American court proceedings are generally open to the public, both in civil and criminal cases. There are some exceptions, but they tend to be narrow.
The parties’ identities are generally treated the same way. People generally have to litigate under their names. But pseudonymous litigation is sometimes allowed, especially in certain categories of cases—for instance, those involving children, or certain kinds of litigation involving challenges to government action (see, e.g., this post, which mentions a case like that in which I was a lawyer). And pseudonymous litigation is not uncommon in cases involving sexual conduct, or other private matters, such as abortion (consider Roe v. Wade).
Still, even in those categories, pseudonymity isn’t certain. For instance, criminal defendants are almost never pseudonymous, even when they are accused of sex crimes (and may concede that the case involved sexual conduct, thought they might argue that it wasn’t criminal). Likewise, that’s so in at least some civil sex crime cases; rather than a categorical rule supporting pseudonymity, many courts use multi-factor balancing tests that come out differently in different cases.
We see that in Rapp v. Fowler, decided yesterday by Judge Lewis A. Kaplan (S.D.N.Y.); Fowler is (in)famous actor Kevin Spacey. A few key passages:
[1.] The harm that C.D. claims would result from the public disclosure of his name would be the “re-trigger[ing]” of his post-traumatic stress disorder (“PTSD”), which he allegedly developed as a consequence of the assault…. [But] even assuming there were no “leak” of C.D.’s identity as the case proceeded, “[b]eing ‘re-exposed’ to the perceived wrong [of which he complains] is an inevitable consequence of litigation itself. If the case goes forward, [plaintiff] will be deposed, no doubt in the presence of the accused defendant; in the less certain event of trial, [ ]he will presumably testify in a public courtroom and be subjected to cross-examination.” Neither of the declarations suggests that proceeding with the case anonymously would protect C.D. from those consequences.
[2.] [Pseudonymity is not justified here] despite the harassing Instagram comments that Rapp received after he went public with his allegations against Spacey, which C.D. implies that he will receive if he discloses his name…. [W]hile online harassment of any kind is repugnant, it is an unfortunate consequence of the social media age. Many who make accusations against public figures are forced to endure it. Without a specific threat of harm and a privacy interest that outweighs the prejudice to the defendant and the public’s right to open courts, however, C.D.’s allegation that he would be subjected to online harassment if he were identified, even if it proved accurate, would not alone entitle him to proceed by anonymously.
[3.] Spacey has shown that he would be prejudiced during discovery because C.D.’s use of a pseudonym likely would prevent persons with information about C.D. or his allegations that would be helpful to Spacey’s defense, but that now are unknown to Spacey, from coming forward.
Highly publicized cases can cause unknown witnesses to surface. By keeping C.D.’s identity confidential, “information about only one side may thus come to light.”
“Information and allegations that are highly sensitive and of a personal nature can flow both ways.” In other words, C.D.’s “allegations and public comments embarrass [Spacey] and place him under the same stigma that concerns” C.D. It would be harder to mitigate against that stigma if C.D. were permitted to remain anonymous.
[4.] C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. He seeks over $40 million in damages. He makes serious charges and, as a result, has put his credibility in issue. “Fairness requires that [he] be prepared to stand behind [his] charges publicly.”
And here’s a much longer excerpt, which contains most of the court’s analysis:
Plaintiffs C.D. and Anthony Rapp claim that defendant Kevin Spacey Fowler, better known as Kevin Spacey, sexually assaulted them over 35 years ago. Their claims regard separate events that allegedly occurred when Spacey was in his twenties and plaintiffs were teenagers [age 14 in C.D.’s case]. The primary question now before the Court is whether the plaintiff currently known by the pseudonym “C.D.” should be permitted to litigate the case without publicly identifying himself. For the following reasons, his motion to proceed anonymously is denied….
