No Pseudonymous Quashing of House of Representatives Subpoena to Verizon

In Chief Judge Beryl Whatell’s opinion Plaintiff v. Verizon Communications, Inc.Just made a decision today

Plaintiff seeks to proceed under pseudonym in the instant action seeking to quash a subpoena issued for this person’s phone records to Verizon Communications, Inc. … by the United States House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol …. Plaintiff requests to be treated pseudonymously as his/her identity “is wholly irrelevant for this Court’s decision about whether the subpoena that gave rise to this case is a lawful exercising of Congressional power” and Plaintiff has no other avenue of stopping Plaintiff’s production of Plaintiff’s personal phone data.

Generally, a complaint must state the names of the parties …. Federal and Local Rules [of Civil Procedure]Encourage a “presumption for disclosure” [of litigants’ identities], which stems from the ‘general public interest in the openness of governmental processes,’ … and, more specifically, from the tradition of open judicial proceedings.” This “presumption in openness in judicial proceeding is a fundamental principle of the judicial system.” Courts “generally demand that parties to lawsuits openly identify themselves in order to protect the legitimate public interest in all facts and identities. …

Courts … in special circumstances, may permit a party to proceed anonymously. The party who seeks to make this happen must “both demonstrate that it has a clear need for anonymity and clearly identify what consequences would befall it if forced by the courts to go ahead in its own name.” After this showing is made, the court will need to “balance litigant’s legitimate right in anonymity with countervailing rights in full disclosure.” …

This Court does not believe that plaintiff has proven that his legitimate privacy rights outweighs the public’s interest in the details of this lawsuit. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….

[1.]Plaintiff claims that pseudonymity can be justified since the Select Committee subpoena doesn’t identify “individuals believed to have been affiliated with them.” [phone]number” without an anonymity grant, Plaintiff “would be required to reveal their identity without the Select Committee needing to provide any reason for disclosure.” Plaintiff also claims that the identity of the plaintiff is irrelevant to the issue of whether or not the Select Committee has “demonstrated.”[d]That it serves a legal purpose for seeking the phone records of plaintiff, thus proving that the subpoena was legally issued.

Plaintiff’s argument is misguided. The Select Committee’s subpoena places plaintiff in a position where he/she must choose between fighting the subpoena publically by asserting their rights or giving consent to production of telephone records. However, such decisions are just part of the “annoyances and criticisms that can accompany any litigation.” The district judge assigned to the case will decide on the merits whether the Select Committee has sufficient facts to request plaintiff’s telephone records. The question of whether plaintiff can proceed in this lawsuit in federal court without disclosing plaintiff’s identity is not affected by the Select Committee’s alleged failure to disclose plaintiff’s identity when it sought the subpoena.

[2.] [T]The “relevance” of a plaintiff’s identity to the claims is not relevant in deciding whether privacy rights outweigh public interest in the details of litigation. Plaintiffs regularly litigate suits under their own names where their personal identity is irrelevant to the substance of the case; even if plaintiff’s identity has no bearing on the legal basis for the Select Committee’s subpoena, this separation does not justify removing plaintiff’s identifying information from the legal proceeding entirely….

[3.] [T]He stated that he was willing to take retaliatory action [physical or mental]Both speculative as well as minimal harm are possible. Plaintiff asserts that Plaintiff’s “challenge of the Select Committee’s subpoena” could result in Plaintiff facing retaliation, either by the Select Committee itself or any members thereof. [sic]Publicly threatened to refer recalcitrant witnesses to prison. Plaintiff does not indicate that such retaliation occurred within the context of subpoenas to third parties for telephone records. This is what we are dealing with.

Plaintiff claims that the public release of plaintiff’s identity could result in being “criticized relentlessly.” The risk of harassment and criticism plaintiff describes represents the quintessential “annoyance and criticism that may attend any litigation,” and is far less severe than the degree of serious mental harm or physical danger necessary to override the strong public interest in transparent legal proceedings…. “[B]Ringing litigation can expose a plaintiff and cause him to be criticized and scrutinized. It can also affect how a friend or coworker views the plaintiff. However, retaliatory actions from higher-ups can make it difficult for a plaintiff not to use a pseudonym to pursue his case.[.]” …

[4.]Verizon is named as the defendant, but it’s a non-governmental entity. However, this lawsuit has the intent to question the Select Committee’s investigative powers and purpose. And the law clearly states that there is an increased public interest when an individual/entity files suit against the government. …

My experience shows that courts tend to permit pseudonymity when there are purely legal challenges. This is because the party’s identity can be seen as being largely non-relevant to the case. But, even in these cases, the presumption still remains against pseudonymity (see The Law of Pseudonymous LitigationFor more information, click here

Thank you Prof. Alan Rozenshtein, for this tip. Zoe Tillman (BuzzFeed)This is the source of the latest news on the decision.