Filing Pseudonymously: Federal

  1. Civil Proceedings

    1. Introduction

      In federal court, a plaintiff who wants to proceed pseudonymously must first obtain permission from the district court to do so by filing a motion with the court. In the motion, the plaintiff must convince the court that his or her privacy interests outweigh the public’s interest in knowing his or her identity and the general presumption of openness in judicial proceedings. Whether to allow plaintiffs to proceed pseudonymously is a question for the district court’s discretion, guided by the factors listed below, but taking into account the totality of the circumstances.

    2. Text of Rule(s)

      1. Fed. R. Civ. P. 10(a):

        “The title of the complaint must name all the parties … ”

      2. Fed R. Civ. P. 17(a):

        “An action must be prosecuted in the name of the real party in interest.”

    3. Discretionary factors considered by courts

      1. Risk of retaliatory physical or mental harm to innocent non-parties.1

      2. The extent to which the identity of the litigant has been kept confidential.2

      3. The magnitude of the public interest in maintaining the confidentiality of the litigant’s identity, or whether, because of the subject matter of the 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.3

      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.4

      5. The undesirability of an outcome adverse to the pseudonymous party and attributable to the party’s refusal to pursue the case at the price of being publicly identified.5

      6. Whether the motivations of the party seeking to pseudonymously, or those opposing the use of a pseudonym, are illegitimate.6

      7. Whether the defendant is a government authority.7

      8. Whether the plaintiff risks prosecution for admitting to engage in illegal activity.8

      9. Possible disclosure by plaintiff of information of “the utmost intimacy.”9

      10. Risk of injury to plaintiff if identified.10

      11. Age of the litigants.11

      12. Possible prejudice of defendant by plaintiff’s use of a pseudonym.12

      13. Degree of economic harm to the plaintiff if her or his identity is known.13

      14. Whether less drastic means of preserving the plaintiff’s interests are available.14

    4. Cases

      1. Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89 (D.D.C. 2015)

        • Procedural Posture: Untimely motion for leave to proceed under a pseudonym

        • Law: Federal civil procedure; Copyright Act, 17 U.S.C. §§ 101 et seq.; RICO, 18 U.S.C. §§ 1961 et seq.; CFAA, 18 U.S.C. § 1030.

        • Facts: The Victim of sexual harassment captured one such incident on video and shared that video with certain coworkers. The video eventually became public due to her coworkers’ Title VII claims against her employer. Plaintiff sued her coworkers and their employment law attorneys.

        • Outcome: Motion to proceed pseudonymously was denied because sexual harassment is not typically considered sufficiently personal as to warrant proceeding by pseudonym, because the suit was against third parties rather than the plaintiff’s assailant, and because the plaintiff’s name was already publicly associated with the video and the underlying incident.

      2. Doe v. Cabrera, 307 F.R.D. 1 (D.D.C. 2014)

        • Procedural Posture: Plaintiff filed her Complaint and, at the same time, a motion to proceed under a pseudonym in D.C. Superior Court. Defendant removed to federal court and filed a motion seeking to prevent the plaintiff from proceeding under a pseudonym.

        • Law: D.C. tort law (assault, battery, and intentional infliction of emotional distress)

        • Facts: Plaintiff alleged that she was sexually assaulted by defendant.

        • Outcome: Court allowed the plaintiff to proceed pseudonymously throughout pretrial proceedings, but held that she would have to disclose her identity if the case went to trial.

      3. Doe v. Oshrin, 299 F.R.D. 100 (D.N.J. 2014)

        • Procedural Posture: Unopposed motion to proceed under a pseudonym.

        • Law: 18 U.S.C. §§ 2255(a), 2252A(f), state tort law

        • Facts: Plaintiff alleged that the defendant surreptitiously produced pornographic images of her when she was a child and that those images were widely disseminated and circulated over the Internet.

        • Outcome: Motion to proceed by pseudonym was granted, particularly because of the highly sensitive, personal nature of the alleged harm, the public interest in maintaining the confidentiality of the plaintiff’s identity in light of this sensitive subject matter, and the risk of continued and/or future harm in the event that the plaintiff’s identity was publicly disclosed.