The record as it relates to the events leading to this litigation is unusual. Some of the key facts derive from an article posted on a New York magazine web site, Vulture, in November 2017. The Vulture article describes an interview with a “man” who “approached” the magazine and made allegations against Spacey that are virtually identical to C.D.’s allegations in the complaint. Although the article does not disclose the man’s name and states that he wishes to remain anonymous, the parties agree that the victim of the alleged assault described in the article was C.D. As both parties rely on the Vulture article—and neither contests the accuracy of its description of C.D.’s interview with the press—the Court assumes the article’s accuracy for the purposes of this motion.
The genesis of the Vulture article was this. In late 2017, after Rapp publicly accused Spacey of sexually assaulting him, C.D., “who was friendly with a member of the New York staff,” “approached the magazine to talk about Spacey.” Later, when Vulture reached out to “people close to” C.D. to verify his story, those individuals stated that C.D. had spoken to them “about his relationship with Spacey as far back as the 1990s.” …
In August 2019, the New York Legislature passed the Child Victims Act, which temporarily revived the limitations period for civil claims of child sexual abuse under New York law. By the start of 2020, two additional things had occurred. First, C.D. had engaged his current counsel. Second, C.D. had approached Rapp—through a mutual friend—to see whether Rapp would be interested in bringing a civil suit against Spacey. The mutual friend provided Rapp with C.D.’s real name and contact information. Shortly afterward, Rapp connected with both C.D.—who informed Rapp about the New York Child Victims Act—and C.D.’s counsel….
[After C.D. sued, a]t this Court’s directive, plaintiffs provided Spacey with C.D.’s real name and other identifying information on the condition that it be kept confidential until the parties reached a mutually satisfactory agreement as to whether and to what extent C.D.’s identity would be kept from the public as the action proceeded or, in the event no agreement were reached, until the Court decided this motion. No agreement was reached….
As a preliminary matter, the Court will consider all of the papers it has received for purposes of these motions without regard to whether all parts of them would be admissible on summary judgment or at trial. Accordingly, Spacey’s motions to strike are denied and his objection to Dr. Block’s expert report is overruled. The Court turns to the merits of C.D.’s motion.
Openness long has been a central tenet of our legal system. Federal court proceedings and records presumptively are public absent a showing of exceptional circumstances. To this end, Rule 10(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading … contain a caption setting forth the … title of the action,” which must “include the names of all the parties.” “[T]hough seemingly pedestrian,” Rule 10(a) “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”
District courts have discretion to grant an exception to Rule 10(a) only where the litigant seeking to proceed anonymously has a substantial privacy interest that outweighs any prejudice to the opposing party and “the customary and constitutionally-embedded presumption of openness in judicial proceedings.” In Sealed Plaintiff v. Sealed Defendant, the Second Circuit identified a “non-exhaustive” list of ten factors that district courts should consider in balancing these interests:
(1) whether the litigation involves matters that are highly sensitive and of a personal nature,
(2) whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties,
(3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity,
(4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age,
(5) whether the suit is challenging the actions of the government or that of private parties,
(6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court,
(7) whether the plaintiff’s identity has thus far been kept confidential,
(8) whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose his identity,
(9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, and
(10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff….
[T]he digital age has adversely affected the privacy of litigants. The days when court records of litigation largely escaped public notice as they languished in countless file rooms largely ended with the advent of electronic case files, the internet, search engines, and other aspects of the information age. And the loss of the earlier practical obscurity of court files no doubt is compounded when a litigant like C.D. brings a claim against someone in the public eye, especially if the substance of the claim makes it likely to attract significant media attention.
