Sealing Kinda Sus

From Judge Ronald A Guzmán’s decision in Doe v. Sandler(N.D. Ill. 2011), which I just came across—as I read it, the judge began the case being open not just to pseudonymity but to sealing (the original TRO, for instance, is sealed, which is very rarely done for court orders), but ultimately seemed to sour on that:

Jane Doe has filed a Verified complaint claiming invasion of privacy due to public disclosures of private facts in Illinois.

Plaintiff, who is a married woman and a leader in her church, was involved in an affair. Her partner and she made video and photograph recordings of intimate sexual activities during this affair. These recordings subsequently fell into the hands of her sexual partner’s “girlfriend” who has threatened to publish the video and photographic evidence of their sexual conduct in different ways, including through the Internet for all the world to see, expose her behavior to her friends and social and religious groups, and has even attempted to extort money from plaintiff, her husband and the parties’ mutual sexual partner—whose identity plaintiff also seeks to protect by using the pseudonym “Richard Roe.”

A temporary ex parte restraining order was granted by the Court on February 25, 2011. It prohibits the defendant from making or causing the distribution of any photograph or video that plaintiff has in its possession. {The Court denied plaintiff’s request to restrain defendant from communicating knowledge of plaintiff’s conduct to others.} At that moment, the Court instructed plaintiff’s attorney that any further motion for preliminary injunction would need to address the question of whether defendant continued using a pseudonym “Jane Doe” in lieu of her real name and the issue regarding keeping files under seal.

The counsel for plaintiff moved to have a consent decree filed under seal. The consent decree is purported to be signed but the defendant never appears by counsel. There are no records that indicate she has ever been represented by counsel at any time.

However, Plaintiff’s motion to enter the Consent Decree fails to address issues such as the continuing use of a pseudonym, or whether it is appropriate for the decree being filed under seal. The Seventh Circuit ruled that it is not appropriate to use a fictional name and has given us the independent obligation to decide if exceptional circumstances warrant a deviation from federal court procedure. Accordingly, counsel was instructed by the Court to file a memorandum on the matter.

Plaintiff starts his memorandum with a quotation Doe V. Stegall (5th Cir. 1981):

It isn’t perfectly balanced that the equation connecting the right of the public to see trials and the right of the public to find out the identities the parties to them is perfectly symmetrical. Anonymity granted to one party does not make it less possible for the public to inspect government functions. The public can still see the issue and the judge’s actions in solving them. Party anonymity is not an obstacle to this right. Even if one party is represented by someone else, it does not affect the fairness of the trial.

The plaintiff in this case is asking for both the sealing of the pleadings and the continuation under a pseudonym. Due to the nature of the case, it is unlikely that there will be any extensive records that can establish the facts. The public would therefore not have access to the issues as they are presented in the pleadings. It was also pointed out in Doe V. Stegall“There remains an obvious and strong First Amendment interest to ensure that “[w]What happens in the courtroom constitutes public property. Rules 10, 17 and 18 of the Federal Rules of Civil Procedure also require the titles of actions to include all parties. Every action must be filed in the name of any party. The Court will need to determine whether plaintiff is entitled to substantial privacy rights that outweigh the First Amendment right in public proceedings. Doe V. StegallRules 10 and 17 of Federal Rules of Civil Procedure reflect this. Another way to put it, whether public disclosure of facts would cause plaintiff more harm than the probable harm from concealment.

Simply put, confidentiality is necessary to avoid embarrassment. The plaintiff wants to avoid embarrassment, as well as the potential loss of community standing that a public disclosure about her conduct could cause. These cases seem to demand more.

Emotional harm, or just embarrassment? [sic]It is not enough to overcome the public interest in disclosure. Privacy interests can allow parties to go anonymously when they are dealing with cases that involve the following: abortion, mental illness or transsexuality; illegitimate children, welfare cases, and so on.

After rejecting the anonymity request of a plaintiff, the Seventh Circuit said:[S]Exual harassment cases can’t be filed anonymously, even if there are more serious facts. The plaintiff isn’t a minor. [or]A victim of rape and torture. This can also be said about the plaintiff. She is neither minor nor victim. Plaintiff was not forced to do sex in the presence of a defendant officer by her employer, or any other figure who claims authority over her. She hasn’t been victim to an illegal, unprofessional, or careless disclosure of facts. Nor does this case involve the exposure of private medical information which might lead to retaliation/discrimination in the workplace or elsewhere.

The case’s position is also such that, if the plaintiff files the consent decree under seal, with anonymity, then the Court will be participating in secret proceedings, which are not open to the public and in which defendant has never been present in person or through counsel. In terms of facts, the Court would rely solely on the representations made by the plaintiff in the sealed pleadings and as transmitted by her counsel. The proposed consent decree is signed by the defendant. However, no record can verify that the signature was made or whether counsel represented the plaintiff. [The decree would have barred defendant from saying anything to anyone about plaintiff’s “personal or sexual relationships,” as well as distributing any photographs about plaintiff, including non-sexually-themed ones. -EV]

Additional concerns are raised by the brevity of the record. When questioned by the Court, plaintiff’s counsel was unable to explain exactly how it is that the defendant came into possession of the photographs and video which plaintiff seeks to suppress—other than to say that she obtained the same from Richard Roe’s computer. It was unclear whether Richard Roe, or anyone else, took reasonable steps to protect the information or if they were negligent or intentional in allowing others access to the computer. Although the information may be personal, it is not possible for the Court to determine if any efforts were made to keep them private. If the information wasn’t private, plaintiff is likely to suffer more harm than if her pleas are public. Plaintiff can’t claim anonymity if she entrusts these photos to someone she doesn’t know or under conditions that make it impossible for her to reasonably expect them to keep them private. This is a rare exception.

However, the record shows that Richard Roe confessed to his affair with the plaintiff when he was confronted. Thus, in two separate ways—the failure to keep the photographs private and his subsequent confession—the defendant’s knowledge was obtained from Richard Roe; someone the plaintiff voluntarily shared her private information with. We also know that the husband of plaintiff was informed about her affair. At least three people are aware of the private information that plaintiff is seeking to suppress. Also, the Memorandum to Support Plaintiff’s Motion for Temporary Restraining Order reveals that defendant already uploaded details and photos about plaintiff to her Facebook account. While the records do not reveal how extensive such postings expose the information to general public, they must be visible for all to see. It is evident that plaintiff’s information has been disclosed to other people, but it is unclear how many.

The Court holds that plaintiff failed to prove that public disclosure of facts would cause plaintiff more harm than the possible harm that she could suffer from her concealment of identity. Accordingly, the motion to enter the consent decree proposed is denied. The plaintiff has the option of amending the pleadings and the proposed judgment in order to reveal her true identity, as well as Richard Roe’s true identity, or to request leave to dismiss the complaint. She will have until March 20th 2011. Without any action from plaintiff, the Court will disqualify the cause without prejudice.

It is evident from the docket that no other filings were made in this case. The case was finally dismissed eight months later.