LITIGATING ANONYMOUSLY?

In this recent case, plaintiff alleged a hostile work environment under the New York State and City Human Rights Laws and sought to proceed anonymously.

John Doe v. The City of New York et al, 511209/2020, 2021 N.Y. Slip Op. 50916(U), 2021 WL 4468869 (Sup Ct, Sept. 29, 2021):

"Lastly, the determination of whether to allow a plaintiff to proceed under a pseudonym, requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant." Anonymous v. Lerner, 124 A.D.3d 487; 998 N.Y.S.2d 619 (1st Dept. 2015). Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously. Id. Although plaintiff wishes to proceed anonymously, he has not made any assertions that he feared embarrassment, economic harm from the public disclosure of his identity, social stigmatization, professional repercussions or social isolation from his peers and colleagues. Doe v. Yeshiva Univ., 195 A.D.3d 565; 146 N.Y.S.3d 482 (1st Dept. 2021). Plaintiff only states that the alleged touching of his leg is sensitive and sexual in nature, and warrants proceeding anonymously."

LITIGATING ANONYMOUSLY NOT ALLOWED

On December 15, I reported on a case (Doe v. REDACTED, 2020 NY Slip Op 33766 - NY: Supreme Court November 12, 2020) which granted the request to litigate anonymously. Here, another justice in the same county, denied the request.

FL v. Doe, 2020 NY Slip Op 33817 - NY: Supreme Court, November 13, 2020:

"The court will limit the public nature of judicial proceedings only when unusual circumstances require such a limitation. Wilder v. Fresenius Med. Care Holdings, Inc., 175 A.D.3d 406, 410 (1st Dep't 2019); Anonymous v. Lerner, 124 A.D.3d 487, 487 (1st Dep't 2015); Anonymous v. Anonymous, 27 A.D.3d 356, 361 (1st Dep't 2006). Plaintiff's request to maintain her action anonymously requires the court to balance her privacy interest against the presumption favoring open trials and against any prejudice to defendant. Anonymous v. Lerner, 124 A.D.3d at 487; Danco Labs. v. Chemical Works of Gedeon Richter, 274 A.D.2d 1, 7-8 (1st Dep't 2000).

In opposition to plaintiff's motion, defendant maintains that plaintiff fails to show the privacy interest justifying her request and that redacting her name from the litigation documents would create unnecessary, excessive costs. In reply, plaintiff attests that she seeks to proceed anonymously to protect her minor child from Unnecessary bullying and embarrassment. Although plaintiff disagrees that redaction costs will be excessive, she is willing to bear any additional costs.

The complaint, however, does not even refer to her minor child. Its single claim of legal malpractice during a divorce action alleges that defendants negligently used a forensic accountant's expert report causing plaintiff damages of approximately $3,000,000. Plaintiff does not explain how litigation of this issue will cause her or her daughter public humiliation and embarrassment, which in any event are insufficient grounds to allow plaintiff to proceed anonymously. Anonymous v. Lerner, 124 A.D.3d at 487. Plaintiff's daughter, her daughter's friends, and their families are likely already aware of the matrimonial dispute, further reducing the possibility that this action now will cause bullying and embarrassment. While plaintiff claims that sensitive personal details were involved in the underlying matrimonial action, the documents in the matrimonial action remain under seal. To the extent that those details may resurface in this action, they may be subject to redaction or a confidentiality order. See Anonymous v. New York State Dept. of Health, State Bd. for Professional Med. Conduct, 65 A.D.3d 491, 494 (1st Dep't 2009).

Finally, plaintiff's offer of the same protection of anonymity to defendant attorneys is an empty promise, since their identities are ascertainable in the matrimonial action's reported decisions. See F.L. v. J.M., 173 A.D.3d 428 (1st Dep't 2019). Thus, granting the relief plaintiff requests would prejudice defendants by allowing her to damage defendants' professional reputation while protecting her own. Anonymous v. Lerner, 124 A.D.3d at 487."