But the threat of significant media attention—however exacerbated by the modern era—alone does not entitle a plaintiff to the exceptional remedy of anonymity under Rule 10. {“[C]laims of public humiliation and embarrassment” due to “significant media attention … are not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously.” Doe v. Shakur (S.D.N.Y. 1996) (denying motion to proceed by pseudonym brought by woman who alleged that rapper Tupac Shakur assaulted her despite the media attention the case likely was to attract); see also Doe v. Weinstein (S.D.N.Y. 2020) (denying motion to proceed by pseudonym brought by woman who alleged that movie producer Harvey Weinstein assaulted her despite that Weinstein’s “notoriety” was likely to cause significant media attention).}
Here, only one Sealed Plaintiff factor supports C.D.’s motion to proceed anonymously. Accordingly, C.D.’s privacy interest—despite the publicity that this case may generate—does not outweigh the prejudice to Spacey and the presumption of open judicial proceedings.
The first Sealed Plaintiff factor, which looks to whether the case involves claims that are “highly sensitive and of a personal nature,” weighs in favor of allowing C.D. to proceed anonymously. Allegations of sexual assault are “paradigmatic example[s]” of highly sensitive and personal claims and thus favor a plaintiff’s use of a pseudonym. Likewise, allegations of sexual abuse of minors typically weigh significantly in favor of a plaintiff’s interest. Importantly, however, “allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym.” Doe v. Skyline Automobiles Inc. (S.D.N.Y. 2019) (citing Doe v. Shakur (S.D.N.Y. 1996) (collecting cases))….
The second, third, and seventh Sealed Plaintiff factors, which in this case appropriately may be considered together, do not favor C.D.’s use of a pseudonym. The second and third factors broadly require courts to take into account whether disclosure of the plaintiff’s name would result in harm, including “retaliatory physical or mental harm” to the plaintiff or, “even more critically, to innocent non-parties.” The seventh factor asks whether the plaintiff’s identity thus far has been kept confidential.
The harm that C.D. claims would result from the public disclosure of his name would be the “re-trigger[ing]” of his post-traumatic stress disorder (“PTSD”), which he allegedly developed as a consequence of the assault. With regard to “allegations of mental harm,” “plaintiffs must base their allegations … on more than just mere speculation.” When a plaintiff claims that disclosing his or her name would “retrigger” symptoms of PTSD, courts have required a “link between public disclosure of plaintiff’s name and the described psychological risk” otherwise “[t]here is simply no way to conclude that granting … permission to proceed under [a] pseudonym[ ] will prevent [plaintiff] from having to revisit the traumatic events.”
The Court takes C.D.’s claim of threatened psychological injury seriously. Sexual assault can have lasting, damaging consequences on a person’s emotional or mental health. But whether the alleged sexual assault caused C.D. to have PTSD or other psychological injuries is not the question before the Court. Rather, the questions are whether the public disclosure of C.D.’s name in the course of this lawsuit in fact uniquely would “retrigger” the PTSD that is said to have resulted from the alleged sexual assault and, if so, how grave the resultant harm would prove to be.
C.D.’s prior actions undercut his position on the rather unusual facts of this case.
C.D. has spoken since the 1990s to an unknown number of people about his “relationship” with Spacey. He does not claim that he received assurances of confidentiality from any of them.
Then, in 2017, C.D. approached a person with whom he was “friendly” to facilitate the publication of his claims against Spacey. He disclosed his identity to Vulture. Vulture in turn sought to verify aspects of C.D.’s assertions with friends or acquaintances of C.D. That necessarily would have required Vulture to identify C.D., by his true identity, to those persons and, at least to some extent, to connect C.D. to the allegations against Spacey. And after the New York Child Victims Act was passed, C.D. (1) hired a lawyer, (2) reached out again to a friend—who is not alleged to have agreed to keep C.D.’s identity confidential—for the purpose of contacting Rapp, and (3) then recruited Rapp to join him in this lawsuit. Thus, the evidence suggests that C.D. knowingly and repeatedly took the risk that any of these individuals at one point or another would reveal his true identity in a manner that would bring that identity to wide public attention, particularly given Spacey’s celebrity.
