No Pseudonymity for Plaintiff Alleging Disability Discrimination

Start at Doe v. N.M. Bd. of Bar ExaminersThe Magistrate Judge Steven C. Yarbrough, D.N.M., ruled today in favor.):

… Plaintiff filed her complaint under the pseudonym “Jane Doe.” Federal Rules of Civil Procedure do not allow for anonymous proceeding. Instead, Federal Rules of Civil Procedure require that the complaint title “name all parties” and that Rule 17(a), “…”[a]An action should be brought in the name and place of the actual party. The Tenth Circuit recognizes that there might be instances where “exceptional situations” justify allowing a party anonymously to continue. Femedeer[1] v. Haun (10th Cir. 2000). Accordingly, the Court required Plaintiff to show cause why her full name should not be fully disclosed in public filings with the court….

Access to legal proceedings is of “important importance” for the public. It is also difficult to use the legal principles of collateral estoppel and res judicata without knowing who the party is. “Ordinarily, parties using the courts need to be open to the possibility of being subjected for public scrutiny.” “A plaintiff should not proceed with a pseudonym, except when anonymity and the public interest outweigh the benefits of openness. Lawsuits should be open to the public. An exception to this rule is where there are extremely sensitive or personal issues, real danger of harm to physical health, or cases in which the plaintiff would suffer injury as a consequence of disclosing their identity. There is a risk that the plaintiff will be embarrassed.

Plaintiff claims that the case is sensitive because she alleges discrimination due to her disability. In her anonymous petition, Plaintiff states that her medical information will be part of the case. Concerned that her name being attached to this case would trigger psychological and physical stressors, and allow the public (including clients or future employers) to access her medical records, she is afraid. Her privacy rights under HIPPA and ADA are cited by her.

The public interest in open court proceedings does not outweigh plaintiff’s need for anonymity. Almost every case involving disability discrimination and the ADA requires disclosure about the nature of a plaintiff’s disability. This is an ordinary circumstance and does not warrant anonymity. Doe v. Regents of Univ. New Mexico (D.N.M. Mar. Mar. Plaintiff’s speculations about her future employment do not allow for anonymity.

It is important to clarify that the Court will not order Plaintiff to make public any of her medical records. In her complaints, Plaintiff only generally describes her alleged medical conditions … (mentioning permanent pulmonary disabilities, multiple permanent and terminal disabilities, visual impairment, and chronic pain). Plaintiff can request a protective order to protect specific medical records and documents. The Court will consider such requests as they progress. However, a disability-discrimination plaintiff’s concern that the general nature of her alleged disability will be disclosed as part of her lawsuit does not override the strong presumption in favor of open proceedings and, therefore, does not serve as a basis to proceed anonymously.

Similar reasons lead me to believe that plaintiffs will in Doe v. Gerken The Yale Law School’s new lawsuit). I will not likely be able continue to litigate under pseudonyms. However, I plan to write more soon. Despite this, there are split decisions regarding these topics. Here’s a sample from my article. Pseudonymous Litigation: The Law.

Communicable diseases[1]

There is a split in the courts about whether or not pseudonymity can be permitted. If the party names are revealed, it could indicate that they have been infected.[2] herpes,[3]or any other transmissible (generally sexually transmitted), diseases.[4]

Mental illnessDisorder

Sometimes, courts find that pseudonymity can be justified in order to keep a party from revealing their mental disorder or illness.[5]Sometimes it’s not.[6]

Disablement or nonmental illness, not communicable

Courts don’t allow pseudonymity for nonmental or noncommunicable diseases and disabilities to be concealed.[7]However, at least one court disagrees.[8]

Addiction or drug abuse

The courts don’t allow the use of pseudonymity to hide a person’s drug addiction or history.[9]Addiction or abuse of alcohol[10]One case is an example.

[W]Doe has very real fears about her reputation and the possibility of being rescinded if there is backlash. However, these fears mirror those expressed by other plaintiffs who claimed they were discriminated because of past substance abuse histories. It’s clear that numerous similarly situated plaintiffs publicly identified themselves during their respective litigations.[11]

However, at least one instance has permitted pseudonymity.[12]

[1] Doe, a deer, a feme deer. Femedeer was actually a pseudonym that the plaintiff chose in this case.

