[1.] From New York trial court judge Dakota Ramseur’s opinion in Duncan v. Dick Blick Holdings, Inc., decided Jan. 21 but just posted on Westlaw (for more on the trans dimension, see item 4 below):

In July 2023, plaintiff Dustin Duncan commenced this defamation action against defendants Dick Blick Holdings, Inc. …, and Sawyer Allen, a/k/a Sawyer Quinn … related to various social media posts Allen made while employed by Blick that accused plaintiff of stalking and harassing him….

According to his first amended complaint, plaintiff is a professor of epidemiology at Columbia University whose fields of research focus on the intersectionality of health equity and black gay, bisexual, and other marginalized communities. In April 2023, he visited Harlem Dick Blick Store, a local art supplier near his campus, and placed an order to have certain works of art framed. Plaintiff first met Allen, an employee of Harlem Blick, while placing this order. During their interaction, Allen requested plaintiff’s Instagram handle, which he provided, and both communicated with each other through the app for a period of a few weeks.

On or around June 9, 2023, plaintiff returned to the Harlem Dick Blick to pick up the framed artwork, at which time a manager approached him and stated that he would not be able to have additional artwork framed at their store. The manager explained, in front of other customers, that an unnamed employee had made accusations that he had been harassing or stalking them and that he would not be permitted to visit the store as pretext to engage in further harassment. Thereafter, on June 23, 2023, Allen posted the accusations of harassment to his Instagram account next to plaintiff’s professional Columbia University photograph. The post’s caption reads:

“I need help!! This man has been stalking & harassing me for nearly three weeks now. He was a customer that came into my job to get some of his artwork framed …. since that day he would come to the store asking for me. After he picked up his artwork, they banned him from coming back to the store. Since then he has been messaging me nonstop! I have already blocked him off four accounts. I tried getting an order of protection, but they denied it. Because he hasn’t done any physical harm to me [sic] … [T]his man needs to be stopped!! #columbia university.”

The post is accompanied by screenshots of messages purportedly sent from plaintiff that promise to continue the harassment unless Allen speaks to him. {The allegedly fake messages include, among others, “Harassment? Lol you have no idea what it would look like if I was harassing you. You may get the cops involved, but how is that going to stop me from messaging you … I don’t plan on stopping until you meet up with me in person and we talk,” “You can continue to block me its not hard for me to make another account and you are going to hear me out,” and “I know exactly where you live as well[.] You don’t even what I need to talk to you about [sic] and I’m sure once you hear me out you will have a better understanding to all of this.”} According to the complaint, however, the messages were sent from an Instagram account with the username @d.d_can, an account which, as reveal through a subpoena issued to Meta (Instagram’s parent company), was created using Allen’s phone number (and the same number that is attached to the Instagram account that Allen originally gave plaintiff when they first met). Screenshots of what appears to be Allen’s Facebook profile reveal that he posted the same allegations on that platform as well, including one that tagged Columbia University, and that he created a Go Fund Me page entitled “Columbia University professor harassment, organized by Sawyer Allen.”

Plaintiff further alleges that Allen contacted Columbia University on June 28, 2023, and filed a complaint with the school, which prompted it to open a formal investigation. Through Columbia’s investigation, plaintiff learned that Allen accused him of “following him on the subway on more than one occasion while wielding a knife, including on the L train to Brooklyn” on June 15, 2023, and of “lurking, walking by, and/or standing on the driveway of his home on or about June 24, June 25, and June 27, 2023.” Plaintiff denies each of these allegations. Further, according to its determination letter, Columbia’s investigation “did not find, by a preponderance of the evidence standard, that you [plaintiff] engaged in conduct amounting to sexual harassment, stalking, and discriminatory harassment … Based on the investigation, [The Office of Equal Opportunity and Affirmative Action] did not find Complainant’s allegations to be supported by the evidence.”

Plaintiff’s causes of action are for (1) defamation per se against both Allen and Dick Blick, as his employer, (2) negligent supervision and retention against Dick Blick, (3) intentional infliction of emotional distress against Allen, and (4) negligent infliction of emotional distress against both defendants. In addition, … plaintiff seeks to interpose a second amended complaint and assert a cause of action for malicious prosecution against Allen. This claim is premised on Allen filing false police reports that resulted in a grand jury indictment [of Duncan] and his arrest on September 18, 2023. The indictment was ultimately dismissed on March 7, 2024….

[2.] The court rejected plaintiff’s claims against Dick Blick (though my sense is that in some other states, the respondeat superior theory might have been viable):

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of employment.” … Where an employee’s actions do not further the employer’s interest or are not necessary to carrying out duties incumbent on them, or where the employee’s actions are taken for wholly personal reasons unrelated to their job, vicarious liability cannot attach.

Here, plaintiff alleges that Allen, in sum and substance, falsely claimed—to Dick Blick no less—that he had engaged in a serious criminal conduct by harassing and stalking him, that Allen publicly posted to Instagram these false allegation, with screenshot that made it appear as though plaintiff was continuing to engage in the harassment, and then Allen filed a complaint with Columbia University, accusing him of stalking him with a knife. These factual allegations—that Allen, for reasons unknown, “waged a campaign of harassment and defamation” against him—do not contain a nexus to any purported employment-related duties that he may have had at Dick Blick….

