's decision (in my view, a correct decision) by Judge F. Kay Behm (E.D. Mich.) in Doe v. Doe (reaffirming an earlier decision, by denying a motion for reconsideration):

Plaintiff and Defendant are half-siblings and have known each other for over forty years. Plaintiff owns a law firm that operates nationwide, with a primary business address in Oakland County, Michigan.

The relationship between Plaintiff and Defendant deteriorated when Defendant allegedly failed to perform on a contract to work for Plaintiff, and defaulted on a personal loan. A few days after Plaintiff terminated the contract for Defendant to work for Plaintiff, Defendant called Plaintiff's former spouse and told her that 30 years ago, Plaintiff got Defendant drunk and sexually assaulted her. Plaintiff alleges that this statement by Defendant is false and defamatory….

There is generally a presumption of open judicial proceedings in the federal courts; proceeding pseudonymously is the exception rather than the rule. Rule 10 of the Federal Rules of Civil Procedure generally commands that the complaint state the names of all parties. In order to circumvent this requirement, it must be shown that the need for anonymity substantially outweighs the presumption that parties' identities are public information and the risk of unfairness to the opposing parties. …

Plaintiff argue[s] that … "[c]ourts generally allow a plaintiff to litigate under a pseudonym in cases containing allegations of sexual assault because they concern highly sensitive and personal subjects." And because Defendant is his half-sibling, the disclosure of either party's identity would lead to the inevitable disclosure of the other.

The court was and remains cognizant that the accusation of sexual misconduct can itself invite harassment and ridicule. Doe v. Doe (E.D.N.C. 2023). But the public has an interest in the openness of judicial proceedings; "if courts were to allow mutual pseudonymity in sexual assault-related libel or slander suits, then 'whole areas of the law could become difficult for the media and the public to monitor, outside the constrained accounts of the facts offered up by judges and lawyers.'"

Although Plaintiff credibly asserted that disclosure of the parties' names in this case may mean that internet search results will associate them with this lawsuit and its potentially sensitive facts, … that [is] not a factor unique to this particular Plaintiff justifying a departure from Rule 10. Other than the asserted reputational damage to his law firm by revelation of his name, Plaintiff [does] not assert a specific, individualized claim of potential retaliation or harassment. See Doe v. Megless (3d Cir. 2011) ("That a plaintiff may suffer embarrassment or economic harm is not enough."). The court found it telling that Plaintiff failed to cite a single case in which a plaintiff in a defamation or libel action was allowed to proceed pseudonymously against an alleged victim of sexual assault. See Roe v. Doe 1-11 (E.D.N.Y. 2020) ("The Court finds it highly persuasive that Plaintiff fails to and is unable to cite a single case in which a plaintiff, suing for defamation and alleging he was falsely accused of sexual assault, was allowed to proceed anonymously against the victim of the purported assault."); DL v. JS (W.D. Tex. 2023)….

Plaintiff argues that because the identification of one party would "inevitably" lead to the identification of the other, the privacy implications for both individuals is heightened. He says that "the allegations would significantly impact Plaintiff's client relationships and ability to practice law effectively." He says "[t]he inherently intimate nature of sexual assault allegations places this case squarely within the category of cases warranting special privacy protections." He says the allegations involve acts while the parties were minors. And he says he seeks to protect "both parties' identities," which doesn't advantage either party in his view.

The court does not give great weight to Doe's argument that the allegations concern acts when he and Jane Doe were minors; by the terms of his complaint, both parties are well into adulthood; the privacy interests they had as minors are lessened some decades later.

Admittedly, some cases (though not any identified by Plaintiff) find that plaintiffs may proceed under pseudonyms "when asserting a claim based on sexual abuse or assault, especially where the plaintiff was a minor when the assault allegedly occurred." But those cases are distinguishable from the Plaintiff here, who is not alleging sexual assault but instead is alleging a defamatory statement concerning an alleged sexual assault…..

As to the mutuality of protection afforded by the anonymity of half-siblings, and Plaintiff's assertion that he must remain anonymous in order to protect Defendant's anonymity, the court is skeptical that Plaintiff has standing to assert the need to proceed anonymously on behalf of Defendant. It is, after all, not clear that Defendant would want to proceed anonymously in this case. But compare Doe v. Roe (D.D.C. 2025) (allowing a Jane Doe suing for sexual assault to assert anonymity on behalf of the accused defendant, and noting "Plaintiffs' motion on behalf of Roe is a novel approach and, if he so chooses, Roe may subsequently move to remove his pseudonym.").

Nor is this allegedly mutual protection as clear-cut as Plaintiff would have it. Several courts have reasoned just the opposite—that permitting a plaintiff suing for defamation regarding an alleged sexual assault to proceed under a pseudonym "would be fundamentally unfair" (emphasis added) because a John Doe plaintiff would be able "to 'clear his name' and wield a potential judgement against Jane Doe to his advantage but hide under a shield of anonymity if unsuccessful." Doe v. Doe; DL v. JS…. As the Fourth Circuit put it in similar circumstances, Doe "wants the option to hide behind a shield of anonymity in the event he is unsuccessful in proving his claim, but he would surely identify himself if he were to prove his claims." Doe v. Doe (4th Cir. 2023) ("[W]e fail to see how Appellant can clear his name through this lawsuit without identifying himself. If Appellant were successful in proving defamation, his use of a pseudonym would prevent him from having an order that publicly 'clears' him.").

Similarly, although John Doe here argues that these allegations will significantly impact his client relationships and his ability to practice law, it is hard to see how he could repair those relationships without an order clearing his name. To the extent he seems to wish to avoid the inherent publicity of a lawsuit and possibly bring about those harms in the first place, the public's substantial interest in open judicial proceedings outweighs his interest in a closed-door lawsuit. "If Plaintiff wishes to pursue monetary damages against Defendant, he must be willing to do so publicly."

{Perhaps one of the better arguments to allow Plaintiff to proceed pseudonymously is that, assuming publication of the defamatory statement was only to his ex-spouse, then this matter could perhaps be resolved without increasing the damages from his defamation claim to include all parties who may learn of this lawsuit, and even a pseudonymous court order clearing Doe's name would likely be sufficient to satisfy those few individuals with personal knowledge that the order refers to him. But if that were the case and the defamatory publication was limited to his ex-spouse, and Plaintiff seeks to limit damages in this way, the court questions whether Plaintiff can also in good faith claim this matter exceeds the jurisdictional threshold of $75,000 for diversity jurisdiction. Reading his complaint broadly to include publication to many more parties than just his ex-spouse, the court is satisfied for the moment that he in good faith seeks more than $75,000, but notes the possible issue here.}