In this context, [the] declarations [of Neil Bonavita, a licensed clinical social worker who has seen C.D. since 2015, and Dr. Seymour Block, a forensic psychiatrist who evaluated C.D. via Facetime—after this motion was filed—at C.D.’s counsel’s request] do not carry the day for C.D on either of the pertinent questions, let alone both. Both say substantially the same thing: that “[C.D.’s] name being made public to the media, friends or on the internet … will trigger his post-traumatic stress disorder” causing “anxiety, anxiety attacks, nightmares, and depression.” But C.D. already has revealed the alleged facts to friends, revealed his identity to Vulture, and quite likely identified to Vulture people to whom he already had told his story for the purpose of enabling Vulture to try to confirm what he had told it.
Yet there is no suggestion in either declaration that any of those disclosures “to the media [and] friends” retriggered C.D.’s PTSD or, if they did not, why further disclosure would yield a different outcome. And it would be no satisfactory answer to say that one should infer that there was no “retriggering” because C.D. trusted, or assumed that he could trust, those to whom he repeated his story not to reveal C.D.’s identity. As media coverage of the allegations against Spacey grows, as would be very likely as this litigation proceeds and a trial approaches or takes place, it is only common sense to say that the risk of disclosure would grow.
Moreover, even assuming there were no “leak” of C.D.’s identity as the case proceeded, “[b]eing ‘re-exposed’ to the perceived wrong [of which he complains] is an inevitable consequence of litigation itself. If the case goes forward, [plaintiff] will be deposed, no doubt in the presence of the accused defendant; in the less certain event of trial, [ ]he will presumably testify in a public courtroom and be subjected to cross-examination.” Neither of the declarations suggests that proceeding with the case anonymously would protect C.D. from those consequences.
The declarations, no matter how sincere, ultimately are insufficiently persuasive for another reason. Neither gives any sense of the severity of any consequences of a “retriggering” of the alleged PTSD by future disclosure of C.D.’s identity beyond the conclusory statements that it would entail anxiety, nightmares, and depression. Any of these consequences of course would be regrettable. But the frequency, seriousness, clinical significance and treatability of feelings of anxiety and depression and of nightmares doubtless cover broad spectra. The declarations’ conclusory statements are of limited utility.
In sum factors two, three, and seven do not lend much support to C.D.’s position.
{This remains true despite the harassing Instagram comments that Rapp received after he went public with his allegations against Spacey, which C.D. implies that he will receive if he discloses his name. But his implication cannot be credited for two reasons.
First, Rapp admitted in text messages that “98% of what’s coming my way” as a result of his suing Spacey is “overwhelming support” and “the other 2% is random trolling on the web, which I was fully anticipating.” There is no reason to conclude that C.D.’s experience, were he identified, would differ.
Second, while online harassment of any kind is repugnant, it is an unfortunate consequence of the social media age. Many who make accusations against public figures are forced to endure it. Without a specific threat of harm and a privacy interest that outweighs the prejudice to the defendant and the public’s right to open courts, however, C.D.’s allegation that he would be subjected to online harassment if he were identified, even if it proved accurate, would not alone entitle him to proceed by anonymously.} …
The fourth factor, which looks to whether a plaintiff is particularly vulnerable to possible harms of disclosure, does not weigh in favor of C.D.’s use of a pseudonym either. “The plaintiff’s age is a critical factor” in the determination of the fourth factor, “as courts have been readier to protect the privacy interest of minors in legal proceedings than of adults.” “If a plaintiff is not a child, this factor weighs against a finding for anonymity.” Though C.D. brings allegations relating to alleged sexual abuse as a minor, he now is an adult in his 50s who has chosen to level serious charges against a defendant in the public eye. This factor weighs in favor of his shouldering the burden of such accusations….
The sixth factor looks to whether the defendant would be prejudiced if the plaintiff were permitted to proceed under a pseudonym. In considering the sixth factor, courts have examined “difficulties in conducting discovery,” the “reputational damage to defendants,” and the “fundamental fairness of proceeding anonymously.” Spacey has shown that he would be threatened with prejudice in all three ways if C.D.’s motion were granted.
