Fifth Circuit on Pseudonymity of Libel Defendant (Who Claims She Was Sexually Assaulted)

From Doe v. Roe, decided today by Fifth Circuit Judges Jennifer Walker Elrod, Carolyn Dineen King, and Carl Stewart:

After receiving notice of Jane Roe's impending California lawsuit involving allegations of sexual assault and sexual harassment, John Doe sued Roe in the Southern District of Mississippi, alleging that Roe was attempting to extort and defame him. Roe moved to proceed pseudonymously in the Mississippi lawsuit. The district court denied her permission to do so. Roe appeals that decision, raising several concerns with the district court's analysis. Because we agree with some of Roe's arguments, we vacate and remand for the district court to reconsider whether Roe should be allowed to proceed pseudonymously….

Whenever a party seeks pseudonymity, courts must determine whether "the normal practice of disclosing the parties' identities yields to a policy of protecting privacy in a very private matter." … The district court concluded that Roe was not entitled to pseudonymity … [in part because of] Roe's status as a defendant and waiver…. [But] Roe's defendant status is entitled to no weight in determining the appropriateness of pseudonymity…. A defendant is no less deserving of pseudonymity than a plaintiff simply by virtue of her being haled into court first….

Roe argues that allegations of sexual assault involve matters of the utmost intimacy [and can thus justify pseudonymity]. We agree. There is no doubt that requiring alleged rape and sexual assault victims to proceed "under their real identities would require them to disclose information of the utmost intimacy." It is no surprise, then, that numerous courts have allowed alleged victims of sexual misconduct to proceed under a pseudonym, "including when they are defendants being sued for libel and related torts."

Relatedly, Roe argues that she took affirmative steps to maintain her anonymity, that her identity is not public, and that she has consistently demonstrated a strong desire for confidentiality. She raises these points because the district court found that her privacy interest … was "weakened" because the "cat" was already "out of the bag" with respect to her identity. In so finding, the district court relied on the great detail with which Roe pleaded her California complaint, Doe's public filing of an amended complaint in this case with Roe's real name, Doe's presentation of Roe's real name in open court in this case, and Roe's inadvertent filing of documents with her name in the California case.

We agree with Roe. To start, we are not persuaded that the proverbial cat is out of the bag here. True, publicly available information cannot be obscured by courts. However, that internet sleuths might speculate that Roe is a particular person because her California complaint "lines up with [her] public profile" is not the same as a public broadcasting of Roe's certain identity. As to the fact that Roe's name was a matter of public record for short periods, that was either because of Doe's actions (which Roe objected to), or Roe's inadvertent disclosures which counsel corrected and constituted no waiver (which we address below)….

Last, Roe argues that she did not waive her right to proceed anonymously. Again, we agree. Roe never waived her ability to request pseudonymity because her conduct does not constitute an "intentional relinquishment" of that position. Roe's opposition to Doe's motion to proceed pseudonymously waived nothing because Roe's position was that she should be allowed to proceed pseudonymously while he should not be. And any confusion about Roe's position based on the precise language in her opposition brief was clarified by her own subsequent motions seeking to seal or redact Doe's amended complaint (which used Roe's real name) and to proceed pseudonymously.

Further, Doe's use of Roe's real name in open court did not constitute waiver on Roe's behalf because, at the time, Doe had already publicly named Roe in his amended complaint, Roe had a pending motion seeking to seal or redact that amended complaint naming her, and Roe objected to the use of her name at the hearing (even if not as fast as a prudent attorney likely should have). Finally, we are not convinced that Roe's inadvertent disclosures of her real name in the California case and on this appeal constitute waiver. The disclosures were unintentional, were made in portions of larger filings, and Roe took steps to correct the errors once becoming aware of them, resulting in the sealing and refiling of the documents. These facts do not demonstrate that Roe intentionally relinquished her request to proceed pseudonymously….

In light of the clarifications provided in this opinion, we find that it is appropriate to allow the district court to reconsider whether Roe should be permitted to proceed under a pseudonym in this case. {We acknowledge Doe's argument that allowing Roe to proceed under a pseudonym would be prejudicial to him. We think that argument is best left for the district court to address in the first instance on remand.}

Daniel Altaras (Wigdor) represents Roe.