[2]Roe, City of Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. Wis. 1999); W.G.A. Wis. 1999); W.G.A. 616 (E.D. Mo. 1999); Doe v. Brennan, No. 19-5885. ECF Nos. 17-18 (E.D. Pa. Apr. 26, 2020); Doe V. Russ (No. 1:20-CV-07769-AT (S.D.N.Y. Oct. 29, 2020), Granting Motion to Proceed under Pseudonym id. (S.D.N.Y. Oct. 14, 2020. Doe V. Tris Comprehensive Mental Health, Inc., 290 N.J. Super. 677, 682–83 (Law Div. 1996). Pseudonymity not allowed: Mateer v. Ross, Suchoff, Egert, Hankin, Maidenbaum & Mazel, P.C., No. 96 CIV. 1756 (LAP), 1997 WL 171011, *6 (S.D.N.Y. Apr. Doe v. Bell Atlantic Bus. Sys. Servs., Inc., 162 F.R.D. 418, 420 (D. Mass. 1995)

[3]Allowance for pseudoonymity in Order, Doe and Cochran (No. FSTCV155014849S entry no. 113.00 (Sept. 28, 2015); Doe v. Weinzweig, 40 N.E.3d 351, 363 (Ill. App. Ct. 2015 (noting that circuit had permitted pseudonymity and concluding, however that the question was not properly before court on appeal). Unwitting Victim, v. C.S., 47 P.3d 392, 401 (Kan. 2002); Anonymous v. Lerner, 124 A.D.3d 487, 488 (2015); Anonymous v. Simon, No. 13 CIV. 2927 RWS, 2014 WL 819122, *2 (S.D.N.Y. Mar. 3, 2014).

[4] Pseudonymity allowed: EW v. N.Y. Blood Ctr. 108, 112 (E.D.N.Y. 2003) (hepatitis B); Doe v. O’Neill, 1987 WL 859818, at *1 (R.I. Super. Jan. 6, 1987 (chlamydia, gonorrhea). Geico Gen. Insurance. Co. v. M.O., No. 21-2164, DDC-ADM 2021 WL 44776783 (D. Kan. Sept. 30 2021). (HPV).

[5]Doe V. State Bar of Cal. 3:20-cv-06442-LB (N.D. Cal. Sept. 21, 2020), Granting Motion, id. (N.D. Cal. September 14, 2020 [compulsive pulling out of hair]); Doe v. Tonti Mgmt. Co., No. 2:20-cv-02466-LMA-MBN (E.D. La. Sept. 11, 2020), Granting Motion, id. (E.D. La. Sept. 9, 2020) (“major depressive disorder, anxiety, and PTSD caused by a sexual assault”); Doe v. Provident Life & Accident Insurance Co., 176 F.R.D. 464, 468–69 (E.D. Pa. 1997) (“general anxiety disorder, dysthymic condition, adult attention disorder, personality disorder and immature incompetent, passive aggressiveness and occupational stress with prior job situation”); Doe V. Standard Ins. Co., No. 1:15-CV-00105-GZS, 2015 WL 5778566, *2 (D. Me. Oct. 2, 2015); Doe v. Hartford Life & Accident Insurance Co., 237 F.R.D. 545, 550 (D.N.J. (2006) (“severe bipolar disorder”); Doe v. Unitedhealthcare Insurance Company. 3:20-cv-06574-EMC (N.D. Cal. Sept. 24, 2020), It is possible to grant Plaintiff’s ex parte motion for administrative relief to proceed under pseudonym id.Doe, No. 18 September 2020 2:21-cv-00071-LGW-BWC, at 5 (S.D. Ga. July 30, 2021. (“PTSD, Major depressive Disorder and suicidal ideastion or Suicidal behavior disorder”).

