Crisp and Colorful Opinion on the Importance of Non-Pseudonymity in Litigation

My research was done for Pseudonymous Litigation LawArticle, I found this opinion by Judge Steven Seeger (N.D. Ill.) just two years ago. Re: Litigation Concerning Boeing 737 Max PilotsIt was a very effective summary of the main arguments against pseudonymity, and I wanted to share it with you. As my article notes, courts do make exceptions to the litigate-in-your-own-name rule, and there are plausible arguments that pseudonymous litigation should be more commonly allowed; but this is still a good articulation of the dominant view:

Pilots X, Y, Z, A, B, C, D, E, F, G, H, I, J, K, L, & M sued Boeing about its 737 MAX airplanes. They were pilots of planes that crashed, but sued Boeing. These anonymous pilots claim they sustained injuries due to the potential of being impacted by a crash and subsequent grounding. It is possible that the public may wonder who these individuals are. Boeing would like the public to find out, too. Boeing moved to demask the plaintiffs and to force them to identify themselves according to the Federal Rules.

Federal Rule 10 (a) states that every pleading must “name all the parties.” This rule also applies to other filings, motions included. Members of the public see the first thing they encounter when picking up court documents. This is in addition to the Court name. All eyes can see the names at the top and to the right (or to their left) The public can see at a glance who asked the Court for its powers and who injured the plaintiff.

The public rarely sees the name of a party. An attorney may often include the name of their client right below the signature block at the bottom of any filing. Court filings are like bookends. They tell the public from the beginning to the end who’s asking for what.

Rule 10(a), which states that parties must disclose their names, provides the following:[s]Without exception. Not some of the parties—”All“of the parties. Many Federal Rules explicitly allow for exceptions in the case of “good cause”. … But Rule 10(a) isn’t one of them.

Federal court transparency is part of a larger tradition that includes the duty to identify oneself. People’s business is done in open court. Every day of the week, the courthouse is accessible to all. Visitors are welcome at hearings and trials. The public can see evidence and listen to live testimony. Anybody who is interested in what’s happening can come right in.

Public interest is legitimate in facts related to a lawsuit. The most fundamental fact of any case is who the plaintiff is. This rule does more than serve an administrative purpose. This rule protects the legitimate public interest to know all facts, and the identities of any parties. Pseudonymous lawsuits encroach on the public’s rights to access judicial proceedings. The public has an interest in knowing the names of the litigants … and disclosing the parties’ identities furthers openness of judicial proceedings.”

Publicity is a key dimension. People have the right to find out who uses their courts. A trial is public. What transpires in the court room is public property…. The judiciary does not have any special rights that would allow it to edit or suppress events in court proceedings.

Transparency breeds confidence. The appearance of something hidden behind a curtain gives the illusion that there is something going on. The secretive and ill-conceived use of power by the government fuels mistrust and suspicion, as well as reducing confidence in the process. Look! Richmond Newspapers, Inc.(1980) “People in an open society don’t expect infallibility from institutions. But it is hard for them to accept that which they are forbidden from.”); See also GEA Group AG v. Flex-N-Gate Corp. (7th Cir. (2014)”); Goesel v. Boley Intern. (H.K.) Ltd.The purpose of this right to access the judicial records is to permit interested persons, including journalists and lawyers to find out who uses the courts. It also allows them to interpret judicial decisions and track the performance of the judiciary.”).

It is also unfair for a defendant to sue someone anonymously. Unnamed plaintiffs can make claims against named defendants, but there is an inherent structural imbalance. While a lawsuit may cause injury to the defendant, suing anonymously will cost the plaintiff almost nothing. An anonymous plaintiff can sue the defendant for misconduct without shame or liability. In the interest of “[b]”Asic Fairness,” it is important that the playing fields be equal. “If plaintiffs get named as defendants, they should also be named.”

Plaintiffs are forced to be a bit more vulnerable by adding one’s own name. In order to back up their claims, plaintiffs are better able to be seen in the public eye. This also fosters the interest of long-standing people in confronting the truth.[D]The right of the efendants to speak up against their accusers is protected.”

The speaker is held accountable for their actions through public disclosure. Anonymity is fine, but it is quite different from naming someone outright. People feel more restrained when they speak anonymously. See, e.g.,Internet. The Internet. If they must sign it, people are more mindful of what they do and don’t say. Juges are not the exception.

The Seventh Circuit repeatedly criticized the practice of filing claims incognito. See, e.g., Doe V. Smith (7th Cir. 2005) (“[T]his circuit’s decisions … disfavor anonymous litigation…. Public interest is in finding out what the judiciary is up to, which is often hampered by secret litigation.”); Doe v. City of Chicago (7th Cir. 2004) (“Judicial proceedings are supposed to be open…. It is illegal to hide the name of any party in a judicial proceeding. This would prevent the public from accessing the facts, including the identities of the parties.”); Coe v. County of Cook (7th Cir. “1998) ….

The rule’s plain text is clear, but courts make narrow exceptions for the most vulnerable plaintiffs. To protect children’s privacy, victims of rape, or other witnesses, “fictitious” names can be allowed.You can also see Frank v. Doe (11th Cir. 1992. “A plaintiff should only be allowed to act anonymously in exceptional cases where matters are highly sensitive and personal, there is a real risk of harm to the body, or the injury suffered by the plaintiff.””).

To litigate in darkness, a party must identify “exceptional situations” that warrant a departure from federal court procedures. Anonymous filing is an “extraordinary breaking with precedent”, so the grant of leave is a “rare dispensation.”

This standard is not met by the plaintiffs. The motion basically states that Boeing is large and powerful, and they fear reprisal if they identify themselves. However, Plaintiffs provide nothing concrete. The mere possibility of retaliation is insufficient to warrant an exceptional departure from the public norms. If there were no reason to fear retaliation, then public disclosure would become the exception and not the norm.

Boeing is not able to respond in kind. Plaintiffs don’t even work for Boeing. They are employees of airlines that have purchased planes from Boeing. The claim that Boeing has control over who airlines hire to fly their planes is not supported by the plaintiffs. It is hard to imagine that they are at risk of losing their jobs without more information.

The potential harm the Plaintiffs may suffer even if they do, is still small compared with the harms which are usually covered. Losing their job is the worst case scenario. This is a serious matter, and transparency is also important. Although Plaintiffs may allege economic harm at most, a court cannot allow litigants to proceed unless there is a risk of such harm.[ ]Unter pseudonym.

The cat has already been removed from the bag if Plaintiffs fear retaliation by Boeing. In affidavits under seal filed to this Court, the Plaintiffs have already provided their identities. Boeing already knows the identity of these Plaintiffs. It’s difficult to believe that Plaintiffs can be kept from everybody. Other thanBoeing could provide protection for them.

Being identified as a commercial plane pilot isn’t scandalous, not even for the 737 MAX. Being a pilot of a commercial airliner does not make you ashamed. It is, for many people, a source of pride—something to aspire to.

If they are required to identify themselves, it is possible for some of the Plaintiffs to not want to continue with the lawsuit. The brief of the Plaintiffs suggests that this is what they want: “Plaintiffs cannot proceed unless their identities and those of other similarly situated pilots remain secret.” It is up to them. The Court will allow Plaintiffs to review their options.

The plaintiff must file a third amended complaint consolidated by January 28, 2020. Or they will not be allowed to sue at all. They must give the plaintiffs their actual names and not alphabet soup. The complaint “must name all the parties,” as the Federal Rules expressly require….