LITIGATING ANONYMOUSLY ALLOWED

Doe v. VAJPAYEE, 2020 NY Slip Op 33766 - NY: Supreme Court November 12, 2020:

"Plaintiff claims that, in or around August 2019, when she was 20 years of age, she began working for defendant's family as a nanny and that the latter verbally and sexually abused and raped her. In her complaint against defendant, filed in July 2020, plaintiff, suing under the pseudonym Jane Doe, alleged, inter alia, claims of sexual discrimination and retaliation under the New York State Human Rights Law and the New York City Human Rights Law, intentional infliction of emotional distress, and assault and battery. Doc. 2.^[1]

In August 2020, plaintiff filed the instant order to show cause seeking to proceed under a pseudonym, including the redaction of her name from the affidavit she submits in support of the motion. Docs. 6, 9. In their affidavit and affirmation submitted in support of the motion, respectively, plaintiff and her attorney assert that plaintiff should be permitted to proceed under a pseudonym on the grounds that this case involves issues of a highly sensitive and personal nature; that, by revealing her identity, plaintiff, an aspiring dancer, actress, and model, could be deterred from prosecuting this claim since it could stigmatize her in those industries; and that proceeding under her actual name could cause her further psychological harm. Docs. 4 and 6. Plaintiff also submits the affidavit of her treating licensed master social worker, who represents that "the potential consequences of filing under [plaintiff's] legal name are so great that it would be unsafe for [plaintiff] to access and exercise her legal right to redress without the protection of anonymity afforded by the court." Doc. 7 at par. 13.

In opposition to the motion, defendant and his attorney submit an affidavit and affirmation (Docs. 14 and 15, respectively),^[2] asserting that the motion must be denied because, among other things, it would cause him "vast prejudice" and since plaintiff has not demonstrated good cause for sealing her affidavit. Alternatively, defendant requests that this Court permit him to proceed under the pseudonym John Doe in the event plaintiff's motion is granted.

LEGAL CONCLUSIONS:

The determination of whether to allow a plaintiff to proceed anonymously requires the court to "use its discretion in balancing plaintiffs privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant" (Anonymous v Lerner, 124 AD3d 487 citing Stevens v Brown, 2012 NY Misc LEXIS 3340, 2012 NY Slip Op 31823[U], *8-9 [Sup Ct, NY County 2012], citing Doe v Szul Jewelry, Inc., 2008 NY Misc LEXIS 8733, 2008 NY Slip Op 31382[U], *11 [Sup Ct, NY County 2008]). Thus, the court considers the following factors: [1] [w]hether the justification asserted ... 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; [2] whether the party seeking anonymity has an illegitimate ulterior motive; [3] the extent to which the identity of the litigant has been kept confidential; [4] whether identification poses a risk of mental or physical harm, harassment, ridicule, or personal embarrassment; [5] whether the case involves information of the utmost intimacy; [6] whether the action is against a governmental or private entity; [7] the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; [8] whether revealing the identity of the party will dissuade the party from bringing the lawsuit; [9] whether the opposition to anonymity has an illegitimate basis; [and] [10] [] whether the other side will be prejudiced by use of the pseudonym. (Szul, id. 2008 N.Y. Misc. LEXIS 8733 at *16-17).

Doe v Spencer Cox Clinic, 59 Misc 3d 1210(A), 2018 NY Slip Op 50461(U), *1-2 (Sup Ct, NY County 2018).

Here, there is no question that plaintiff seeks to preserve privacy in a case of a sensitive and highly personal nature involving matters of the utmost intimacy; there is no indication that plaintiff has an illegitimate ulterior motive in seeking to preserve her privacy; plaintiff's identity has thus far been kept confidential in this matter; plaintiff's treating social worker opines that plaintiff's mental state may be adversely affected if she has to divulge her identity in this action; this action is not against a governmental agency and, thus, there is no need for increased transparency; there are no compelling factors militating in favor of the public's need to know plaintiff's identity; plaintiff and her social worker represent that she (plaintiff) may be hesitant to proceed with this unless she proceeds under a pseudonym; and defendant has failed to establish that he would be prejudiced in plaintiff were permitted to proceed under a pseudonym. Thus, this Court, in its discretion, determines that plaintiff may proceed under the pseudonym Jane Doe.

Defendant's request that he be permitted to proceed under a pseudonym if plaintiff is allowed to do so is denied insofar as he did not seek this affirmative relief by way of cross motion. See CPLR 2214(b); 2215.

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[1] Curiously, although the complaint (Doc. 2) is listed in NYSCEF as having been filed July 24, 2020, the document itself bears a stamp reflecting that it was filed August 4, 2020.

[2] This Court notes that defendant's opposition papers are mistakenly labeled in NYSCEF as having been filed in opposition to a "cross motion" and not in opposition to plaintiff's order to show cause. Docs. 14-15. Additionally, although plaintiff submits reply papers, she was not given permission to do so. Docs. 9, 17-19."