[P]laintiff has not explained to the Court how Allen’s conduct could theoretically come within the ambit of his job duties. As Dick Blick argues, if Allen defamed plaintiff to his manager or management in general by making the false accusations he did and Dick Blick, on this basis, refused his future business, Dick Blick’s interest could not have been served by Allen’s conduct…. Nor does the fact that Allen allegedly sent fake messages during business hours support the conclusion that Allen’s actions were within the scope of his employment….

[As to] plaintiff’s second cause of action for negligent supervision and retention …[, such claims require] allegations that the employer knew of its employee’s harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. Here, as defendants contend, plaintiff’s complaint is devoid of allegations as to how Dick Blick, from Allen’s previous conduct, knew or should have known about a propensity to defame or make false accusations against customers to its management. Plaintiff’s opposition only highlights this defect. He argues that Dick Blick knew or should have known about Allen’s “propensity to misuse social media and Go Fund Me sites,” but his complaint does not identify previous instances in which Allen misused social media in a way comparable to the allegations made here….

{The Court is cognizant of the fact that the rather typical negligent supervision claim concerns an employee who engages in an act of violence. It is also cognizant that it may be more difficult to discern when an employer is put on notice of an employee’s propensity to engage in defamation than it would be for a propensity toward violence. Like here, this is because, to be on notice of the propensity for the tortious conduct at issue, i.e., the defamation, the employer must have some sort of awareness as to the truth of employee’s statements, statements that may have been made outside the confines of the employer’s premises and through social media to other third-parties. Here, assuming that plaintiff put Dick Blick on notice that he considered the allegations Allen made to be false, there was no evidence put forward to dispute Allen’s statements at that time.}

[3.] The court, however, allowed plaintiff’s defamation claim to go forward against Allen (though it rejected the infliction of emotional distress claims as duplicative of the defamation claim). And the court allowed plaintiff to amend his complaint to add a malicious prosecution complaint against Allen “based on alleged false reports he made to police that subsequently led to plaintiff’s arrest and indictment”:

[I]n providing false evidence to the police or withholding evidence that might affect the determination by the police, a defendant may be said to have initiated a criminal proceeding [for purposes of a malicious prosecution claim].

Here, taking the allegations as true, plaintiff alleges that Allen did not “merely report” a crime, but invented one. His complaint details that Allen reported to police that plaintiff “displayed a knife” and stated, “just listen to me or else” on June 14, 2023—a date in which, according to plaintiff, he was traveling outside New York. He further alleges that Allen provided police with the messages from his own fake Instagram account, in which he pretended to be plaintiff. Those messages include, “I hate this saying. But you can run, but you can’t hide for long,” “Eventually you are going to have to face me. Whether it’s in court or in person. And I am not worried about court,” “Drop the investigation or else. Do you care about your family’s lives,” and “Good morning, I need you to drop this investigation now! I don’t need to follow you to know where you are. But trust me. If you don’t drop this investigation, this won’t end well on your end.”

According to the complaint, one of the charges returned by the Grand Jury include intimidating a victim or witness. It strains credulity to suggest, as defendants appear to, that defendant’s alleged false evidence was not made “with malice” and “did not contribute to the determination to arrest plaintiff.” At this juncture, plaintiff has sufficiently pled a cause of action for malicious prosecution….

[4.] The underlying dispute also produced another pending libel suit, Duncan v. Lett (E.D. Pa.), which Duncan filed against another professor, Elle Lett, who publicly supported Allen’s accusations. Here’s the Preliminary Statement from Lett’s pending motion for summary judgment:

In this action, Dr. Dustin Duncan (“Plaintiff” or “Dr. Duncan”) accuses Dr. Elle Lett (“Defendant” or “Dr. Lett”) of defamation per se for publicly supporting a fellow member of the Transgender community who alleged Dr. Duncan harassed him across various social media platforms. {Dr. Lett is a Black Transgender (“Trans”) woman, University of Pennsylvania Physician and Statistician-Epidemiologist, notable LGBTQ scholar and outspoken advocate for the rights of marginalized persons, particularly the Trans community.} However, the law does not permit liability for defamation per se when Dr. Lett was, at all times, acting to support someone genuinely believed by many members of the LGBTQIA and academic public health communities (with Plaintiff’s employees) to be the victim of harassment. Pennsylvania (“PA”) and New York (“NY”) law protect Dr. Lett’s speech from liability.

This SJM should be granted on ten bases: 1) Dr. Lett’s speech is protected by PA’s anti-SLAPP law; 2) if PA’s anti-SLAPP law does not apply, NY Law governs this action and 3) NY anti-SLAPP applies; 4) the public interest privilege protects Dr. Lett’s speech; 5) Plaintiff is a public figure; 6) as a public figure, Plaintiff must demonstrate actual malice by clear and convincing evidence in Dr. Lett’s speech—there is no such evidence; 7) Dr. Lett’s private messages to colleagues are protected by the common interest privilege; 8) Dr. Lett’s commentary on “X” (Twitter) are non-actionable opinions so this claim cannot be sustained; 9) even if these statements were actionable, Plaintiff must still demonstrate actual malice—there is none; 10) Dr. Lett is owed attorney’s fees.

