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Oregon: Pseudonym Litigation

Contents

  1. Pseudonym Litigation

  1. Pseudonym Litigation

    1. Introduction

      There may be certain situations in which a WMC plaintiff will seek to protect his or her privacy through pseudonym litigation. Oregon courts generally allow a party to proceed anonymously if he or she meets specific criteria. The Oregon Supreme Court has not yet weighed in on the issue. Relevant federal cases are noted below.

    2. Text of the Statute(s)

      There is no applicable state statute, but Rule 2.035 of the Draft Supplementary Local Rules for the Fourth Judicial District, Circuit Court of the State of Oregon for Multnomah County (eff. Feb. 1, 2013), “Designation of Known Parties by Fictitious Name,” provides: “In civil actions, the designation of a known party by a name other than the party’s true name shall be allowed only upon an order of the court. If ordered, the designation of such party shall be by use of such party’s initials or a fictitious name other than ‘Jane Doe’ or ‘John Doe.’ The name ‘Jane Doe’ or ‘John Doe’ is reserved to be used for a party whose identity is unknown and the party is being designated as provided in ORCP 20H.”1 The case law cited below arose in federal courts, and federal law—not Oregon law—applied.

    3. Cases

      1. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000)

        • Procedural Posture: On appeal from district court order dismissing the actions and granting leave to amend for the complaint to state plaintiffs’ true names.

        • Law: Right to proceed anonymously.

        • Facts: Plaintiffs were foreign garment workers on the island of Saipan who used fictitious names in their complaint because they feared that the disclosure of their identities to the defendants/other nonparties would lead to their termination from their jobs, deportation from Saipan, and arrest/imprisonment by the People’s Republic of China. The district court dismissed the action with leave to amend the complaint to state plaintiffs’ true names.

        • Outcome: The court reversed and allowed plaintiffs to proceed anonymously. The court announced the current standard in the Ninth Circuit explaining that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity. We further hold that in cases where, as here, pseudonyms are used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to such retaliation. The court must also determine the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate the prejudice. Finally, the court must decide whether the public’s interest in the case would be best served by requiring that the litigants reveal their identities.”2 Here, the court found plaintiffs’ fear of retaliation to be real and reasonable, and believed that there would be no prejudice to the defendants since defendants could not show how knowledge of the plaintiffs’ identities would enable them to counter the adverse publicity they would face.

        • Special Notes: The court also believed that the public interest favored hearing this case on the merits, and the court “fail[ed] to see how disguising plaintiffs’ identities will obstruct public scrutiny of the important issues in th[e] case.”3

      2. Doe v. Archdiocese of Portland in Or., No. 07-1732-PK, 2008 WL 656021 (D. Or. Mar. 6, 2008)

        • Procedural Posture: Consideration of defendant’s motion to dismiss or in the alternative, to require plaintiff to plead his “nonfictitious identity”

        • Law: Right to proceed anonymously.

        • Facts: Plaintiff filed a complaint against defendants alleging vicarious liability for sexual battery and intentional infliction of emotional distress on a theory of respondeat superior, as well as defendants’ direct liability for negligence. Defendants sought to require plaintiff to plead his identity under Federal Rule of Civil Procedure 10(a), which provides that the complaint shall include the names of all the parties. The court applied the Advanced Textile factors and analyzed whether plaintiff had put forth sufficient evidence to show that use of a pseudonym was necessary to protect him from “harassment, injury, ridicule, or personal embarrassment.”4

        • Outcome: Because the court determined that the plaintiff’s need for anonymity outweighed any possible prejudice to the defendant and also trumped the public’s interest in knowing the plaintiff’s true identity, plaintiff would be allowed to plead under a fictitious name. However, the court explained that “because the courts are mandated to consider possible prejudice to defendants at every stage of these proceedings, and to consider whether the proceedings may be structured so as to minimize that prejudice, defendants should retain the right to refile their request later in this action, as John’s claims approach trial. In addition, this court shall monitor these proceedings sua sponte as they go forward, to prevent avoidable impairment of defendants’ rights in consequences of John’s anonymity.”5

