Court Report Looks At Issue Of Filing Suits Under Pseudonyms

By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari, PC. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage . He can be reached at [email protected]

Litigation often involves sensitive personal issues that parties are reluctant to publicly disclose. Often in such cases, the parties resort to filing suit under a pseudonym to protect the identity of one or both of the parties. Cases involving disability benefits inherently relate to personal and confidential medical issues, yet courts rarely permit pseudonymous filings in such cases.

A recent report and recommendation issued by a federal magistrate judge in Minnesota in Doe v. Liberty Life Assur.Co. of Boston, 2013 U.S.Dist.LEXIS 150243 (D.Minn. Sept. 26, 2013) thoughtfully explores the parameters of this issue and explains the rationale both for permitting litigants to file suit anonymously and the strong public policy against the use of pseudonyms.

In this ruling, the court issued a recommendation which determined that the plaintiff lacked a reasonable basis for deviating from Federal Rule of Civil Procedure 10(a), which generally requires parties to identify themselves.

The court surveyed cases from around the country, which state "a strong presumption against allowing parties to use a pseudonym" (citing Luckett v. Beaudet, 21 F. Supp. 2d 1029, 1029 (D. Minn. 1998)) and which found the use of a pseudonym appropriate only in "the exceptional case." (citing Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011)).

The court explained that the "public has a First Amendment right to access judicial proceedings and part of that right is knowing the identity of the parties." 21 F. Supp. 2d at 1029).

The Luckett ruling relied on by the court sets forth the circumstances that permit a party to proceed anonymously: 1) If the plaintiff is challenging certain governmental activity; 2) if the plaintiff would have "to disclose information of the utmost intimacy" in pursuing his claims; or 3) if the plaintiff would be compelled to admit an intention to commit a criminal act, thereby exposing himself to prosecution. Id. (quoting Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981)).

The court determined from the record before it that none of the exceptions were met, even though suits involving disability benefits require disclosure of the plaintiff's medical condition, which sometimes involves psychiatric disorders. The court deemed such claims routine and pointed out that claims involving denial or termination of disability benefits are regularly prosecuted in the plaintiff's real name.

The court pointed to MacInnis v. Cigna Group Ins. Co. of Am., 379 F. Supp. 2d 89, 90 (D. Mass. 2005), where the court ruled that disclosure of the plaintiff's psychiatric condition is not a sufficiently exceptional circumstance as to require anonymity.

Instead, protection of intimate private facts is accomplished by a party seeking leave to file a redacted version of records or filing the document under seal, consistent with Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997), where psychiatric records were permitted to be filed under seal. The court therefore concluded by stating:

"This is not a case where the mere disclosure of plaintiff's identity, alone, risks harm to himself or a nonparty. Nor will plaintiff be required to disclose information of the utmost intimacy. The risk of harm is created only if the private information is placed on the public docket and this is entirely within the control of the parties."

The Doe v. Blue Cross case from the 7th U.S. Circuit Court of Appeals that was cited in this ruling is extremely instructive on the issue of when it is permissible to file suit anonymously. The dispute in that case related to reimbursement for psychiatric treatment and the plaintiff feared the litigation would result in disclosure of his psychiatric treatment records.

Although the request to proceed anonymously was not opposed and the district judge granted the request, the court of appeals found the need to comment and made it clear that "the privilege of suing or defending under a fictitious name should not be granted automatically even if the opposing party does not object. The use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." 112 F.3d at 872.

"Identification of the parties involved in litigation is an important dimension of publicness. The people have a right to know who is using their courts." Id.

The court acknowledged that good reason exists to use fictitious names to "protect the privacy of children, rape victims and other particularly vulnerable parties or witnesses." However, where a medical issue is involved, that alone would not necessarily be grounds for permitting suit to be filed under a pseudonym.

The court remarked that even where persons suffer from a mental illness such as obsessive-compulsive disorder, that would not be "such a badge of infamy or humiliation in the modern world that its presence should be an automatic ground for concealing the identity of a party to a federal suit. To make it such would be to propagate the view that mental illness is shameful." Id.

The solution, according to the court, is to place the psychiatric records under seal.