(Note that Judge Kelley Hodge, who is presiding over Duncan v. Lett, held in July that the anti-SLAPP statutes don’t apply.)

And here’s an excerpt from the Preliminary Statement from Duncan’s pending motion for summary judgment:

The gravamen of Defendant’s defense in this case has been the insistence that Defendant made public statements about Professor Duncan with a belief that Defendant was courageously standing up for Sawyer against Professor Duncan. (Def. 3rd SJ Dkt. # 67 at 3 (“When confronted with these alarming accusations, [Defendant], for the sake of professional and financial gain, could have done the much easier thing: remain silent. Instead, [Defendant] mustered the courage to stand against a well-known colleague by publicly supporting [Sawyer] who [Defendant] believed was harmed.”).) Defendant’s rhetoric is wholly insufficient to avoid liability.

No defendant in a defamation case can “insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith…. [R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant v. Thompson (1968). The undisputed factual record demonstrates: (1) Defendant acknowledged having a long-standing ill will toward Professor Duncan; (2) within a few hours of learning about Sawyer’s accusations about Professor Duncan, Defendant leapt on them uncritically, republishing and amplifying them to, inter alia, professional colleagues of Professor Duncan and purposefully avoiding an opportunity to verify any of Sawyer’s accusations with Sawyer directly; (3) when Defendant was presented with verified facts in the NYS Complaint in July 2023, Defendant understood that they disputed key aspects of Sawyer’s story but made the choice to disregard those facts; (4) only when Defendant was sued in this case—and confronted with the possibility of facing real consequences—did Defendant acknowledge that Sawyer had indeed fabricated claims against Professor Duncan. This factual background is dispositive here. Professor Duncan respectfully submits that this Court can and should determine as a matter of law that the Defendant’s statements are defamatory per se.

The post Stalking Allegations, Defamation, Malicious Prosecution, and Professors, with a Trans Angle appeared first on Reason.com.

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I recently became an adjunct fellow at the Manhattan Institute. The flagship journal of MI is City Journal, where I will contribute on a regular basis. For my inaugural essay, I decided to do something totally different, that is only tangentially about the law.

I have long had problems with how the calendar of holidays is structured. These holidays were not organized in a single plan, but instead were added in a piecemeal fashion over the years. Professionally, I see the difficulties of optimizing the law school academic calendar. I usually teach on Mondays. As a result, there is a gap for both the fall and spring semesters with Labor Day and MLK Day, respectively, which requires making up a class at an irregular time. Some years ago, I tried to move Labor Day till later in the semester to give students another reading day before exam; my motion failed. And, as a parent, I am repeatedly frustrated with how many days my kids have off from school. It is an abomination to hold back-to-back half days–all the frustration of getting kids ready in the morning, only to have to pick them up a few hours later. Anyway, calendars could improve. And one way to start is by realigning the holidays.

My essay is titled, Let’s Fix Our Federal Holiday Schedule.

Here is the introduction:

At present, the United States has 11 federal holidays, accumulated over the course of two and a half centuries. Some of the current dates make sense; others don’t. As a whole, these national holidays create complexities for Americans’ school, work, and vacation calendars. We should rearrange this lineup.

Three principles guide this endeavor. First, it must be bipartisan. For better or worse, some holidays have become more associated with the Left and others with the Right. Reform will require give and take from both sides.

Second, the holidays should make it easier to establish regular schedules in schools and workplaces. One holiday in close proximity to another disrupts continuity.

Third, under the current calendar, several months have no holidays while other months have several. As any school child will tell you, it’s not fair that six holidays are crammed together in the cold months, while only one holiday is in spring. As any school administrator will confide, Labor Day and MLK Day both make scheduling classes difficult. The holidays should be spaced out more evenly.

A few adjustments could create a calendar that garners bipartisan support, simplifies scheduling, and spaces out time for reflection and relaxation.

And here is where I ultimately wind up:

The resultant calendar: New Year’s Day on January 1; Martin Luther King Jr. Day on the first Monday in February; President’s Day on the first Monday in March; Labor Day on the first Monday in May; Memorial Day on the last Monday in May; Juneteenth on June 19; Independence Day on July 4; Constitution Day on September 17; Veterans Day on the third Monday in October; Thanksgiving on the fourth Thursday in November; and Christmas on December 25.

This plan checks all the boxes.

As is the case with many of my writings, the purpose here is to stimulate discussion. I’m sure there are other, better proposals. If you think of something, please drop me a line!