[6] Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) (“obsessive-compulsive disorder,” which the court concluded was not sufficiently stigmatized); Doe v. UNUM Life Ins. Co. of Am. 164 F. Supp. 3d 1140 (N.D. Cal. Doe Ex rel.Doe v. Harris (No. 14-cv-00802, 2014 WL 4207599, at *2 (W.D. La. Aug. 25, 2014 (disorder which “rendered [plaintiff]”permanently childlike, vulnerable”); Doe, Indiana Black Expo, Inc., 923 F. Supp. 137, 140 (S.D. Ind.1996), past psychiatric hospitalization; Doe v. Indiv. Indiana State Bd. Members of Indiana State Bd. 1:09-cv-00842 (S.D. Ind. August 8, 2009 (anxiety disorder, PTSD) – MacInnis against Cigna Grp. Ins. Co. Of Am., 379 F. Supp. 2d 89, 90 (D. Mass. 2005) (“depressive/‌‌anxiety disorder”); Doe v. Univ. No. 5:15-CV-2309, 2016 WL 4520512, *4 (N.D. Ohio Feb. 3, 2016) (“ADHD, anxiety, depression”); G.E.G. v. Shinseki, No. 1:10–cv–1124, 2012 WL 381589, at *2 n.1 (W.D. Mich. Feb. 6, 2012) (“Attention Deficit Disorder/‌‌unspecified learning disorder” and “anxiety disorder”); Doe v. Zuchowski, No. 221CV01519APGEJY, 2021 WL 4066667, at *2 (D. Nev. Sept. 7, 2021) (“stress-induced Tinnitus (non-stop ringing in the ears) for ten (10) months now as well as a total collapse of his mental health induced by the condition”); Doe v. Univ. no. SA-19-CV-957-XR, 2019 WL 6727875, *3 (W.D. Tex. Dec. 10, 2019) (ADHD); Wescott v. Middlesex Hosp., No. MMXCV186020250, 2018 WL 2292916, *3 (Conn. Super. Ct. May 1, 2018, (bipolar disorder, schizoaffective disorders). cf. Alexandra H. v. Oxford Health Ins., Inc., No. 11-cv-23948, 2012 WL 13194938, *1–*3 (S.D. Fla. Feb. 10, 2012) (rejecting pseudonymity when plaintiff was suffering from “anorexia nervosa, obsessive compulsive disorder, severe depression and suicidal ideation,” though noting that she “presents a more compelling case for allowing anonymity with her untimely Reply memorandum,” albeit a case that the court rejects on procedural grounds: “[t]I grant her motion . . It could be used to punish Plaintiff for unjustified briefing. [Defendant]”It is prohibited to reply to any new legal or factual assertions.”

[7] Anonymous v. Medco Health Sols., Inc., 588 F. App’x 34 (2d Cir. 2014 (Plaintiff asserts that the ‘further disclosure’ of his personal information is required. [Parkinson’s Disease]This litigation would only increase the damage done to the public by the Defendants[.]He says that this could ‘adversely effect his patient base’ because he relies heavily upon referrals from others physicians. However, this claim is ambiguous and unfounded. Even if the name of plaintiff was listed in the case title, other physicians would still be able understand his illness and not have to worry about his ability to diagnose or treat patients. Plaintiff’s claims of harm are speculative.”); Endangered v. Louisville/‌‌Jefferson County Metro Government Dept. of Inspections, 3:06-cv-250, 2007 WL 509695, at *1–2 (W.D. Ky. Feb. 12, 2007) (mobility-impairing disabilities); Parlante v. Am. River Coll. 2:20-CV-02268-KJM-JDP (PS), 2021 WL 4123807, *1 (E.D. Cal. Cal.[ness],” Motion, 1 (Nov. 13 2020).

[8]Heather K. by Anita K. in v. City of Mallard. Iowa, 887 F.Supp. 1249, 1256 – N.D. Iowa 1995 (“severe respiratory or cardiac conditions”)

[9] D.E. v. John Doe, 834 F.3d 723, 728–29 (6th Cir. 2016); Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137 (S.D. Ind. 1996); Doe v. Heitler, 26 P.3d 539 (Colo. Ct. App. 2001); K.W. v. Holtzapple, 299 F.R.D. 438, 439–40, 442 (M.D. Pa. 2014).

[10]Doe v. Frank 951 F.2d 321, 324 (11th Cir. 1992).

[11]Doe v. Main Line Hospitals, Inc., no. 2:20-cv-02637-KSM, at 10 (E.D. Pa. Sept. 1, 2020).

[12]Smith v. United States Off. Pers. Mgmt., No. Mgmt., No. Pa. Jan. 21, 2014 (drug addiction).