There may be certain situations in which a WMC plaintiff will seek to protect his or her privacy through pseudonym litigation. New York courts generally allow a party to proceed anonymously if specific criteria are met.
For instance in Anonymous v. Anonymous, the plaintiff sought permission to proceed anonymously. The Defendent did not oppose the plaintiff's motion and also sought to proceed anonymously.
1) Anonymous v. Anonymous, 744 N.Y.S.2d 659 (N.Y. Sup. Ct. 2002) - Plaintiff was brutally assaulted in the bathroom of a cafeteria owned by the defendant. The cafeteria was open to the general public, but individuals had to present identification to a security guard and pass through a turnstile to enter. The assailant was indicted, arrested, and imprisoned. Plaintiff sued the defendant in its capacity as the owner and controller of the cafeteria property.
The court allowed both parties to proceed anonymously. The court noted that granting anonymity did not mean sealing records, and cited to cases from other jurisdictions in which courts applied balancing tests to weigh the parties’ rights to privacy against the demands of the public interest. The court noted that there was no indication that the defendant was negligent with respect to security of its premises and publicity could only lead to a “trial by newspaper.”1
Interestingly, the court referenced several decisions in which courts allowed plaintiffs to proceed anonymously and noted that “[f]ederal courts have also generally allowed plaintiffs to proceed anonymously in cases such as abortion, mental illness, homosexuality, and religion.”2
2) In, "J. Doe No. 1" v. CBS Broad, Inc., 806 N.Y.S.2d 38 (N.Y. App. Div. 2005), the Plaintiffs sought to proceed anonymously on their action for trespass to chattels based on random digit dialing and/or sequential dialing to unlisted/unpublished telephone numbers. Plaintiffs sought relief for trespass to chattels based on random digit dialing and/or sequential dialing to unlisted and unpublished telephone numbers. Plaintiffs alleged no harm to the condition, quality or material value of the phones at issue, thereby failing to plead an essential element of their cause of action.3
The court dismissed plaintiffs’ claim because they failed to allege harm to the condition, quality, and/or value of their phones. The court also dismissed as a plaintiff J. Doe 2 who was not a subscriber and therefore, lacked standing to assert the claim as pleaded.
3) In Doe v. New York Univ., 786 N.Y.S.2d 892 (N.Y. Gen. Term 2004), the plaintiffs sought damages arising from sexual assaults at the university, and the plaintiffs sought to replace their names with pseudonyms because of the nature of their injuries, the emotional distress they had allegedly suffered, and the need for psychotherapy treatment, as well as the right to privacy. The newspaper organization, operated by students at NYU, sought to intervene to oppose plaintiffs’ motion to seal court records and prevent publication of their names asserting that the names, etc. should be made public.
The court held that plaintiffs should be permitted to file an amended complaint to replace their names with pseudonyms, and plaintiffs’ application for an order sealing records was denied. Although the plaintiffs did not demonstrate good cause to seal the entire record, they did demonstrate good cause to proceed anonymously, which “is not the equivalent of sealing records and does not prevent the public from accessing records.”4 There, “the ultimate inquiry must be whether ‘the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings,’” e.g. where a substantial privacy interest is involved. Because the plaintiffs were victims of sexual assault, suffered emotional distress, underwent psychotherapy, etc., the use of pseudonyms would “avoid any sensational publicity associated with the widely recognized university, NYU.”5
Moreover, the right of access of the newspaper organization under the First Amendment was not absolute, and redaction has been held to be a viable option in many circumstances. The court also granted plaintiffs’ action for an order permanently enjoining NYU or any news affiliates from publishing names, or in any other way making the identities of the plaintiffs to this action known to the extent that NYU is permanently enjoined.6 The court denied the motion to the extent that plaintiffs asked for an order granting a permanent injunction to protect plaintiffs’ identities retroactively and in perpetuity.