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2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

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Two security professionals who were hired by the Iowa Judicial Branch to do a security assessment have received a $600,000 settlement after the county wrongly arrested them and fought them for years. In 2019, Gary DeMercurio and Justin Wynn were working at the Dallas County Courthouse and triggered an alarm as part of a penetration test. When deputies showed up, the testers showed their authorization papers, and that seemed to be the end of it. But when Sheriff Chad Leonard arrived, he had them charged with felony burglary. Leonard insisted he controls the courthouse and is the only one who can authorize such work. The charges were later reduced to misdemeanors and eventually dropped even as Leonard still insisted the testers’ actions were illegal.

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Jeffrey Toobin had a remarkable column in the New York Times, titled “The Plan for a Radically Different Supreme Court Is Here.” What is that plan? Read the article from top to bottom, and you won’t find an actual plan. Not even the concept of a plan.

The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS’s newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don’t recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin’s lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.

Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. “We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics,” he told me. “And it can’t just be, ‘We’re not originalists’ in the same way that A.C.S. can’t just be, ‘We’re not the Federalists.’ That’s not how I view the organization, and that’s not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there.”

What is that “affirmative” theory? Brest has no clue. The only viable strategy is “antitrumpism.”

For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump’s record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building “a bulwark against overreach by the Trump administration and the Roberts court.” This is understandable, perhaps even wise, because in the view of Mr. Brest’s universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.

So much for a ruling for the ages.

How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn’t know:

Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. “As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward,” he said.

As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.

I’ve lost count of the number of law review articles that attack originalism and textualism. Frankly, I’ve stopped reading them because they don’t matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn’t need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.

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From a decision last week in Smith v. Solomon, by Judge André Birotte Jr.:

Plaintiff files the [application] in a case voluntarily dismissed on January 28, 2026. Plaintiff now requests an order directing the “immediate redaction and removal of all personal identifying information (“PII”)—including Plaintiff’s legal name, address, or any identifying data” from PACER, PacerMonitor, CourtListener, any automated third-party docket-aggregation websites, any public-facing pages generated by the Court, or any publicly viewable filings in this matter. Plaintiff argues that the appearance of his full legal name in court documents threatens his safety, privacy, and well-being.

First, Plaintiff asks the Court to redact certain documents pursuant to Federal Rule of Civil Procedure 5.2. As an initial matter, it is not clear to the Court that any of the information Plaintiff seeks to have redacted falls within the scope of information that may be redacted under Federal Rule of Civil Procedure 5.2. Moreover, as stated in the Local Rules, “[i]t is the responsibility of the filer to ensure full compliance with the redaction requirements of Federal Rule of Civil Procedure 5.2.” Plaintiff himself filed the information at issue without redactions. Thus, the Court cannot retroactively redact any information.

Next, Plaintiff argues the Court has the authority to protect litigants that file cases under pseudonyms. While the Court does have authority to permit a party to file under a pseudonym, the Court will exercise that authority only once a moving party has met their burden pursuant to a motion to use a pseudonym. The “normal presumption in litigation is that parties must use their real names.” To overcome this presumption, a moving party must demonstrate that the “party’s need for anonymity” outweighs the “prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Again, Plaintiff has not filed any motion to file the case under pseudonym nor has he made any argument overcoming the presumption against anonymity in his [application]….

Plaintiff’s [further] argument that his information should be redacted pursuant to the California Safe at Home confidentiality program is also not persuasive. The California Safe at Home program is administered by the California Secretary of State’s Office and offers a substitute mailing address for certain individuals who are in fear for their safety. While the Court recognizes the value of this program and Plaintiff’s membership, he has not provided any explanation as to why this program requires or merits retroactive redaction of documents filed by Plaintiff himself.

Plaintiff’s final argument that redaction is within the Court’s discretion fails for similar reasons. Plaintiff has provided no explanation as to why the Court should exercise its discretion in a manner inapposite to the general presumption against anonymous court filings….

The Court observes that, while it cannot redact these documents, Plaintiff may move to seal portions of the court documents on the record. For any application to be granted, Plaintiff is required to comply with all applicable Federal Rules of Civil Procedure, Local Rules, and this Court’s Standing Order. Failure to do so may result in denial of any subsequent applications.

I’ve been following for some time how the California Safe at Home program affects public access to court records, which is especially important when it comes to tracking repeat litigants. (Smith apparently also filed, as a John Doe, an Americans with Disabilities Act lawsuit against California Southern University just a few days after filing the now-dropped Smith v. Solomon.) Here’s a slightly modified version of a post I wrote about it in 2021, which is still mostly current (though see also this 2023 follow-up):

The California “Safe at Home Confidential Address Program” provides for special forwarding addresses for people who swear that they are “attempting to escape from actual or threatened domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse,” and need to “establish new names or addresses in order to prevent their assailants or probable assailants from finding them” (and possibly provide some corroborating evidence).

And Cal. Code Civ. Proc. § 367.3, enacted in 2019, adds to that:

A protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person.

Such litigants must confidentially inform the other parties and the court of their true identity, but the identity may not appear in the court records. No showing is required of any specific reason for pseudonymity, beyond the person’s participation in the Safe at Home program.

Does this mean that a person, just by joining the Safe at Home program, may also retroactively reopen his past cases, and then get them sealed or pseudonymized? Several recent federal decisions, all apparently involving one litigant (a self-described “avid blogger on record sealing expungement, and First Amendment issues”), deal with the subject.

