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10 May 2006 |
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Help for Adult Victims Of Child Abuse. A non-profit making organisation based in the UK dedicated to provide help, support and information to any adult who is suffering from past childhood abuse. |
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Plaintiff Anonymity: Filing Civil Suits Under a
Pseudonym
By Karen Crist
Survivors who are considering suing the
perpetrators of their abuse have many difficult issues to face. One of them is
whether they are willing to identify themselves as survivors in a public court
document. Because of the upsurge in civil cases on behalf of crime victims,
particularly victims of childhood sexual abuse, sexual assault, and hate crimes,
an increasing number of cases are being filed under pseudonyms -- such as Jane
Roe or John Doe. This practice, however, directly confronts two long-standing
judicial principles -- the right of an accused to know his or her accuser and
the
right of public access to court documents and proceedings.
The recent trend in federal and state trial
courts is toward accepting a large number of "Doe" cases, but many
tribunals seem to be approving the concept of plaintiff anonymity without
providing any explanation for why they are doing so. The Supreme Court of the
United States has implicitly condoned anonymous plaintiffs although it has never
decided the issue of
whether a plaintiff has a right to file a case under a pseudonym.
There are few clear rules to follow, with each
court using its own discretion in determining when anonymity is warranted, thus
it may be impossible to know in advance whether one's identity can be completely
sealed from public scrutiny. For any lawyer considering filing a case under a
pseudonym, there are two aspects: when is it appropriate and how can it be
accomplished. Precedent on both issues is meager.
In determining whether to allow a plaintiff to proceed under a pseudonym, most courts employ a balancing test to evaluate the competing interests.
The Balancing Test
The balancing test was first articulated in Doe v. Stegall, 653 F.2d 180, 186
(5th Cir. 1981), a case in which plaintiffs challenged prayer and bible readings
in the Mississippi public schools. In that case the court stated that, in making
a decision as to whether an anonymous filing is appropriate, a court should
weigh the public's and the defendant's interests in full disclosure against the
arguments for shielding a plaintiff's identity.
As the dissent in the Stegall case pointed out, the balancing test is a case-by-case consideration with few precise guidelines: "Nothing objective is offered, no hard and fast formula." Id. at 188 (Gee, J., dissenting). Even though there is no "hard and fast formula" advance understanding of the competing policy interests can provide some helpful signposts.
Policy Considerations -- Full Disclosure
For many years there has been a presumption of judicial openness and an
acknowledgment that public scrutiny of the judicial process is inherent in the
First Amendment. "[A] trial is a public event. What transpires in the court
room is public property . . . there is no special perquisite of the judiciary
which enables it, as distinguished from other institutes of
democratic government, to suppress, edit, or censor events which transpire in
proceedings before it." Craig v. Harney, 331 U.S. 367, 374 (1947). The
expectation then is that courts are public places and people who avail
themselves of the courts should expect to do so publicly. Moreover, our concept
of fairness suggests that if a defendant's name is made public, the
plaintiff's should be as well.
In addition to the public's interest in openness,
the defendant also has a strong interest in knowing the plaintiffs identity. In
most cases, a defendant has a right to know who is suing him or her. A defendant
must be able to fully use the discovery process, direct a defense, assert
counterclaims, and evaluate whether the case has been heard before. These
all require knowledge of the plaintiffs identity. Furthermore, the court must
satisfy itself that a justifiable issue exists and, in some cases, that there is
complete diversity of citizenship between plaintiff and defendant. These
interests may require that the plaintiff's true name be part of the court's
record but not necessarily part of the public record. In order to
tip the scales away from these important interests in disclosure and in favor of
plaintiff anonymity, there must be compelling, countervailing reasons for
protecting the identity of the plaintiff.
Policy Considerations -- Circumstances That
Warrant Anonymity
A threat of physical harm almost always warrants anonymity. For example, in Doe
v. Lally, 467 F. Supp. 1339 (D. Md. 1979), the plaintiff brought suit under a
pseudonym after he was raped in prison. The court recognized that
the stigma attached to rape victims in prison made plaintiff "an easy
mark" and put him at risk for further rapes and held that the circumstances
warranted anonymity. In Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981), where
plaintiffs challenged prayer and bible reading in the Mississippi public
schools, they filed anonymously because they were afraid of harassment and
violence if their names became public information. Plaintiffs buttressed their
claim with documents that demonstrated the hostility in the community to them
and their lawsuit. The court of appeals in Stegall noted that plaintiffs
"made revelations about their personal beliefs and practices that are shown
to have invited an opprobrium analogous to the infamy associated with criminal behaviour
. . ." The court further noted that "[t]he threat of hostile
public reaction to a lawsuit, standing alone, will only with great rarity
warrant public anonymity. But the threats of violence generated by this case, in
conjunction with the other factors weighing in favor of maintaining the Does'
anonymity, tip the balance against the customary practice of judicial
openness."
The threatened harm need not be physical. Courts
are receptive to Doe filings when the threatened harm is social or economic. For
example, in one case, plaintiffs filed a Fair Labor Standards Act case under
fictitious names and moved for a protective order to shield themselves from any
reprisals from their employers. The court allowed the case to proceed
anonymously and issued the protective order.
