Below are excerpts of my draft article. Pseudonymous Litigation: The LawPlease send your feedback. This section focuses on the courts’ handling of claims that pseudonymity must be maintained to avoid reputational damage or economic retaliation. The preceding section of this article focuses on the argument that pseudonymity must be maintained to safeguard information considered private such as the sexual orientation, gender identity, behavior, mental illnesses, or physical health. The cost of pseudonymity to both the public and adversaries as well as to the legal process was discussed in earlier sections.
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When we get past privacy and move on to reputational harm—and the economic and professional harm that can stem from reputational harm—the dominant answer is no pseudonymity, except in one important class of cases. First, I’ll outline some of the most serious reputational risks and summarize current court decisions.
[1.]Risques of reputational damage
[a.]Perhaps incorrectly, defendants were accused of serious misconduct
Many defendants could be ruined simply by being publicly accused of certain offenses (rape, sexual harassment, embezzlement, fraud, malpractice, and the like)—or can be materially harmed even by being sued for more minor matters, such as in landlords’ unlawful detainer actions against tenants. [1]Sometimes, even though they may be innocent they will agree to settle in order to prevent a lawsuit from being filed.
[b.]People are afraid of being branded litigious.
Ex-employers might be sued by ex-plaintiffs. This could lead to potential employers being turned off.[2]
Antidiscrimination laws generally forbid employers from retaliating against people who had brought discrimination claims or engaged in whistleblowing, and “a subsequent employer may be held liable for retaliation against a current employee for engaging in protected activity at a past employer.”[3]However, this retaliation can only be made illegal if it is due to certain claims and not other claims. Because an employer can have so many reasons for rejecting a candidate employee, this type of retaliation is often very difficult to prove. As a result, many employers likely think that they won’t be caught if they refuse to hire litigious employees—and likely think that, if they hire and later dismiss a litigious employee, the risk of a future lawsuit by the employee is greater than the risk of a lawsuit for retaliatory refusal to hire.[4]
In other cases, it is possible to do the same. For example, tenants may be concerned that by suing their landlords, other landlords will decline to rent them.[5]
[c.]The nature of the claim makes plaintiffs afraid of hostility.
Some plaintiffs might think that their claims will appear legally or morally unjustified to the public—even if the claims are themselves legally valid—and could lead to public ridicule or shaming.[6]
[d.]Parties are afraid of disclosing disability and other conditions that could result in future discrimination
Plaintiffs who file lawsuits revealing their mental illness or disabilities might be concerned that the information could lead to discrimination from future clients, employers and patients. This is why pseudonymity requests in these cases may be more than just a privacy issue.[7]It can also serve to protect reputation and prevent retaliation.
[e.]Libel suitors worry about amplifying false statements
The fear that the lawsuit will only increase the libels is understandable for plaintiffs who are suing for libel.[8]Searching for the name of the plaintiff would bring up the lawsuit. People may find it and any other files, which could be used to repeat the libel and claim that the suit is indeed a lie. The lawsuit may also be the subject of blog posts or newspaper articles, particularly if it is well-known.
Maybe the libel cases will finally vindicate the plaintiffs. They may be able to point to the judgments as proof that the accusations they were pursuing were false. Even if libel defendants are strong, this might not be possible. A court may dismiss the lawsuit without reaching a conclusion about truth. This could happen if the court finds that statements are privileged or said with no “actual malice” without concluding whether the claims were true. The possibility of litigation costs putting pressure on plaintiffs to agree to a settlement might exist. It is possible for the defendant to not make it in court, and plaintiffs could be forced into settling. There won’t be any final verdict in years.[9]
[f.]Others fear for amplifying false accusations
The same concern would apply for other lawsuits that aren’t framed as libel claims but are still based on false allegations or their consequences—lawsuits over wrongful expulsion from universities, wrongful firings, wrongful discipline of a professional,[10]The like.