The following case explains New York and federal law on pseudonym litigation, noting that “[a]mong the factors considered in permitting the use of a pseudonym are: ‘whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature’; whether the party seeking anonymity has an illegitimate ulterior motive; the extent to which the identity of the litigant has been kept confidential; whether identification poses a risk of mental or physical harm, harassment, ridicule or personal embarrassment; whether the case involves information of the utmost intimacy; whether the action is against a governmental entity; the magnitude of the public interest in maintaining confidentiality or knowing the party’s identity; whether revealing the identity of the party will dissuade the party from bringing the lawsuit; whether the opposition to anonymity has an illegitimate basis; and whether the other side will be prejudiced by the use of the pseudonym. A particularly relevant factor is whether ‘the injury litigated against would occur as a result of the disclosure of the plaintiff’s identity.” 7 Additionally, “Fed. R. Civ. P. 10(a) requires that a complaint state the names of the parties. However, in exceptional cases, the Federal courts depart from this rule to protect the privacy interests of a party. Indeed, the Supreme Court has permitted pseudonymity in several cases.”8
4) In Szul Jewelry, Inc. v. Q2 Entm’t & Mitchell Goldman, No. 0604277/2007, 2008 WL 2157893 (N.Y. Sup. Ct. May 8, 2008), the plaintiff used a pseudonym in her complaint requesting a declaration that defendants violated her right to privacy under the New York civil rights statute by displaying sexually explicit videotape featuring plaintiff on the internet and a permanent injunction blocking the dissemination of videotape. Defendants moved to dismiss the complaint based on documentary evidence—the video’s script, the cancelled check for $200, and numerous emails exchanged between plaintiff and individual defendant Goldman—and moved alternatively for the dismissal of Mitchell Goldman. Defendants also argued that if the case were permitted to proceed, its caption should be amended to reflect plaintiff’s real name in part because the use of a pseudonym undermines the presumption of openness inherent in judicial proceedings.
The plaintiff, a 37-year-old woman who worked as a model, on-air host for a cable network program, actor and an elementary teacher, answered an advertisement on an actors’ website, placed by defendant Q2 Entertainment, a company headed by defendant Goldman. The advertisement sought an actress for a “viral web spot commercial” for Szul Jewelry, Inc. and its subsidiary Szul.com. Defendant hired plaintiff and paid her $200 for her work, but never asked her to sign a Model’s Release or authorize the use of her likeness for advertising/trade. The advertisement was released on “You-Tube” entitled “Rock Her World.” Plaintiff alleged that it was heavily edited down to a 35-second non-comedic video featuring plaintiff alone, stimulating an orgasm. Plaintiff asked that the video be taken off You-Tube, and she refused to sign a release. Defendants cancelled Plaintiff’s paycheck, but refused to remove the video for approximately eighteen days. During that time period, the video received more than 699,000 user hits. Defendant presented into evidence emails between plaintiff and Goldman in which plaintiff noted that she was scared of the video’s possible effects on her career. Plaintiff contended that because of the video, hundreds of demeaning and insulting comments were posted about her, and she had suffered a loss of reputation, lost earnings, and emotional distress, as well as threats of blacklisting by contacts in the entertainment industry. Also, she contended that the jewelry company received a lot of publicity and benefited greatly from her services. She sued defendants, asking for a declaration that their actions had violated the NY privacy statutes, a permanent injunction, and compensatory and punitive damages.
The court denied the motion to dismiss on defendants’ documentary evidence and determined that plaintiff could remain anonymous. In regards to the denial of the motion to dismiss, the court found that the dispute centered on whether the use of the video was based on plaintiff’s written consent, and defendants’ evidence did not refute her allegations that any consent she may have given was for use of the video in a different manner, in a different venue, and for a different purpose. The court dismissed Goldman as a defendant in his personal capacity however. In finding that plaintiff could proceed anonymously, the court determined that it was a matter of court discretion. Because the case involved a sexually explicit tape, and would center on information about plaintiff of a “sensitive and highly personal nature,” “[t]he only purpose revelation of plaintiff’s name could have would be to further discomfit plaintiff and perhaps deter her from litigating the matter. In fact, revelation of plaintiff’s identity would undermine the litigation by denying a portion of the relief ultimately requested in the action. The public has an interest in seeing this case determined on the merits, after the parties have had an opportunity to fully and properly litigate the issues.” 9 The court also recognized that “a grant of anonymity impacts far less on the public’s right to open proceedings than does the closing of a courtroom or the sealing of records—relief requested by defendants.” 10
- 1. Anonymous v. Anonymous, 744 N.Y.S.2d 659 (N.Y. Sup. Ct. 2002).
- 2. Id.
- 3. “J. Doe No. 1” v. CBS Broad. Inc., 806 N.Y.S.2d 38 (N.Y. App. Div. 2005).
- 4. Doe v. New York Univ., 786 N.Y.S.2d 892 (N.Y. Gen. Term 2004).
- 5. Id. at 904.
- 6. Id.
- 7. Doe v. Szul Jewelry, Inc., No. 0604277/2007, 2008 WL 2157893, at *6 (N.Y. Sup. Ct. May 8, 2008)(noting that “[t]he court finds that plaintiff’s privacy interest justifies her use of a pseudonym.”).
- 8. Id. at 6 n.4 (citations omitted).
- 9. Id.
- 10. Id.