Courts routinely allow actions to be filed under
fictitious names where matters of utmost intimacy are involved. When a plaintiff
must divulge very personal information to make her or his claim, plaintiff's
right to privacy may warrant anonymity. The right to privacy, guaranteed by the
penumbras in the Bill of Rights, often outweighs the policy of full disclosure
particularly when the plaintiff discloses personal information about sexuality,
sexual conduct and family relations, homosexuality, Transexuality, pregnancy,
childbearing, abortion, and contraceptives. All of these areas are widely
acknowledged to be matters of utmost intimacy and most courts will permit Doe
filings with no further questions asked. Courts also have found compelling
privacy interests in non-sexual contexts, including cases involving religious
beliefs, mental illness, and abandoned or illegitimate children. However, when
intimate personal details have already been divulged publicly in other contexts,
the courts will generally find that privacy rights have been waived and the
presumption of judicial
openness should control.
Courts recognize that a Doe filing is appropriate when disclosure of the plaintiff's name "substantially and certainly" would cause the exact harm that plaintiff seeks to avoid by bringing suit. For example, in one case challenging on privacy grounds New York State's requirement that doctors submit the names and address of patients for whom schedule II drugs (narcotics and other controlled substances) are prescribed, the patients filed under pseudonyms precisely because disclosure of their names would violate patient confidentiality and privacy.
Some courts permit plaintiffs to file under pseudonyms where plaintiffs challenge government activity or admit that they engaged in criminal behaviour and would face criminal prosecution if their identities became known.
Not all arguments for anonymity have been
successful. In one case involving a man accused of securities fraud and
manipulation and in another where a doctor challenged the constitutionality of a
Montana abortion statute, the courts found that professional embarrassment or
the threat of public hostility were insufficient to overcome the presumption of
openness.
Recently, the Eleventh Circuit held that a plaintiff bringing an employment
claim related to his alcoholism could not use a Doe filing to avoid
embarrassment or the social stigma attached to the disease.
While there is no absolute right to anonymously seek redress for grievances in a court of law, anonymity is permitted where it is justified to protect the plaintiff from threatened harm or from public disclosure of intimate and personal matters. Certainly it should be justified in cases involving plaintiffs who are victims of crime.
Procedure
Even in a case where anonymity is clearly warranted, there are few clear rules
on the procedure to follow in filing the case. The practice of filing under
pseudonyms is not specifically sanctioned by the federal rules of civil
procedure. State rules vary. Federal Rule 10(a) provides that "[i]n the
complaint the title of the action shall include the names of all the
parties."
A strict judicial construction of Rule 10(a) will
probably lead to dismissal of the complaint on the grounds that plaintiff has
not properly commenced an action. For example, in Roe v. State of New York, 49
F.R.D 279 (S.D.N.Y. 1970), the court held that "if a complaint does not
identify any plaintiff in the title or otherwise, then its filing is ineffective
to commence an
action." The court held to this strict mechanical construction despite
plaintiffs presentation of affidavits to defendants in which they revealed their
true names.
Fortunately, strict judicial construction of FRCP 10(a) is the exception rather than the rule. Most courts liberally interpret Rule 10(a) and recognize that Doe plaintiffs are specific aggrieved individuals and real "parties in interest" with the standing to bring their claims before the court.
If the attorney believes there is a risk of
dismissal under Rule 10(a), she or he can preclude that from happening by filing
the complaint under the plaintiff's true name and at the same time requesting a
protective order to change plaintiff's name in later proceedings to a fictitious
one. When a protective order to shield a plaintiff's identity is sought, the
court will
hear argument on the merits of the claim for anonymity and issue an order. Just
as the tendency of a court toward a strict or liberal judicial construction of
Rule 10(a) will determine whether plaintiff will be permitted a fictitious
filing, the procedure for obtaining anonymity will, likewise, depend upon the
practices of that particular court.
Some courts permit a plaintiff to file under a
pseudonym but require verification of the complaint in his or her true name. In
some courts, a plaintiff can file a case under a fictitious name along with a
motion for leave (permission) to file the case anonymously. Other courts allow a
plaintiff to file under a pseudonym and give the plaintiff's true name in an
attached letter. In some cases, plaintiff's counsel will be permitted to file a
letter under seal containing plaintiff's name and address,
plaintiff's confirmation that he or she is a real person, plaintiff's wish to
proceed an anonymously, and the reasons for filing under a pseudonym. This
letter will not become part of the court records.
In our Ohio practice representing victims of
rape, incest, and sexual assault, we routinely file our cases using pseudonyms.
The courts in which we practice do not object to Doe filings and do not require
any special procedure for concealing a plaintiff's identity. As a matter of
course, we informally notify defendants of the plaintiff's identity (although we
often
enter into a stipulation of confidentiality beforehand).
In any jurisdiction where the attorney is
unfamiliar with the court's views on Doe filings, it is always wise to check the
local rules of court. Since it is not likely that the procedures for anonymous
filings will be set forth, the next step is to call the clerk's office to ask if
there is an informal procedure and, if there is not, to ask the advice of the
court as
to how to proceed. The options discussed here should give a careful practitioner
important tools to protect the safety and privacy of crime victims.
Karen Crist, Esq. is an attorney who represents
victims of sexual violence
and works with the law firm Schulman, Schulman & Meros in Cleveland, Ohio.