        • Special Notes: In support of his motion, plaintiff offered a declaration stating that he feared “public humiliation and retaliation” if his name were publicized, and asserting that he would “suffer extreme emotional distress and embarrassment” and feel “re-victimized” if his name were associated with this action.[fn]Id.[fn]

      3. Roe v. Providence Health Sys.—Or., No. CV06-1680-HU, 2007 WL 1876519 (D. Or. Apr. 24, 2007)

        • Procedural Posture: Defendants’ Motion to Dismiss and Plaintiff’s Motion to Proceed in Fictitious Names.

        • Law: Right to proceed anonymously.

        • Facts: Plaintiff is disabled and she used a dog as an assistance animal. Her dog accompanied her during her hospitalizations for over six years. Plaintiff alleged a multi-year history of complaints and attempts by the hospital to exclude her dog, though she continued to insist on bringing him with her. She alleged that hospital personnel harassed her about the dog, but nonetheless admitted her, and allowed her dog to remain with her. Plaintiff sought to proceed anonymously. She asserted that the defendants had been advised of the plaintiffs’ full names and would cooperate with the defendants to ensure they were not prejudiced in discovery. She requested anonymity to avoid detection “by a person who has threatened her with injury and death and against whom she has secured a yearly restraining order from the Circuit Court.”6

        • Outcome: The court applied the factors and determined that the plaintiff had not shown that the use of her real name would increase her vulnerability to the person who was threatening her. Accordingly, even though the defendants had not shown prejudice that would result from her use of a fictitious name, the court denied her right to proceed anonymously: “[D]efendants have shown no harm to them by allowing plaintiffs to proceed under fictitious names, and if there were any harm to the defendants, it could be dealt with by appropriate orders controlling discovery. But for plaintiff Jane Doe’s failure to overcome the presumption, I would recommend granting her motion to proceed under a fictitious name simply for her peace of mind.”7

        • Special Notes: The court considered the Advanced Textile factors: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to the threatened harm.8

    4. Practice Pointers

      • A WMC victim choosing to file an anonymous claim should first consider the local rules of the court in which he or she is proceeding, as they may provide specific protocols for proceeding anonymously. Even if there are no written rules on point, it is probably worthwhile to call the clerk’s office to determine whether the court in question has unwritten procedures.

      • There is no state case law specific to how Oregon state and local courts evaluate whether to allow a plaintiff to proceed anonymously. However, the Oregon federal courts apply the Ninth Circuit rule from Advanced Textile in which courts consider: (1) the severity of the threatened harm; (2) the reasonableness of the plaintiff’s fears; (3) the plaintiff’s vulnerability to the threatened harm; (4) the balance of the harms; and (5) the public interest in allowing anonymity versus forcing disclosure of the plaintiff’s identity.9

    1. Rule 2.035, Draft Supplementary Local Rules Fourth Judicial District, Circuit Court of the State of Oregon for Multnomah County (eff. Feb. 1, 2013), available at http://courts.oregon.gov/Multnomah/docs/CourtRules/SLR2013DraftProposedRules.pdf (last visited May 17, 2013). ↩
    2. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir. 2000) (citations omitted). ↩
    3. Id. at 1072-73. ↩
    4. Doe v. Archdiocese of Portland in Or., No. 07-1732-PK, 2008 WL 656021, at *3 (D. Or. Mar. 6, 2008) (citing Advanced Textile, 214 F.3d at 1067 (citation omitted)). ↩
    5. Id. at *5. ↩
    6. Roe v. Providence Health Sys.—Or., No. CV06-1680-HU, 2007 WL 1876519, at *3 (D. Or. Apr. 24, 2007). ↩
    7. Id. at *4. ↩
    8. See Advanced Textile Corp., 214 F.3d at 1068. ↩
    9. Id. ↩
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