    5. Practice Pointers

      • It is important to seek and obtain the district court’s permission to proceed under a pseudonym when the Complaint is filed, because otherwise the case is at risk of being dismissed.15

      • Federal courts generally allow a plaintiff to litigate under a pseudonym where there are allegations of sexual assault because these cases concern highly sensitive and personal subjects.16

    1. See Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015) (quoting Nat’l Ass’n of Waterfront Employers v. Chao, 587 F. Supp. 2d 90, 99 (D.D.C. 2008)).
    2. See Doe v. Oshrin, 299 F.R.D. 100, 103 (D.N.J. 2014).
    3. See id.
    4. See id.
    5. See id.
    6. See id.
    7. In 1981, Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) clarified that the analysis should not end with the three factors, and the court also considered threats of violence and the age of the plaintiffs (children).
    8. Id.
    9. Id.
    10. In 1981, Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) clarified that the analysis should not end with the three factors, and the court also considered threats of violence and the age of the plaintiffs (children).
    11. Id.
    12. See, e.g., Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996).
    13. See Does I thru XXIII, 214 F.3d 1058 (9th Cir. 2000) (holding that the threat of deportation from the Northern Mariana Islands to China and other economic sanctions threatened against garment-worker plaintiffs was sufficient to outweigh prejudice to the defendant companies).
    14. See, e.g., Doe v. Ind. Black Expo, Inc., 923 F. Supp. 137, 140 (S.D. Ind. 1996).
    15. See, e.g., W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001).
    16. See Doe v. Cabrera, 307 F.R.D. 1, 5 (D.D.C. 2014).
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  2. Criminal Proceedings

    Generally, the Justice for All Act of 2004 provides all crime victims with a set of rights, including the right to privacy. Under 18 U.S.C. § 3771(a), crime victims are accorded the “right to be treated with fairness and with respect for the victim’s dignity and privacy.”1

    The Federal Rules of Criminal Procedure also provide for privacy protection in court filings. Under Rule 49.1(a), when a filing contains a person’s “social security number, taxpayer identification number, birth date, the name of an individual known to be a minor, a financial account number, or the home address of an individual, the party or nonparty making the filing may include only”:

    1. the last four digits of the social security and taxpayer identification number;
    2. the year of the individual’s birth;
    3. the minor’s initials;
    4. the last four digits of the financial account number;
    5. the city and state of the home address.2

    Other than providing for anonymity of minors in Rule 49.1(a), the Rules are silent on the usage of pseudonyms for adult victims.

    Under 18 U.S.C. § 3509, the federal government protects child victims and child witnesses of crimes by requiring government employees, defendant(s), defendant(s)’ employees, and members of the jury to restrict access to documents disclosing the child victim’s name to those persons who are participating in the proceeding and have reason to know the information contained therein. Section 3509 also mandates that papers containing the child’s name shall be filed under seal without needing to obtain a court order. Furthermore, any person can file a motion for a protective order requesting that a child’s name or other information concerning the child be kept from public disclosure.

    The use of pseudonyms by adults in federal criminal cases is generally decided by the court on a case-by-case basis. Federal courts have always been reluctant to allow victims to proceed anonymously, but have historically protected the identities of juveniles.3 When an adult victim or witness wishes to proceed pseudonymously, the court must balance the witness’s privacy interests with the defendant’s Sixth Amendment right to confront his accuser.4 The standard for proceeding pseudonymously in criminal cases is generally higher than in civil cases and a victim must show that she is at risk of actual physical danger or public censure if she proceeds using her real name.5 In rare instances, courts have also considered damage to a person’s reputation and emotional impact of testifying when deciding whether or not to allow a victim to proceed pseudonymously.6

    1. Justice for All Act, 18 U.S.C. § 3771 (2011).
    2. Fed. R. Crim. Proc. 49.1(a).
    3. United States v. Bateman, 805 F. Supp. 1058, 1060 (D.N.H. 1992).
    4. Id.
    5. United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980).
    6. Bateman, 805 F. Supp. at 1061.
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