[1.] The cases make clear that § 367.3 isn’t binding in federal courts: A federal court “is bound by Ninth Circuit precedent regarding public access to court records rather than the California Code of Civil Procedure.” “California’s Government Code and Code of Civil Procedure inform the Court’s exercise of [its] power [to determine whether to make information in the record confidential], but they do not bind the Court because they provide procedural protections in dealing with California’s state government and for litigants in California state courts.” (One court seemed open to the possibility that § 367.3 might apply to cases involving California substantive law, but didn’t reach the issue because the case involved only federal law and Nevada law.)

[2.] Even federal courts seem willing to use their discretion to redact street addresses and e-mail addresses of people covered by § 367.3. See here and here.

[3.] But when it comes to pseudonymization, the record is mixed. For instance, from Chaker-Delnero v. Nevada Federal Credit Union, decided by Magistrate Judge Elayna Youchah (D. Nev.):

The Ninth Circuit held that “the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for a cloak of anonymity.” When determining whether pseudonymity is necessary, the Court will balance the need to protect a person from injury or harassment against the presumption that the identity of parties is public information. However, Plaintiff fails to explain how redacting information contained within public filings in this case, available throughout this dispute that began in 2006, will protect him from some current or future harm or harassment. Plaintiff has not introduced any additional evidence that he is currently a victim of harassment.

And from Del Nero v. NCO Financial Systems, Inc., decided by Judge Joshua Wolson (E.D. Pa.):

The public’s common law right of access extends to the true names of the parties involved in litigation. Under Third Circuit law, litigants may proceed anonymously in exceptional cases where a reasonable fear of severe harm exists. To make that determination, courts consider a lengthy, non-exhaustive list of factors. Most importantly, sealing Mr. Del Nero’s identity will not shield him from further harassment, and leaving his name on the public docket will not subject him to additional harassment. The people who have targeted Mr. Del Nero know who he is, and their harassment has nothing to do with his involvement in this case. Thus, considering the unique facts of this case, the Court will not permit Mr. Del Nero to use a pseudonym in this matter.

Del Nero v. Allstate Ins. Co., decided by Judge Philip Gutierrez (C.D. Cal.), takes the same view, and adds this about the plaintiff’s attempt to seal the entire case based on the supposed identifying information in the record: “The Court has reviewed the record and Plaintiff’s address does not appear anywhere. Although the twenty-one-year-old complaint mentions the name of the city that Plaintiff lived in at the time, Plaintiff has not shown that the Safe At Home program protects the name of the city he lived in over twenty years ago.”

On the other hand, Doe v. Collectco, Inc., decided by Magistrate Judge Daniel Albregts (D. Nev.), rejected the request to “seal the entire record” but allowed pseudonymization:

Here, the Court finds good reason to redact Plaintiff’s address and email and replace his name with “John Doe.” Plaintiff has provided evidence of his participation in the Safe at Home Program, of a threat, and of his connection with a criminal event. And through his motions, Plaintiff seeks to follow the recommendations of the Safe at Home Program, asking—in the alternative to sealing—for the Court to replace his name with “John Doe” and redact his addresses. The Court finds the Southern District of California’s approach to Plaintiffs’ similar requests persuasive ….

And in Doe v. Winn & Sims, decided by Judge Marilyn Huff (S.D. Cal.), the court likewise rejected the “request to seal the entire record” but allowed pseudonymization:

That being said, sufficient cause supports Plaintiff’s supplemental request to redact his name from the docket and allow him to proceed under the pseudonym “John Doe.” The Ninth Circuit allows parties to proceed anonymously when the party’s “need for anonymity” to avoid physical injury outweighs the “prejudice to the opposing party and the public’s interest in knowing the party’s identity.” That is the case here. Additionally, redacting Plaintiff’s name from the record would not prejudice any party because Plaintiff voluntarily dismissed the action over fifteen years ago. Further, the public’s interest in this case primarily centers around the underlying nature of the action, a class action against a debt collection service, not Plaintiff’s identity.

But in a different federal case, in Arizona, the judge did completely seal a case on the same litigant’s request.

The nature of this particular litigant’s case-specific justification for pseudonymization—which federal courts require, given that they aren’t bound by the automatic pseudonymization required by the California statute—is hard to piece together, since some of his motions to seal and many of the exhibits accompanying them are themselves sealed. The best I could see from the documents that haven’t been sealed is that “Plaintiff states that he enrolled in the program because he escaped two near death experiences and received several threats.”

