Filing Under a Pseudonym
Caselaw from Virginia’s courts does encompass discussion of why or when plaintiffs can use pseudonyms, using Virginia’s codification of the Stegall test at VA. ANN. CODE § 8.01-15.1 (see below).
- Doe v. Briscoe, 61 Va. Cir. 96 (2003) – The Virginia circuit court applied the newly-minted statutory factors, derived from a Fourth Circuit case (James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (James is a pseudonym)), and the court looked to foreign jurisdictions applying similar rules for analogues to the instant matter, such as U.S. District Courts from New York and North Carolina (Doe v. Shakur, 164 F.D.R. 359 (S.D.N.Y. 1996), Doe v. Smith, 189 F.R.D. 239 (E.D.N.Y. 1998), and Doe v. N.C. Central U., 1999 U.S. Dist. LEXIS 9804 (M.D.N.C. 1999)). Id. at 99–100. It seems plain that in both intent and application the Virginia rule is mirrored upon the federal circuits’ analyses of plaintiff pseudonymity, upon which the lower district court cases rely.
Further analogies can be made to the privacy interests of the plaintiffs in the following cases:
- Doe v. Zwelling, 270 Va. 594, 620 S.E.2d 750 (Va. 2005) – Married couple, Doe and Poe, malpractice claims arise from the sexual relationship the wife had with her health care provider. The Supreme Court noted: “The trial court entered an order adopting the pseudonyms ‘John Doe’ for the plaintiff and ‘Sally Poe’ for his wife, to protect their privacy and that of their children.” Id. at 751 n.*.
- Doe v. Carilion Medical Center, 65 Va. Cir. 104, 2004 WL 1470342 (Va. Cir. Ct. 2004) – Doe is HIV positive and careful not to reveal the fact to others, but her doctor spreads the information around the community. No discussion of pseudonym.
- Doe v. Paradigm Management Co., Inc., 69 Va. Cir. 446, 2006 WL 147592 (Va. Cir. Ct. 2006) – Doe was sexually assaulted at her workplace and brings claims against employer. No discussion of pseudonym.
- Doe v. Com., 74 Va. Cir. 75, 2007 WL 5984172 (Va. Cir. Ct. 2007) – Does are convicted sex offenders challenging the state sex offender registry. No discussion of pseudonym.
A Virginia court disallowed a corporation from proceeding pseudonymously with defamation and publication of confidential materials claims:
- America Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001) – AOL contests the plaintiff corporation’s pseudonymity as granted by the trial court. The instant court found that no hearing or reasons for the pseudonym were given to the trial court. The court turned to the reasoning of federal cases such as Stegall, Does I thru XXIII, and James v. Jacobsen, including the need for a threat of some social stigma or physical harm. It held that the instant plaintiff failed to put forward any special interests justifying a pseudonym. Fear of economic harm from bad publicity from the litigation was insufficient. Note this opinion issued before the state legislation, below, passed.
Filing Requirements & Availability of Court Records
Virginia is unusual in that the Virginia legislature went so far as to codified a Stegall-like five-factor test for plaintiff pseudonymity. Virginia Annotated Code Section 8.01-15.1 was enacted in 2003 (2003 Va. Acts 572), and provides for a test for when a pseudonymous party is challenged by motion concerning the propriety of the pseudonymity. The test, by implication, requires “special circumstances” for which the plaintiff requests pseudonymity, and considers:
 if the pseudonymity is merely to “avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter;
 whether identification poses a risk of physical or mental harm to the requesting party or to innocent nonparties;
 the age of the persons whose privacy interests are sought to be prosecuted;
 whether the action is against a governmental or private party; and
 the risk of unfairness to other parties if pseudonymity is maintained.
If pseudonymous in court filings, all parties and the court have the right to know the identity of the plaintiff. After an initial determination that the party may proceed pseudonymously, pseudonymity may nevertheless be challenged “at any stage of the litigation” when the circumstances warrant reconsideration. VA. CODE ANN. § 8.01-15.1(B) (2009). If the court determines that the plaintiff cannot use a pseudonym, the statute provides for reform of documents and relation back to the original filing date(s). Id. § 8.01-15.1(C). See also John R. Walk, Civil Practice and Procedure, 39 U. RICH. L. REV. 87, 126 (2004).
Supreme Court opinions are available online but not searchable, dating back to 1995 at http://www.courts.state.va.us/scndex.htm (last visited Apr, 20, 2010).
VA. CODE ANN. § 16.1-305 (2010) provides for confidentiality of court records pertaining to juvenile proceedings and domestic relations.
VA. CODE ANN. § 17.1-208 (2010) provides that in general, court records are open to inspection.