[2.]These are the risks courts must address
These serious dangers aside, most courts refuse to permit pseudonymity in order to avoid “annoyance or criticism” that could accompany any litigation.[11]Include “inability to secure employment in the future.”[12] “economic harm,”[13]”Economic or professional concerns”[14] “reputational harm,”[15]Or “blacklisting.”[16]This is true for both plaintiffs and defendants.[17]Both defendants.[18]
This may be due to the widespread reputational risk involved in civil litigation, and even greater in criminal litigation. The courts often state that they allow parties to use pseudonyms when it is necessary for non-disclosure of their identity. . . “To protect someone from harassment, injury or ridicule.”[19] But there is nothing “unusual” about embarrassment or risk of harassment, reputational injury, or ridicule stemming from people believing the allegations in a case, or being wary about a person because of those allegations.[20]Our civil system could become, for better or worse, one where pseudonymity would be the norm if reputational damage was sufficient to justify pseudonymity.
However, even here the courts have their differences. For example, in a recent case involving sexual assault, the judge allowed the defendant to proceed anonymously, reasoning:
[T]He court determines that there is a chance of [plaintiff]The reputational risk is substantial. He is both a New York-based partner and adjunct professor at a well-respected law firm.[21]
An allegation that a male partner was involved in sexual assault is likely to be devastating for him. The law firm’s partners may also have teaching responsibilities at the law school. Even if the defendant was convicted, it would still be disastrous. However, wouldn’t that be disastrous for the janitor?[22]
Likewise, in a lawsuit over an allegedly false credit report—basically, a narrow statutory quasi-libel claim—the court allowed plaintiff to proceed as a Doe, because “Publicly identifying Plaintiff risks impeding her future employment prospects by making the improperly disclosed information public knowledge.”[23]A few cases in which a person’s disability is discussed have also led to pseudonymization, based on the idea that it could cause “severe” career and economic consequences.[24]A few courts allow whistleblowers to use pseudonymity because it is possible that they might become known and be a threat to their professional reputation.[25]
[3.]A special case involving university students is the University Student Suit.
There is another large number of situations where pseudonymity has been requested frequently (though they are not always).[26]Students who claimed they were wrongfully punished for false allegations and botched investigations against universities have filed suit.[27]Students’ worries are primarily reputational. “Being accused of sexual assault, which is a serious allegation against which one would not wish to be publicly identified as such, is something that the student has raised.”[28]
All these cases do not explain why they differ from other cases of reputational risk. The exception is when some university cases indicate that young adults need extra protection than what the older ones get.[29]). Some individuals are protected with this invaluable protection while others do not. This is not because there are more judges who are open to pseudonymity, or because the judge finds their situation to be particularly sympathetic.
[1] Look! Hundtofte v. Encarnación, 330 P.3d 168 (Wash. 2014) (“Encarnación and Farías argued that even though the unlawful detainer action was meritless, they could not obtain sufficient rental housing after prospective landlords learned that they had an unlawful detainer action filed against them.”).
[2] However, you can see Strahilevitz, Supra Note 7, 1245. This suggests, although not in the context of employment, that “litigiousness-signaling effects are not an effective basis for granting pseudonymity parties. Although a party may prefer to keep his litigiousness secret, potential transaction partners of that party will want to assess the litigiousness before they enter into any relationship with him.”).
[3] Fredriksen v. Consol Energy Inc., No. 2:18-CV-00379-MJH, 2019 WL 2108099, *5 (W.D. Pa. May 14, 2019, Also see United States v. Air Indus. Corp., No. 812CV02188JVSRNB, 2016 WL 11515131, *2 (C.D. Cal. Oct. 24, 2016) (citing 31 U.S.C. § 3730(h) as the proper protection against retaliation for False Claims Act whistleblowers, and rejecting pseudonymity on those grounds); 29 U.S.C. § 215(a)(3) (ban on retaliation for having filed Fair Labor Standards Act claim).
[4]The anonymity of an informant is what courts consider the best protection against retaliation when reporting labor claims to the government. Employer pressures on employees can be difficult to spot and harder to fix. It is possible to discriminate against employees in the economic relationship between employer and employee. These actions can range from very obvious to subtle. . . . The shield of anonymity here is better than the sword of punishment. Wirtz v. Cont’l Fin. & Loan Co. of W. End, 326 F.2d 561, 563–64 (5th Cir. 1964).