First, Spacey has shown that he would be prejudiced during discovery because C.D.’s use of a pseudonym likely would prevent persons with information about C.D. or his allegations that would be helpful to Spacey’s defense, but that now are unknown to Spacey, from coming forward. If they do not know who this accuser is, they likely would have no way of knowing that their information would be pertinent. Contrary to C.D.’s assertions, this asymmetry in fact-gathering would not be avoided by the fact that C.D. already has provided Spacey with his name. Nor would it be remedied fully by plaintiffs’ proposed stipulation, which would allow Spacey to use and disclose C.D.’s name for discovery purposes on the condition that anyone who becomes privy to his identity would be obliged to keep it confidential. Highly publicized cases can cause unknown witnesses to surface. By keeping C.D.’s identity confidential, “information about only one side may thus come to light.” This not only would prejudice Spacey, but would hinder “the judicial interest in accurate fact-finding and fair adjudication.”
Second, Spacey has suffered significant reputational damage from C.D.’s allegations. “Information and allegations that are highly sensitive and of a personal nature can flow both ways.” In other words, C.D.’s “allegations and public comments embarrass [Spacey] and place him under the same stigma that concerns” C.D.” It would be harder to mitigate against that stigma if C.D. were permitted to remain anonymous.
Lastly, fundamental fairness suggests that defendants are prejudiced when “required to defend [themselves] publicly before a jury while plaintiff[s] … make … accusations from behind a cloak of anonymity.” C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. He seeks over $40 million in damages. He makes serious charges and, as a result, has put his credibility in issue. “Fairness requires that [he] be prepared to stand behind [his] charges publicly.” …
Factors five, eight, and nine, all of which relate to the public’s interest in knowing the plaintiff’s identity, weigh against C.D.’s use of a pseudonym.
The fifth factor looks to whether the suit challenges the actions of the government or that of private parties. “In private civil suits, courts recognize there is a significant interest in open judicial proceedings since such suits ‘do not only advance the parties’ private interests, but also further the public’s interest in enforcing legal and social norms.'” C.D. brings allegations against a private party so this factor weighs against his use of a pseudonym.
The ninth factor looks to whether, because of the purely legal nature of the issues presented, there is an atypically weak public interest in knowing the litigants’ identities. C.D.’s allegations are decidedly factual in nature, so this factor too weighs against his use of a pseudonym.
The eighth factor generally requires courts to look to whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose his or her identity. As discussed above, the public “has a legitimate interest” in knowing the underlying facts of a litigation, including the identities of the litigants. Here, that interest is magnified because C.D. has made his allegations against a public figure.
C.D. argues that there is a competing public interest in keeping the identity of those who make sexual assault allegations anonymous so that they are not deterred from vindicating their rights. Along these lines, C.D.’s counsel in his latest letter stated that “C.D. has reluctantly decided” that “he is emotionally unable to proceed with the action and will discontinue his claims” if the Court denies his motion to proceed by pseudonym. It would be inappropriate at this juncture for the Court to play any role in deciding whether C.D. persists in his claims against Spacey, which of course would be his right regardless of the outcome of this motion. The Court’s role is to weigh C.D.’s privacy interest against the prejudice to Spacey and the public’s interest in open judicial proceedings. Though C.D. is correct that the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature. For the foregoing reasons, C.D. has not shown that his privacy interest is sufficient to warrant allowing him to litigate his sexual assault allegations anonymously. Accordingly, on balance, the public interest does not weigh in favor of C.D.’s use of an pseudonym….
Finally, the tenth factor, which looks to whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff, does not weigh in favor of C.D.’s use of a pseudonym. C.D. “can seek less drastic remedies than blanket anonymity, such as redactions to protect particularly sensitive information, or a protective order.” And Spacey already has expressed his amenability to such an order….
from Latest – Reason.com https://ift.tt/3aYKBLS
via IFTTT