Examining when a plaintiff can remain anonymous and when he/she can’t

This article was initially published in the Chicago Daily Law Bulletin on March 8, 2018.

By Mark D. DeBofsky

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

A recent ruling issued by a federal court in Oregon addressed the question of when a litigant can maintain a case anonymously or under a pseudonym.

In A.G. v. Unum Life Insurance Company of America, 2018 WL 903463 (D. Ore., Feb. 14, 2018), the plaintiff, who had been an associate attorney at the law firm of Dickstein Shapiro LLP and who was seeking disability benefits due to a psychiatric condition, sought to litigate a claim under a pseudonym. The defendant moved to compel disclosure of plaintiff's full name.

Federal Rule of Civil Procedure 10(a) states, "The title of the complaint must name all the parties." However, litigants are permitted to proceed anonymously or under a pseudonym under limited circumstances when nondisclosure is necessary to "protect a person from harassment, injury, ridicule or personal embarrassment." Does I thru XII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000). The issue boils down to whether the need for anonymity outweighs the prejudice to the opposing party and the public's interest in knowing the party's identity.

The court explained that some circuits have adopted a balancing test to determine under the specific circumstances whether anonymity is appropriate, but in the 9th U.S. Circuit Court of Appeals, courts examine the following factors: "(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; (3) the anonymous party's vulnerability to such retaliation; (4) the precise prejudice at each stage of the proceedings to the opposing party, and whether the proceedings may be structured so as to mitigate that prejudice; and (5) whether the public interest would be best served by requiring that the litigants reveal their identities." (citing Advanced Textile, 214 F.3d. at 1068).

The first two factors are deemed the most important and are generally considered together.

Applying those factors, the court refused to permit A.G. to proceed without revealing a full name despite the plaintiff's argument asserting a risk that potential legal employers would be unwilling to hire the plaintiff if the plaintiff returned to the field of law.

The court was unpersuaded and deemed the argument comparable to the one made in Doe v. Amazon, 2011 WL 13073281(W.D. Wash. 2011), where an actress sued Amazon claiming that a database it owned, IMDB.com, improperly disclosed her age and that if her age were to become known, she would become blacklisted in the film industry.

The court ruled against the actress, finding that while embarrassment, ridicule and retaliation were serious harms, the threat was insufficient to allow her to proceed anonymously.

The court here observed that the plaintiff's fear of future harm assumed the occurrence of several events: "(1) plaintiff sufficiently recovers to return to the practice of law; (2) plaintiff actually seeks out legal work; (3) a potential legal employer discovers the medical information in this case; and (4) the potential employer refuses to hire plaintiff based on this information."

Although the court acknowledged the plaintiff's concern that a search of legal databases could reveal the plaintiff's condition, there were no actual threats or certainty that the plaintiff would be denied employment.

The plaintiff in this case no doubt had legitimate concerns about prospective employment given the ease with which an online search can reveal facts about a person that may go back many years. There is no "right to be forgotten" in the United States and filing a lawsuit leaves a paper trail that is forever searchable.

However, although the plaintiff lost here, in Doe v. Standard Insurance Co., 2015 WL 5778566 (D. Maine, Oct. 2, 2015), the court exhaustively cataloged cases before deciding the better course would be to permit the plaintiff to proceed anonymously.

Other cases in which litigants have been allowed to proceed without using their full names have favored anonymous or pseudonymous litigation, especially where issues involving mental health are at stake. Examples include Doe v. County of Cook, 162 F.3d 491, 498 (7th Cir. 1998) ("In a few cases a justified interest in privacy warrants concealment of a litigant's name"), and Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004) ("Judicial proceedings are supposed to be open, as these cases make clear, in order to enable the proceedings to be monitored by the public. ... Not that concealment of a party's name is always improper. The presumption that the parties' identities are public information, and the possible prejudice to the opposing party from concealment, can be rebutted by showing that the harm to the plaintiff ... exceeds the likely harm from concealment").

Another example was a case involving a claimant who was seeking reimbursement for medical expenses relating to residential treatment for an eating disorder, a serious mental health condition. The court permitted the plaintiff to litigate under a pseudonym.

"In this instance," the court explained, "that balancing of harms favors Lauren's opposition to the [p]lan's motion - there are indeed 'compelling reasons of personal privacy' at issue. Lauren's response confirms that her severe mental illnesses, including but not limited to the long-standing eating disorder from which this young woman suffers, create death risks and a threat to her recovery that public disclosure would entail.

"In summary, this is truly the exceptional case that rebuts the general presumption referred to earlier, because the identified harm and risk of harm to Lauren that public disclosure of her identity would create clearly exceeds the likely harm (if any) from concealment. Accordingly, the [p]lan's motion is denied." Lauren B. v. Baxter International Inc. & Subsidiaries Welfare Benefit Plan for Active Employees, 298 F.R.D. 571, 573 (N.D. Ill. 2014).

Because courts in the United States are public proceedings, it is always a difficult decision whether information, including a litigant's name, should be withheld.

A key consideration in favor of nondisclosure is a desire to have cases heard on their merits and that litigants should not be deterred by fear or shame. The reality is that many individuals will forgo vindication of their rights rather than having their most private and personal medical facts exposed to public scrutiny.

A careful balancing of the public's right to know and an individual's right to redress legal grievances without fear of physical or severe emotional harm can usually lead to the correct result.

Note: Our firm was involved in the Lauren B. case cited in this article.