[5] See, e.g., Yonathan A. Arbel & Roy Shapira, Theory of the Nudnik: What Can We Do To Stop Consumer Activism?, 73 Vand. L. Rev. 929, 968 (2020); Esme Caramello & Nora Mahlberg, The Survey of Alternative Approaches to Combating Tenant Blacklisting Based On Housing Court RecordsClearinghouse Rev. 2017. 1, https://www.lcbh.org/resources/combating-tenant-blacklisting-based-housing-court-records.
[6] Look! Ressler, #WorstPlaintiffEver, Supra Take note of 7.
[7] See supra Parts II.F.7–II.F.10.
[8] Look! Roe v. Does 1–11, No. 20-cv-3782-MKB-SJB 2020 WL 6152174 E.D.N.Y. October 14, 2020; Plaintiff’s Motion To Seal the True Name of Defendant. Doe v. Billington. 21STCV22207 (Cal. Super. Ct. Aug. 12, 2021); Doe v. Doe 1, No. 1:16-cv-07359 (N.D. Ill. Aug. 24, 2016). Doe v. Megless, 654 F.3d 404, 410 (3d Cir. 2011), adopts the viewpoint that “to whatever extent” the [allegedly libelous flyers over which plaintiff was suing]Doe has been publicly accused of being a child molester. Doe can sue publicly to get his story out in the public eye. Also see Doe v. Valencia Coll., No. 6:15-CV-1800-Orl-40DAB, 2015 WL 13739325, *3 (M.D. Fla. Nov. 2, 2015). However, libel lawsuits often just amplify the original accusation until a final judge in the plaintiff’s favour. Unidentified plaintiffs would prefer to be treated as though they were being litigated until they are finally found guilty or the opposing side agrees to retract their charges. Only then can the public see his name.
[9]Although the original libel may have been widely distributed, plaintiffs could feel that they don’t have anything to lose by filing suit. But libels and oral slanders are rarely seen or heard by large audiences, particularly if they’re not in Google-searchable media. They may be visible to a wider audience because of the lawsuit filed by the plaintiff.
[10]Doe v. Dep’t Of Army, No. 1:21-mc-00114-UNA (D.D.C. September 24, 2021 (allegations against a government physician); Doe. 21-mc-44, 2021 WL 3622425, at *2 (D.D.C. Apr. 28, 2021); Doe v. Lieberman, No. 1:20-cv-02148, at 5 (D.D.C. Aug. 5, 2020: (allegations to malpractice against a government physician).
[11] In re Seeled Case, 931 F.3d.92, 97 (D.C. Cir. 2019; Does I through XXIII v. Advanced Textile Corp. 214 F.3d 1058. 1068 (9th Cir. 2000).
[12]Doe v. Georgia-Pac., LLC, No. CV125607PSGJCFX, 2012 WL 13223668, *2 (C.D. Cal. Sept. 26, 2012); Also see Doe v. Princeton Univ. CV 20-4352 (BRM), 2020 WL 3962268, *3 (D.N.J. July 13, 2020. Doev. Rider Univ. CV 16-4882 (BRM), 2018 WL 3756950, *4 (D.N.J. Aug. 7, 2018).
[13]Doe, 654 F.3d 408 (408 3d Cir. 2011); Also see Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 70 (2003); S. Methodist Univ. Ass’n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979). (Risk of Employer Retaliation); No Mkt. Comp. Comp. 311, 313 (S.D.N.Y. 1983); A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 504 (App. Div. 1995); Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017).
[14] Nat’l Commodity & Barter Ass’n, Nat’l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989); Also see United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1249 n.10 (10th Cir. 2017); Doe v. Delta Airlines Inc., 672 F. App’x 48, 52 (2d Cir. 2016; Roe v. Skillz, Inc., 672 F. App.x 48, 52 (2d Cir. 2021; Doe v. United Services Life Insurance Co. 123 F.R.D. 437, 439 n.1 (S.D.N.Y. 1988).