[4.] What about in California court? There, § 367.3 does apply, but the record there too is mixed. The same litigant apparently got the San Diego Superior Court to pseudonymize a lawsuit against him by Scott McMillan—as it happens, a lawsuit that indirectly stems in part from an attempt to get McMillan to remove a case mentioning the litigant from a caselaw repository that McMillan operates. The litigant has moved to do the same as to the appeal of that lawsuit (that motion is pending). Likewise, in a case involving an entirely different litigant (B.M.M. v. Baca, Contra Costa County), there was at least a tentative decision allowing pseudonymity on the strength of § 367.3, though there was also another traditional basis for pseudonymity present—plaintiff was alleged to be a sexual assault victim:

Although this action was filled prior to the enactment of CCP §367.3, Plaintiff qualifies as a “protected person” entitled to use a pseudonym since he is an active participant in an address confidentiality program under Gov. Code §6205. In order to comply with the requirements of CCP §367.3, however, Plaintiff shall file and serve “a confidential information form for this purpose that includes the protected person’s name and other identifying characteristics being excluded or redacted.” CCP §367.3(b)(1). The Court will keep the confidential information form confidential as required by that section of the Code.

Even if Plaintiff did not qualify for the protections of this statute, he still would be entitled to the use of a pseudonym given the sensitive, personal nature of the claims made in this suit since they involve allegations of sexual assault. The Court finds that any prejudice to Defendant from the use of the pseudonym is slight. California courts have frequently recognized the appropriateness of the use of a pseudonym in such circumstances.

On the other hand, in another case involving another litigant (Danon v. Johnson, Los Angeles County), there was at least a tentative decision concluding that § 367.3 wouldn’t ordinarily call for retroactive pseudonymization; the court took the view that such requests remain subject to the standard California sealing rules, Cal. R. Ct. 2.550 & 2.551:

Defendant identifies an overriding interest in Plaintiff’s safety or confidentiality that overcomes the right of public access to the records in this proceeding. In support that a substantial probability exists that the overriding interest will be prejudiced without sealing, Defendant attests to being a victim of sexual crimes by the Plaintiff; that Plaintiff has threatened to track and kill Defendant; and that the public would have access to sensitive details of actions committed against her as a matter of public record. The foregoing supports an interest in Plaintiff’s safety or confidentiality that Code of Civil Procedure section 367.3 supports is an overriding interest, by providing that participants are entitled to proceed pseudonymously.

However, in this case, the court does not find that a substantial probability exists the overriding interest will be prejudiced without redaction and supporting sealing the record. Defendant requests retroactive redaction of Defendant’s name and address from numerous documents in this action over the course of approximately eighteen months. “[T]here is no justification for sealing records that contain only facts already known or available to the public.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 898.)

Prior to Defendant’s first motion to redact documents, the parties proceeded for over thirteen months, both sides filing documents without anonymity…. As a practical matter, Defendant’s identity has been publicly available in this action for a significant time, as well as in the other action.

Next, the court notes that the primary purpose of the Safe at Home program is to provide a means for the victim to keep a new residence address confidential; and the Defendant has not brought facts to the court’s attention that a new residential address used by Defendant has been disclosed in the filings. These facts undermine Defendant’s argument that Defendant’s interest in safety and confidentiality under the Safe at Home program would be prejudiced if the record is not sealed or redacted, as the information disclosing the Defendant’s identity have been public for at least this time, and there is no showing that a new residential address has been disclosed. (Cf. Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (unsealed documents filed before obtaining order to seal inconsistent with intent to enforce rights to obtain sealed records).)

And, returning to the litigant in the federal cases I began with, the California Court of Appeal in April rejected (without detailed explanation) a § 367.3 motion to pseudonymize the litigation in Chaker v. Superior Court.

[5.] And the cases I outline above help show, I think, the value of having people litigate under their own name. Among many other reasons,

• Knowing a party’s name can help writers who cover court cases (like me) see if a lawsuit is part of a broader pattern of litigation, and show readers any patterns that might emerge.
• It can help us figure out whether one of the parties had been found to be a vexatious litigant.
• It can help us figure out whether one of the parties had been adjudicated to have done things that may suggest that he’s not trustworthy.
• It can also help us see if the party had actually been successful in interesting and important past cases (see this First Amendment case and this First Amendment-adjacent case).

And open court records can help courts and opposing parties as well. For instance, in Chaker v. Superior Court, the court apparently searched for past filings by the petitioner to verify certain statements in the petition; that would have been at least much harder if those past filings had been pseudonymized. (It’s possible for a court to keep its files indexed not just by the party’s public identified name, but also by the otherwise sealed actual name, to facilitate such searches by judicial system insiders; but I’m not sure that courts generally do that, and it would be especially difficult if the search requires reviewing files from multiple courts.) Likewise, opposing parties may search for past filings by a party and see whether any are related to the current case, and whether such filings make any admissions or arguments that may be relevant to this case.

The general First Amendment rule, and the general rule under California common law principles, is that parties to lawsuits aren’t pseudonymized unless there’s a real factual basis to justify the pseudonymity (with the substantial exception of cases involving minors):

The Federal Rules of Civil Procedure require plaintiffs to disclose their names in the instrument they file to commence a lawsuit. Public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.

I’m therefore inclined to say that being in the Safe At Home program shouldn’t by itself be a categorical exception from this rule, and that there should at least be a specific showing of exactly how including the protected party’s name in a court filing—especially in an old case, but even in a new one—would actually create a material risk of harm to the party. In any event, I’m writing a law review article about pseudonymous litigation for an upcoming symposium, and I hope to consider such matters in more detail there.

