Filing Pseudonymously: Virginia


  1. Virginia
  1. Virginia

    Virginia provides fairly straightforward procedures for anonymous filing—all a plaintiff must do is file as “anonymous” or under a pseudonym. If the anonymous filing is challenged, a court will evaluate factors to determine whether the plaintiff should be forced to reveal his or her identity.

    1. Caselaw

      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.
    2. 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:

      [1] 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;

      [2] whether identification poses a risk of physical or mental harm to the requesting party or to innocent nonparties;

      [3] the age of the persons whose privacy interests are sought to be prosecuted;

      [4] whether the action is against a governmental or private party; and

      [5] 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 (last visited Apr, 20, 2010).

    3. Relevant Statutes

      • 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.

      • Va. Code Ann. § 8.01-15.1 - Anonymous plaintiff; motion for identification; factors to be considered by court.

      • Va. Code Ann. § 19.2-11.2 - Crime victim’s right to nondisclosure of certain information; exceptions; testimonial privilege.

    4. Cases

      1. Doe v. Comm. Com’r Dept. Motor Vehicles, No. CL12-1919, 2012 WL 9334681 (Va. Cir. Ct. Oct. 9, 2012)
        • Law: Anonymous plaintiff; motion for identification; factors to be considered by court.
        • Facts: Petitioner was convicted of driving under the influence, and by administrative order, the Virginia DMV revoked Petitioner’s driving privileges for one year. Petitioner and the DMV disputed whether New Jersey or Virginia’s statute on revocation of driving privileges ought to apply, and how the applicable statute ought to be interpreted. Second, the DMV made a Motion for Identification.
        • Outcome: The court reasoned that Section 8.01-15.1 places the burden on the anonymous litigant to show “special circumstances” that outweigh the public’s interest in knowing the identity of the petitioner and prejudice to the petitioner to allow anonymity. Petitioner relied on a statute providing for confidentiality and nondisclosure of driving records, and contended that DMV had records that allowed it to match the proceedings to Petitioner. The court considered these and the other factors of the statute, and found that Petitioner did not satisfy any of Section 8.01-15.1 factors for anonymity.
        • Special Notes: This case suggests that a petitioner who wishes to proceed anonymously in the face of a Motion for Identification must take care to address each factor of Section 8.01-15.1, rather than rely on an extraneous theory of confidentiality, whether statutory or otherwise.
      2. Am. Online, Inc., v. Anon. Pub. Traded Co., 542 S.E.2d 377 (Va. Sup. Ct. 2001).
        • Procedural Posture: Appeal. The trial court refused to grant AOL’s motion to quash the subpoena duces tecum or issue a protective order barring discovery sought by the anonymous litigant.
        • Law: Anonymous plaintiff; motion for identification; factors to be considered by court.
        • Facts: Plaintiff, anonymous corporation, filed a complaint against John Doe defendants, whose identities and residences were unknown, who allegedly made defamatory and disparaging material representations about the company in chat rooms. The court issued an order authorizing a discovery request to AOL, to obtain the names, addresses, telephone numbers, and any other identifying information pertaining to the four AOL subscriber John Doe defendants.
        • Outcome: While Rule 3:3 of the Rules of the Supreme Court of Virginia requires the “names” of the parties to be stated in pleadings, the court recognized certain circumstances permitting a plaintiff to proceed under a pseudonym. The court held that upon showing of special circumstances when a party’s need for anonymity outweighs the public’s interest in knowing the party’s identity and the prejudice to the opposing party, a court may exercise its discretion to allow a party to proceed anonymously. Circumstances may change as litigation progresses, which may require reconsideration of initial rulings. Here, the anonymous corporation only supported its request to proceed anonymously by fear of economic harm, and accordingly had not borne its burden to show special circumstances justifying anonymity.
        • Special Notes: Petitioners wishing to proceed anonymously should not rely on only one factor of the multi-factor statute; they should allege and offer evidence of multiple factors in order to proceed anonymously, in the face of a Motion for Identification.
      3. Doe v. Briscoe, 61 Va. Cir. 96 (2003).
        • Procedural Posture: The proceeding was stayed until resolution of Defendant’s Motion to Dismiss due to the anonymous filing.
        • Law: Anonymous plaintiff; motion for identification; factors to be considered by court.
        • Facts: Plaintiff alleged she was sexually assaulted by a church minister.
        • Outcome: The court found “courts have generally been reluctant to provide anonymity based on a plaintiff’s potential embarrassment, even if the case involves sexual assault,” and here, Plaintiff had a non-particularized concern regarding the personal nature of the alleged assault and embarrassment, and did not allege or show any other evidence. Considering that Plaintiff met with the church’s credentials committee and made no effort to proceed anonymously, the court held that she did not meet her burden to show anonymity is required to preserve her privacy. Though Plaintiff alleged that she may be placed at risk of physical or mental harm by students of the church-affiliated university, or the church itself, the court held that she did not meet her burden to show a risk of retaliatory harm. The court held that her age—nineteen at the time of filing, and now almost twenty-one—does not meet satisfy the age factor of the statute. The court found that the action being against a private party, as opposed to the government, weighed against Plaintiff. The court was neutral on risk of unfairness to the opposing party. The court finally considered the public right of access to the court. The court did not permit Plaintiff to proceed pseudonymously.
        • Special Notes: This case indicates that some courts may consider the statute a multi-factor test to be considered under a totality of the circumstances, such that plaintiffs need to carry their burden on enough of the factors to warrant anonymity in the proceeding.
    5. Practice Pointers

      • A plaintiff seeking to proceed anonymously should simply file his or her complaint as “Anonymous,” or under a pseudonym.
      • If the plaintiff’s anonymity is challenged through a Motion for Identification, the plaintiff should take care to argue that anonymity is warranted under multiple Section 8.01-15.1 factors.
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