Fourth Circuit Finds District Court's Non-Anonymity Order Was an Abuse of Discretion

Should a plaintiff be able to use a pseudonym when suing a defendant, or should she have to use her real name? The recent opinion of the Fourth Circuit in Doe v. Sidar, 2024 WL 696535 (4th Cir. 2024), does a good job of laying out how that court has dealt with this issue.

In Sidar, the plaintiff used a pseudonym in suing the defendant for sexual assault. After the defendant refused to comply with its discovery orders, the district court entered a default judgment against him and ordered the woman to use her real name going forward. The plaintiff thereafter appealed this non-anonymity order.

In addressing this issue, the Fourth Circuit noted that

This Court has also identified “five nonexhaustive factors for district courts to consider when deciding motions to proceed by pseudonym.”...The first focuses on why the requesting party is seeking anonymity, asking whether “the justification” “is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of [a] sensitive and highly personal nature.”...The second factor directs the court's attention to risks of denying anonymity by asking “whether identification [of the requesting party] poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent nonparties.”...The third likewise focuses on the claimed need for anonymity by considering “the ages of the persons whose privacy interests are sought to be protected.”...In contrast, the fourth and fifth factors focus on the legitimate interests on the other side by asking “whether the action is against a governmental or private party” and assessing “the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.”

Applying these factors, the Fourth Circuit found the district court's non-anonymity order was an abuse of discretion, ruling as follows:

First, the district court “fail[ed] to adequately take into account” the nature and strength of Doe's legitimate interest in anonymity....The district court acknowledged that “the underlying facts of this case are sensitive.”...But the court thought Doe failed to “demonstrate[ ] the level of need for anonymity sufficient to allow nondisclosure” because she “chose[ ] to bring” the “suit in the United States” and there are “no allegations” that Doe herself engaged in “illegal activity.”...

That explanation seriously understates Doe's legitimate privacy interests. To begin, the fact that Doe chose “to bring this civil suit in the United States and seek” damages...will be true of every plaintiff seeking to proceed anonymously in federal court and is thus irrelevant to the required case-specific analysis.

 

In addition, the issues here are not merely sensitive—they involve intimate details of Doe's sexual assault and resulting “psychological trauma.”...Courts have recognized “a plaintiff's interest in preserving privacy where the allegations concern sexual assault.”...In fact, this Court has noted that “the practice of closing courtrooms to members of the public while a victim of sex crimes testifies”—a step far more drastic than the “limited form of closure” represented by allowing a sexual assault victim to use a pseudonym—“has not been uncommon.”...For that reason, “[f]ictitious names are” often “allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses.”...The importance of these privacy interests is not limited to criminal cases. To the contrary, there is an entire provision of the Federal Rules of Evidence whose purpose is to protect the privacy interests of sexual assault victims—including alleged victims—in both criminal and civil cases. See Fed. R. Evid. 412.This case thus implicates “privacy or confidentiality concerns” of the highest order....

 

Second, the district court's analysis was legally flawed in its suggestion that fairness considerations invariably cut against anonymity unless the opposing party is also proceeding anonymously. The court said “[f]airness require[d]” Doe to use her legal name at trial because Doe “brought this public civil suit, making allegations against [Sidar]” and Sidar “continues in this suit using his legal name.”...The only case-specific fact mentioned by the district court in this portion of its opinion is that Sidar “has now been found liable through a default judgment” (id.)—something that, as we will explain, cuts sharply in Doe's favor....The district court thus appears to have endorsed a “flat rule” that the fairness factor always counsels against letting a plaintiff in a civil action use a pseudonym at trial unless the defendant is also using one....

 

That is not the law. This Court has never endorsed such a principle, which would stray from the “particularized assessment of the equities” mandated by James....Indeed, in James this Court vacated an order forbidding the plaintiffs from testifying anonymously even though no one was suggesting the defendant should also be anonymous....(We note, moreover, that Sidar has never requested anonymity in this case or in the state court proceedings.)

 

Third, the district court's decision was based on a “flawed...legal premise[ ]” because it did not grapple with the fact that its entry of a default judgment tipped powerfully in Doe's favor....To the extent the court referenced the default judgment at all, it appeared to view it as cutting against Doe's request for anonymity, mentioning it only in the portion of its opinion concluding that “[f]airness require[d]” Doe to use her legal name going forward....

 

That too was legal error. That Sidar has already been found liable for raping Doe and that further proceedings will be limited to determining the damages he must pay significantly reduces any “risk of unfairness to” Sidar resulting from Doe's continued anonymity....

 

To see why, consider two sources of potential unfairness when a plaintiff seeks to proceed anonymously while making allegations against a known defendant. For one, there is a concern that anonymity may serve as a “shield behind which” false or “defamatory charges may be launched without shame or liability,”...thus creating the risk a blameless defendant will suffer embarrassment and reputational damage merely by being sued. There is also the one-sidedness of allowing a plaintiff to “have [their] cake and eat it too” by gaining the ability to stay anonymous if they lose—thus avoiding reputational harms from disclosing the underlying facts or bringing an unsuccessful lawsuit—while retaining the power to reveal their identity if they win....

 

Those risks evaporate once liability has been established. At this point, Doe is not seeking to keep her identity secret because she fears she might lose this case. There is also no risk Sidar's reputation will be damaged by false accusations of wrongdoing. The district court's default judgment conclusively establishes that Doe is a victim and Sidar raped her, and nothing that happens at a damages-only trial can change that.

The district court's default judgment also reduces the risk that Sidar would suffer any unfair prejudice at trial. Where liability has not been established, there is at least some risk that jurors may view a decision to let one side proceed anonymously as suggesting that the anonymous party's claims are valid or that it has the better case than the non-anonymous party....But any such concerns are weakened—if not eliminated—here because the jury will have no need to guess about the court's view of the merits of Doe's claims. Instead, the court will tell the jury that Doe's claims succeed as a matter of law and that the jury may not revisit that issue. It is hard to see how Sidar will suffer any extra prejudice from letting Doe use a pseudonym in a case where the jury will be told it must take as a given that he raped her.

-CM