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From Thursday’s Report and Recommendation in Virgil v. Experian Info. Solutions Inc. by Judge Mark Dinsmore (S.D. Ind.):

[T]his is the third time in the last year that the Undersigned has faced a similar issue. We live in a world of rapid technological advancement. A world in which many individuals have concerns that their jobs may be replaced by increasingly educated machines.

The practice of law is not just a job, it is a profession; a profession with standards and ethical responsibilities. One of the most troubling aspects of these situations is the lack of respect for the profession, and the lack of respect by the offending attorneys for their own personal capabilities, that these situations represent.

One would expect that, when individuals choose this profession, they do so in part because they believe they have some talent for the work. One would expect that, after several years of law school, and more years of practice, those attorneys believe they bring some level of value to their clients beyond that of a machine. Yet these situations represent an abdication of those personal and professional responsibilities to those very machines, which to date have not proven themselves up to the task.

While the Undersigned has long recognized the value of the proper and efficient use of technology, my confidence in the profession and the generations of lawyers who have shaped it prevents me from believing that it can ever be replaced by a machine, no matter how advanced. However, the preservation of that profession requires ever increasing levels of diligence and vigilance from each and every attorney and judge involved in the process. Absent that, someday clients may well be better off accepting advice from a machine as opposed to a careless and inattentive attorney. That is a day the profession of law must not allow to come to pass….

Some more details on the particular transgressions in the case:

At the hearing, Mr. Policchio acknowledged that he was fully responsible for the errors in the [five] briefs that he signed and filed. Mr. Policchio was contrite and did not attempt to excuse his lapses in any way; indeed, his reaction to his own failures is best described as mortification. By way of explanation—but not as an excuse—Mr. Policchio explained that he had grossly underestimated the time that litigating this case against dozens of defendants would require and that he was overwhelmed by the workload. In addition, for monetary reasons, Mr. Policchio had terminated his access to LEXIS, which he was accustomed to using for legal research and cite-checking. The Undersigned believes Mr. Policchio’s representation that he has now taken appropriate measures to ensure that no such lapses will occur in the future.

Mr. Policchio’s response to the position he finds himself in is commendable. However, that does not change the fact that Mr. Policchio finds himself in this position because he failed to take the most basic of actions—checking the citations in his own briefs before filing them. As discussed below, this failure constitutes a failure to satisfy a fundamental obligation of an attorney to his client and to the Court.

{The Court notes that most of the cases cited below involve AI-generated hallucinated citations. Mr. Policchio’s explanation for the errant citations in his briefs does not involve the use of AI. Rather, Mr. Policchio stated that the errors were the result of cutting and pasting from documents Mr. Policchio had saved into a case management program when working on prior cases. It is unclear to the Court how that process could have resulted in non-existent citations being created, but the distinction is irrelevant. The issue in this and the cited cases is not the use of AI to assist in legal work; it is the failure to review the validity and content of the cases cited in briefs filed with the Court.} …

The Undersigned, regrettably, has faced this issue in two other cases in the past year. In the first, monetary sanctions of $6,000 were imposed for three briefs containing hallucinated citations. {The Undersigned recommended a $15,000.00 sanction in that case: $5,000 for each of three briefs that contained non-existent citations. The District Judge reduced the sanction to $6,000, taking into account “the steps [the sanctioned attorney] has taken ‘to educate himself on the responsible use of AI in legal practice’ and adhere to ‘the highest standards of professional conduct moving forward.'”} In the second, the Undersigned has recommended a $7,500 sanction for a brief containing hallucinated citations. The attorney’s objection to that recommendation remains pending…. A multitude of other cases around the country have dealt with the same issue….

Given the distressing number of cases calling out this conduct—citing to cases in court filings without checking the accuracy of the citations—it is clear that the imposition of modest sanctions has failed to act as a deterrent. Accordingly, the Undersigned RECOMMENDS that Mr. Policchio be sanctioned $10,000.00 for his Rule 11 violations in this case. The Court finds that no lesser sanction will serve the necessary deterrent purpose…. In addition, the Undersigned REFERS the matter of Mr. Policchio’s misconduct in this case to the Chief Judge pursuant to Local Rule of Disciplinary Enforcement 2(a) for consideration of any further discipline that may be appropriate. Mr. Policchio is ORDERED to provide a copy of this order to his client, … and to file a certification that he has done so within seven days of the date of this order.

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2/16/1833: Barron v. City of Baltimore decided.

 

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If the Federal Bureau of Investigation (FBI) wants to scrutinize a person or organization, it must meet certain legal standards demonstrating evidence to support suspicion of criminal activity before opening an investigation.

Well, sort of. It turns out that if the feds can’t meet the bar to justify an investigation, they can move ahead by calling their surveillance efforts “assessments.” Then, they can use the assessments to justify full investigations—assuming FBI agents care to follow the rules to begin with, which is not always the case. That’s led to the feds snooping on roughly 1,100 religious figures, journalists, activists, and public officials in recent years.

