Second Circuit Adopts Standard for Filing Lawsuits Anonymously
The United States has a long-standing commitment to openness in all branches of government. Among these principles is the presumption that judicial proceedings should be open for observation. Despite this presumption, there is no absolute right of access to all judicial proceedings or judicial documents, and plaintiffs, defendants, and third parties (such as the reporters) occasionally disagree about what kinds of information should be available to the public.
Sometimes there is a question whether plaintiffs in civil lawsuits must identify themselves by their real names or may pursue their claims anonymously, under pseudonyms. In rare cases, courts may even allow a plaintiff’s case to proceed “under seal”—with some or all documents filed with the court kept from public inspection. Besides the obvious challenge for news organizations to accurately report the news when basic information about newsworthy cases is not available, anonymity in judicial proceedings compromises openness and may, in some circumstances, cause harm to defendants.
The U.S. Court of Appeals for the Second Circuit recently grappled with this issue and, in so doing, outlined standards for trial court to consider when asked to allow a case to proceed with the plaintiff’s name sealed. A copy of the decision in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008) is available here.
In Sealed Plaintiff, the Second Circuit reviewed a New York district court’s dismissal of a case in which the pro se plaintiff, who alleged physical and sexual assault in violation of her civil and constitutional rights, failed to identify herself by name in her complaint, as ordered by the district court and failed to correct certain other deficiencies in her complaint. The lawsuit was earlier sealed by the district court and the Second Circuit, but portions of the record were unsealed for the limited purpose of the Second Circuit’s opinion. Ultimately, the Second Circuit vacated and remanded the matter back to the district court for a decision consistent with the standards, set in the Second Circuit’s opinion, for evaluating when plaintiffs may proceed under pseudonym.
The Second Circuit started its analysis by recognizing that the Rule 10 of the Federal Rules of Civil Procedure require the title of a complaint filed with the court to name all the parties. According to the court,
This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly. Certainly, ‘[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.’
The Second Circuit also noted, however, that courts have “carved out” a “limited” number of exceptions to the general rule that parties to an action must be identified by name. For example, although not cited by the court, in the famous case Roe v. Wade, 410 U.S. 113 (1973), which recognizes that the constitutional right to privacy includes a woman’s right to choose whether or not to terminate a pregnancy, the plaintiff’s name, Jane Roe, was a pseudonym.
According to the Second Circuit, “when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.” The balancing includes consideration of a number of factors:
- whether the case involves matters of a “highly sensitive and [of a] personal nature”
- whether identification risks retaliatory harm to the plaintiff or to "innocent non-parties”
- whether the injury litigated against would be incurred as a result of disclosure
- whether the plaintiff is particularly vulnerable to harm from disclosure
- whether the suit is challenging the actions of the government or that of private parties
- whether the defendant is prejudiced by allowing the plaintiff to proceed 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
- whether the plaintiff’s identity has thus far been kept confidential
- whether the public’s interest in the litigation is furthered by requiring disclosure
- whether "because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities"
- whether there are alternative mechanisms for protecting the confidentiality of the plaintiff.
Reviewing the district court’s decision, the Second Circuit found that the lower court thought it was “strictly bound” by the requirement of Federal Rule of Civil Procedure that requires a complaint to include the names of “all the parties.' Thus, in the view of the Second Circuit, the district court “did not balance the plaintiff’s interest in proceeding anonymously against the interests of defendants and the public.” The Second Circuit remanded the case back to the trial court for application of the balancing test, expressing no view as to how those interests should be balanced.
The Sealed Plaintiff case is just one recent example of a claim allowed to be filed anonymously in court. For example, this article from the New York Law Journal discusses and provides a link to a New York state court opinion released earlier this year in which a judge agreed to allow a plaintiff to remain anonymous in a lawsuit related her appearance in a “sexually explicit” (according to the court) advertisement that was widely viewed on YouTube. In so doing, the court balanced the privacy interests of the plaintiff against the presumption favoring openness of trials and the risk of prejudice to the opposing party, ultimately finding that the plaintiff’s privacy interest justified allowing her to use a pseudonym.
In Sealed Plaintiff, the Second Circuit cited a number of authorities from other federal courts of appeals regarding their approaches to balancing the interests of plaintiffs versus the interests of the defendants and the public. For example, the Sealed Plaintiff opinion cited the Fourth Circuit case James v. Jacobson, 6 F.3d 233 (4th 1993). The James case involved a medical malpractice lawsuit (and other claims) against a fertility doctor who treated the plaintiffs and very likely was the biological father of the plaintiffs’ two children. The plaintiffs wished to remain anonymous in order to protect their children from learning and being harmed by the fact that the man they thought was their father was, in fact, not. The Fourth Circuit vacated and remanded the district court’s ruling that the plaintiffs could not testify under pseudonym at trial. The Fourth Circuit framed the standard for evaluating requests for anonymity in this way:
As is ordinarily the case where discretion is committed to trial courts, some guidelines for its exercise in the form of factors that should be considered by courts considering anonymity requests have been judicially recognized. They are not many, for the question happily is one that is not too often raised. But some can be gleaned from the relatively few cases – both at trial and appellate levels – that have wrestled with the problem. Among them are the following that have relevance to this case: whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
The Fourth Circuit was mindful of the lower court’s concern for prejudice to the defendant if the plaintiffs were allowed to testify anonymously. For example, the trial court had worried that the defendant would not be able to impeach or question the plaintiffs’ credibility at trial if he was unable to explore details about their lives. But, the plaintiffs had offered to make certain accommodations for those concerns, including allowing details of their lives—other than their names—to be explored on the witness stand.
As the Second Circuit did in Sealed Plaintiff, the Fourth Circuit in James left application of the balancing test to the trial court.