[15]Doe, v. Bogan. CV 1:21-MC00073, 2021WL 3855686(D.D.C. June 8, 2021. (rejecting pseudonymity claimed based upon “[p]laintiff’s concerns that public association with the racial slur—even in the context of a defamation suit—could harm ‘his career as a law professor’ or be ’embarrassing to have presented to the community at large'”); Doe v. Kansas State Univ., No. 220CV02258HLTTJJ, 2021 WL 84170, *3 (D. Kan. Jan. 11, 2021); Raiser v. Brigham Young University, 127 F. App’x 409, 411 (10th Cir. 2005);
[16] Nyarko v. M&A Projects Restoration Inc., No. 18CV05194FBST, 2021 WL 4755602, *6 (E.D.N.Y. Sept. 13, 2021), Report and recommendation adoptées, No. 1:18–CV-05194–FB–ST, 2021WL4472618 (E.D.N.Y. Sept. 30, 2021); Agerbrink v. Model Serv. LLC, 14 Civ. 7841 (JPO) (JCF), 2016 WL 406385, at *9-10 (S.D.N.Y. Feb. 2, 2016); Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14-cv-5601, 2015 WL 7017431, *4 (S.D.N.Y. Nov. 12, 2015).
[17] See, e.g., P.D. & Assocs. v. Richardson, 64 Misc. 3d 763, 767 (N.Y. Sup. Ct. 2019, 767 (N.Y. Supp. 452207 v. CFA Inst., 42 F. Supp. 3d 804, 808 (E.D. Va. 2012), (lawsuit alleging botched examination cheating investigation); Doe, Main Line Hospitals, Inc., 2:20-cv-02637-KSM, at 10 (E.D. Pa. September 1, 2020 (lawsuit alleging inability to provide substance abuse treatment).[W]Doe has very real fears about her reputation and the possibility of being rescinded if there is backlash. These fears, however, are very similar to the ones of others who claim they were discriminated because of past substance abuse histories. It is also clear that many similarly situated plaintiffs have made public statements in their litigations.”);
[18] T.S.R. v. J.C., 671 A.2d 1068, 1074 (N.J. Super. App. Div. 1996); Doe. 1996).
[19]Advanced Textile Corp. v. I thru XXIII. 2000).
[20] Are I and XXIII the same? Because of the “extraordinary risk” of being retaliated against, it allowed pseudonymity. id.At 1071
Threats of termination and blacklisting, while these are common ways employers respond to employees who challenge their legal rights in a workplace setting, the effects of such retaliation on plaintiffs is extraordinary. As guest workers in Saipan [in the Northern Mariana Islands]Plaintiffs who lose their job may face deportation. Plaintiffs who are deported or blacklisted will have to pay the debts they incurred from contracts with recruiting agencies. They fear that they will accrue debts as they have contacts with Chinese citizens who are being threatened with deportation and arrest if they cannot pay their recruiting agency debts.
[21]Doe v. Doe (No. 20-CV-5329(KAM)(CLP), 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020).But, see! Stern v. Stern (66 N.J.340, 343 N.1 (1975), rejecting pseudonymity. In this case the husband was found guilty in adultery. “While we believe initials can be used to conceal the identity of litigants in cases where minor children are involved, and on other rare but legitimate occasions as well, we don’t approve of this practice. This is where anonymity could be applied to a well-known, successful member of the bar. As would have been the case in Stern.”).
[22]The pseudonymous proceeding of alleged sexual abusers in a few cases before the trial court is open to a limited number of other defendants. See, e.g., cases cited in notes 102, 104 & 105. However, you can seeDoe, No. FBTCV095024074S, 2009 WL 5322462, *1 (Conn. Super. Ct. Dec. 11, 2009. (rejecting pseudonymity in sexual assault case; Balerna, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017. (rejecting pseudonymity where the parties simply “wish to avoid embarrassment,/or economic damage in their respective professions and social communities due to having to continue using their real names.”