Assisted by the Cato Institute, about four years ago, Reps. Jamie Raskin (D–Md.) and Nancy Mace (R–S.C.) asked the Government Accountability Office (GAO) to look into the use and abuse of FBI assessments as end-runs around restrictions on investigative authority. Cato then sued for more information about assessments. The lawsuit proceeds, but the GAO did produce a “for official use only” report intended to be read and destroyed by recipients. Fortunately, Racket News‘s Ryan Lovelace got hold of a copy and wrote it up—and the Cato Institute posted the report to the internet.

Snooping ‘Without a Particular Factual Predication’

According to the GAO, “the Federal Bureau of Investigation (FBI) can open assessments with an authorized purpose and clearly defined objective and without a particular factual predication.” That’s a pretty low bar for delving into people’s lives. By contrast, “initiating an investigation requires predication, such as allegations, reports, facts, or circumstances indicative of possible criminal or national security threatening activity.” According to the Attorney General’s Guidelines for Domestic FBI Operations, published in 2008, “assessments may be carried out to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence.” But they can also be used as a gateway to higher threshold investigations.

Assessments come in several forms. Per the GAO report, Type I/II are targeted at individuals and organizations “relating to activities…constituting violations of federal criminal law or threats to the national security.” Type III look at “actual or potential threats within a field office’s area of responsibility,” Type IV at “internal FBI information gaps,” Type V assess targeted individuals’ suitability and credibility as sources, and Type VI seek information regarding foreign intelligence. Type I/II and III are considered the most concerning categories and “the FBI opened approximately 127,000 Type I/II and Type III assessments, comprising about 124,000 Type I/II and 2,800 Type III assessments from calendar year 2018 to 2024.”

Assessments Become Investigations for Half of Cases Targeting Religious and Political Figures

According to the GAO, “about 14 percent of Type I/II assessments were converted into an investigation, which has different requirements to open.” But that conversion rate can go higher when it involves domestic political concerns: “Assessments concerning categories of individuals or organizations specified in the Domestic Investigations and Operations Guide (e.g., domestic political candidate or religious organization) are designated as sensitive investigative matters (SIM.)” Also included in the SIM category are public officials, political organizations, and journalists. “Among the approximate 1,100 Type I/II assessments with SIM designation, the FBI converted 48 percent into investigations in contrast to 14 percent of all the approximate 124,000 Type I/II assessments into investigations.” In short, “sensitive” assessments are much more likely than others to become full investigations.

Between 2018 and 2024, according to the GAO report, “the FBI designated approximately 1,100 Type I/ll and 100 Type III assessments as SIMs.” Those numbers included members of the news media, political candidates, political organizations and prominent members thereof, religious figures, academics, and (the largest category) public officials.

‘The FBI Can Gather a Dossier on Anyone They Choose’

“Today, the FBI can gather a dossier on anyone they choose. And the amount of information available is so much broader than anything J. Edgar Hoover could have imagined,” Mike German, a former FBI special agent, told Racket News’s Lovelace.

The FBI occasionally reviews its internal performance and its agents’ adherence to guidelines. It’s not surprising to learn that a government agency that found the rules for initiating formal investigations too restrictive sometimes has difficulty coloring within the lines when it comes to the looser standards for assessments. “Of the 988 Type I/II assessments and ‘information only’ incidents reviewed from 2018 through 2024, approximately 5 percent included instances of insufficient authorized purposes and approximately 7 percent included instances of unauthorized investigative methods,” according to the GAO report. Abuses weren’t confined to a few agents or rogue offices. Twenty-four of the 56 FBI field offices reviewed from 2021 to 2024 had at least occasionally used unauthorized investigative methods for “information only” purposes used to decide whether to open assessments.

When reviews found evidence of such abuses, the results weren’t shared with other offices to discourage similar transgressions. That’s a problem because “of the 15 FBI field offices that received a National Security Reviews in 2023, eight received an identical recommendation pertaining to noncompliance with the requirements for an authorized purpose.” FBI agents far and wide aren’t just violating restrictions on assessments, they’re breaking the same rules in the same ways.

Worse, observes the GAO report, “The FBI relies on staff to self-report noncompliance with assessment policy requirements. The FBI noted that self-reporting likely undercounts actual noncompliance, but has not assessed if other tools could identify it.”

Assessments are ‘a Bill of Rights-Related Crisis’

So, we know the FBI created a looser set of rules for scrutinizing the public and it admits that its agents are abusing even those eased restrictions. But that’s probably only the tip of the iceberg.

“What should be obvious now is that the FBI’s misuse of Assessments represents a Bill of Rights-related crisis of far greater proportions than the equally objectionable Foreign Intelligence Surveillance Act (FISA) Section 702 electronic surveillance power, which is set to expire on April 20, 2026,” warns Patrick G. Eddington, a senior fellow at the Cato Institute and former CIA analyst. “Now would be an excellent time for Congress to initiate a Church Committee-style review of every single existing surveillance program being employed by executive branch elements.”

The FBI has frequently been caught spying on Americans. It’s obvious the feds are dedicated to continued domestic snooping, even if that requires working around restrictions on their activities.

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