Tuesday, August 10, 2010

federal courts - right to proceed anonymously

Doe v. Megless et al. - ED Pa. - August 5, 2010


The court rejected the sec. 1983 plaintiff's request to proceed anonymously in an action against school officials, who had circulated flyers calling plaintiff a "suspicious person," giving his name, address, pictures, vehicle information, etc. and stating “Extra Patrols Around Schools, Suspicious Person [John Doe] has been known to hang around schools in Upper Merion and other townships. He has not approached any kids to this point. [John Doe’s] mental status is unknown. If seen, stop and investigate.”

Lawsuits are inherently public events. SeeDoe v.Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990) (“[L]awsuits are public events and the public has a legitimate interest in knowing the pertinent facts, including the true names of the parties.”). The Federal Rules of Civil Procedure require litigants provide the names of all parties. Fed. R. Civ. P. 10(a);Morrisville, 130 F.R.D. at 614.

The public has a presumptive right to open judicial proceedings, and this right is not taken lightly. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Cir. 2010); see also Doe v. Provident Life and Accident Ins. Co., 176 F.R.D. 464, 465 (E.D. Pa. 1997) (“This Court recognizes the strong public interest militating against pseudonymity— the public right of access to civil judicial records, and proceedings.”).

A plaintiff’s use of a pseudonym “runs afoul of the public’s common law right of access to judicial proceedings.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). A court may allow a party to proceed anonymously in exceptional cases. Morrisville, 130 F.R.D at 614 (“Under special circumstances . . . courts have allowed parties to use fictitious names, particularly where necessary to protect privacy.”). Anonymity may be warranted if a case involves highly sensitive or personal matters, or if there is a concrete risk of injury to the plaintiff by disclosure. M. M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998). To proceed anonymously, a plaintiff must show “both a fear of severe harm, and that the fear of severe harm is reasonable.” Kamehameha Sch., 596 F.3d at 1043. The risk a plaintiff may suffer some embarrassment is not enough. Morrisville, 130 F.R.D. at 614; see also Rose v. Beaumont Indep. Sch. Dist., 240 F.R.D. 264, 266 (E. D. Tex. 2007)

A district court has broad discretion to decide whether to permit a plaintiff to proceed anonymously. Doe v. C.A.R.S. Protection Plan, Inc., 527 F.3d 358, 371 n.2 (3d Cir. 2008). In making this determination, “the public’s right of access [to the court] should prevail unless the party requesting pseudonymity demonstrates that [his] interests in privacy or security justify pseudonymity.” Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa. 2001).

The Third Circuit has not addressed the standard for granting anonymity, but other circuits conduct a balancing test weighing the public interest in open proceedings against a litigant’s personal privacy and security. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001) (“The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.”) (citation, punctuation, and internal quotation marks omitted); Does I Thru XXIII, 214 F.3d at 1068 (“[We] hold that a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.”).

A district court considers a number of non-exclusive factors when decidingwhether to grant a party anonymity. Evans, 202 F.R.D. at 175. Factors in favor of anonymity include: (1) the extent litigant has kept his identity confidential; (2) the reason for anonymity; (3) if there is public interest in favor of anonymity; (4) if the case is fact sensitive or purely of a legal nature; (5) whether the litigant will pursue his claim if he cannot proceed anonymously; and (6) if the party opposing anonymity has illegitimate ulterior motives. Id. at 175-76. Factors against anonymity include: (1) the general level of public interest in the case; (2) if there is a higher level of public interest in the trial because of the subject matter involved or the public status of a litigant; and (3) if the party seeking anonymity has an ulterior motive. Id. . . .

After weighing the factors [at length], this Court holds Plaintiff has not proven his private interest in anonymity outweighs the public’s interest in open judicial proceedings. Accordingly, Plaintiff’s motion to proceed anonymously is denied.