Tuesday, August 02, 2011

federal courts - right to proceed anonymously

This 3d Cir. case has an extensive discussion of the right to proceed anonymously. The court adopts the test set out in Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997).


John Doe v. Megless, et al. - Third Cir. - August 1, 2011

The court upheld the lower court's denial of plaintiff's request to proceed anonymously against school officials sent out an email to a list of public officials and private citizens instructing them "if you see this person in or around the district schools, please contact the police." The email allegedly included a flyer attachment, which used Doe‟s real name and stated: "[Doe] has been known to hang around schools in Upper Merion and other townships." The message urged people stop and investigate if they saw plaintiff. It also contained his picture, his home address, the make, model, and license plate number of his vehicle, and his Pennsylvania driver‟s license number. He asserts that the email was intended to (1) characterize him as a dangerous and potentially mentally unstable pedophile,1 (2) authorize all recipients to stop and detain Doe on sight, and (3) authorize all recipients to investigate him.

"[O]ne of the essential qualities of a Court of Justice [is] that its proceedings should be public.". . . .Courts have explained that Federal Rule of Civil Procedure 10(a) illustrates "the principle that judicial proceedings, civil as well as criminal, are to be conducted in public." . . ."Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." . . . .And, defendants have a right to confront their accusers. . . . A plaintiff‟s use of a pseudonym "runs afoul of the public‟s common law right of access to judicial proceedings."

While not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously. . . . That a plaintiff may suffer embarrassment or economic harm is not enough. . . . Instead, a plaintiff must show "both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." . . . Examples of areas where courts have allowed pseudonyms include cases involving "abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality."

While we have affirmed district courts‟ decisions on motions to proceed anonymously, we have never set out a test for courts to apply to determine if a litigant‟s reasonable fear of severe harm outweighs the public‟s interest in open judicial proceedings. . . . Many of our sister courts of appeals have provided such guidance [citing cases]. . . When a litigant sufficiently alleges that he or she has a reasonable fear of severe harm from litigating without a pseudonym, courts of appeals are in agreement that district courts should balance a plaintiff‟s interest and fear against the public‟s strong interest in an open litigation process. . . . While the courts of appeals have agreed that district courts should apply a balancing test, each case presents a slightly different list of factors for courts to consider. While one could conclude that there is a conflict as a result of the different factors, each court has agreed that their list of factors is not exhaustive. . . .Further, each court agrees that the purpose of the balancing test is to allow a district court to determine whether a litigant has a reasonable fear of severe harm that outweighs the public‟s interest in open litigation. . . .

Courts within our circuit have been balancing these competing interests for the last fifteen years without our guidance. [citations omitted] . . . . They have primarily relied on a test for the use of pseudonyms set forth in Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). That case set forth a non-exhaustive list of factors to be weighed both in favor of anonymity and also factors that favor the traditional rule of openness. Id. The factors in favor of anonymity included:

"(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant‟s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant‟s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives." Id. at 467-68.

On the other side of the scale, factors disfavoring anonymity included: "(1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant‟s identities, beyond the public‟s interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated." Id. The Provident Life Court noted that its list of factors is not comprehensive, and that trial courts "will always be required to consider those [other] factors which the facts of the particular case implicate.". . . District courts have applied these nine factors successfully and without further guidance.

As district courts have been able to apply the Provident Life test and it does not conflict with the tests that have been adopted by our sister circuits, we see no value in upsetting its application. Accordingly, we endorse it.