[23] Doe v. Innovative Enterprises, Inc., No. 4:20-cv-00107-RCY-LRL, at 4 (E.D. Va., Aug. 25, 2020. (allegedly false Credit Report). However, you can see Doe v. Law Offices of Robert A. Schuerger Co. CV1713105BRMDEA, 2018 WL 4258155, at *2 (D.N.J. September 6, 2018, (refusing pseudonymity for a comparable case).
[24]Doe V. Elson S. Floyd Coll. Med. Washington State Univ. 2:20 – CV-00145 -SMJ. 2021 WOL 4197366 Wash. Mar. 24, 2021); Also seeDoe v. Bryson (No. 1:12-cv-10240 (D. Mass. Sept. 10, 2021) (retroactively pseudonymizing case), granting Letter/Request, id. (D. Mass. July 14, 2021) (sealed), which seems likely to echo Letter/Request, id. (D. Mass. June 4, 2021. (D. Mass.
[25] In reSeeled Case, 931 F.3d.92 (D.C. Cir. 2019; SEB Inv. Mgmt. AB v. Symantec Corp., No. C 18-02902 WHA, 2021 WL 3487124, *2 (N.D. Cal. Aug. 9, 2021).
[26]Doe V. Princeton Univ. CV 20-4352 (BRM), 2020 WL 3962268, *3 (D.N.J. July 13, 2020. Doev. Rider Univ. CV 16-4882 (BRM), 2018 WL 3756950, *4 (D.N.J. Aug. 7, 2018); K.W. v. Holtzapple, 299 F.R.D. 438, 442 (M.D. Pa. 2014; Doe V. Rollins Coll. 616CV2232ORL37KRS 2017 WL 1111610361 (M.D. Fla. Mar. Fla. Mar. Also see Balerna v. Bosco, No. HHDCV176082264S, 2017 WL 6884041, *2 (Conn. Super. Ct. Dec. 6, 2017, (rejecting pseudonymity for non-Title IX case that arose out of an alleged assault on college campus).
[27] E.g.Doe v. Rollins Col., No. 6:18-cv-1069-Orl-37LRH, 2018 WL 11275374, *4 (M.D. Fla. Oct. 2, 2018, Doe v. Kenyon College. 2:20-CV 4972, 2020 Wl 11885928 (S.D. Ohio Sept. 24, 2020); Doe v. Rector & Visitors of George Mason Univ., 179 F. Supp. 3d 583, 593 (E.D. Va. 2016, Doe v. Trustees Dartmouth Coll. 18-CV-040-LM, 2018 WL 2048385, *5–*6 (D.N.H. May 2, 2018. Doe V. Univ. No. 16-cv-1127, 2016 WL 9307609, *2 (D. Minn. May 25, 2016); Doe v. Alger, 317 F.R.D. 37, 42 (W.D. Va. 2016); Doe v. Purdue Univ., 321 F.R.D. 339, 342 (N.D. Ind. 2017, Doe v. Univ. No. 4:09-CV-62, 2011 WL 13187184, at *19 (E.D. Tenn. July 8, 2011); Doe v. Texas A&M Univ.-Kingsville, No. 2:21-cv-257, at 1 (S.D. Tex. Nov. 4, 2021 (granting motion to proceed under pseudonym, id. (Nov. 2, 2021); Also see Doe v. Elson, S Floyd Coll. Med. Washington State Univ. 2:20-CV-00145-SMJ, 2021 WL 4197366, *2 (E.D. Wash. Mar. 24 Mar. 2021 (accusations by domestic violence made by medical student); Doev. Doe. 90 Mass. App. Ct. 1120, *1 (2016) (upholding trial court’s sealing of a college student’s abuse prevention order case against another student, in which the trial judge had “determined that the standard for issuance of an abuse prevention order had not been met”).
[28]Doe v. Univ. No. 4:09-CV-62, 2011 WL 13187184, at *19 (E.D. Tenn. August 8, 2011
[29] See supra Part II.E.2.