Why Not Pseudonymous Litigation? Burdens on the Judicial Process
I’m putting up some excerpts from my new draft article, The Law of Pseudonymous Litigation, hoping to get some feedback. This one is on why some courts view pseudonymity as burdening the judicial process; I’ll have more soon on reasons that support pseudonymity.
Pseudonymity can also cause difficulties in the fact-finding process, especially as the case gets closer to trial.
A nonanonymous witness, including a party witness, “may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account.” And if the party witness is not telling the truth, “there is certainly a countervailing public interest in knowing the [witness’s] identity.” It’s hard to tell the extent of this tendency, but it probably exists in some measure.
When the Court recognized a public right of access to criminal trials, in Richmond Newspapers, Inc. v. Virginia, it noted the possibility that such publicity can cause otherwise unknown witnesses to come forward. Witnesses might likewise come forward in a civil case: “It is conceivable that witnesses, upon the disclosure of Doe’s name, will ‘step forward [at trial] with valuable information about the events or the credibility of witnesses.'” And if only one side is pseudonymous, “information about only [the other] side may thus come to light.” At the same time, such claims are by their nature hypothetical, and some judges view them as too speculative.
A party will often need to disclose a pseudonymous adversary’s identity in conducting discovery. If you want to ask a witness questions about the plaintiff, you have to mention the plaintiff’s name. But if the court really wants to keep the plaintiff’s identity secret, then the witness would have to be put under some sort of protective order to remain quiet about that identity as well.
Many people are likely to resist becoming witnesses if that means agreeing to a protective order, at least if they have no personal stake in the matter. Legally enforceable confidentiality obligations are a burden, especially when the obligation relates to an acquaintance. If you learn your colleague Mary Jones has accused your mutual employer of sexual harassment, you may not want to be legally bound to indefinitely keep that secret fact segregated from all the other things you know about Jones, and all the other things you might say about her to coworkers or friends.
We lawyers have to keep such secrets about people as part of our jobs, but we’re used to it, and we’re handsomely compensated for it. Not so with prospective witnesses, who may already be skittish about the justice system. And having to incur such an unpaid-for obligation may be enough to deter some witnesses from testifying.
This concern has discouraged some courts from allowing pseudonymity. In one of the sexual assault lawsuits against Harvey Weinstein, for instance, the court reasoned:
The Court cannot accept Plaintiff’s “mere speculation” that Weinstein’s defense would not be prejudiced by the condition that he “not disclose her name to the public,” with no clear definition of what would constitute disclosure to “the public.” Plaintiff implicitly concedes that Weinstein might need to disclose her name to at least some third parties, since she appears to suggests that he redact her name from witness depositions.
Some courts have rejected pseudonymity for would-be class representative on the grounds that it “may … preclude potential class members from properly evaluating the qualifications of the class representative.” Others have disagreed.
Letting a party testify pseudonymously might also prejudice the jury, by “risk[ing] … giving [the party’s] claim greater stature or dignity,” or by implicitly “tarnish[ing]” a defendant by conveying to the jury “the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff].” And it could also make “witnesses, who know Plaintiff by her true name, … come across as less credible if they are struggling to remember to use Plaintiff’s pseudonym.” Query whether these risks could be minimized through suitable jury instructions.
Especially in oral testimony, pseudonyms can be confusing to the witnesses and thus to jurors. To quote one such case,
[E]vidence submitted to the Court highlights the problems pseudonyms may pose at trial and the confusion it will undoubtably produce, despite counsel’s best efforts to adequately prepare their respective clients. This was apparent from the parties’ depositions: “Moira Hathaway” could not recall her pseudonym’s first name, and “Hillary Lawson” could not recall her close friend and co-plaintiff’s pseudonym. As one court in this circuit has already recognized, “conduct[ing] a trial in such an atmosphere, all the while using pseudonyms, promises trouble and confusion.” In the event a witness inadvertently testified to a plaintiff’s real name, the Court would have to immediately excuse the jury in the middle of critical testimony, admonish the witness, and provide a limiting instruction, which may signal to the jury that either the attorney or the witness acted improperly.
Likewise, in a student lawsuit over a medical school’s disciplinary actions:
[Defendant] argues that witnesses, who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff’s pseudonym. Plaintiff retorts that this argument “just does not make sense” because the witnesses are medical professionals—or medical students—who often use the name “Jane Doe” to refer to unidentified female patients. But unlike in the treatment context, these witnesses do know Plaintiff’s true name and have used that name in all their previous interactions. The Court agrees that there is a risk of prejudice to Defendant.
If you are sued, one of the first things you might want to do is to look up any other lawsuits the plaintiff had filed, to see if they may reveal some facts that might be relevant to this case. Have they made similar allegations in other cases? Have they made allegations arising out of the same fact pattern, which might bear on the allegations against you? For instance, if the plaintiff claims that your product injured him, might he have sued someone else before over the same injury (e.g., claiming that it was the result of an accident or of medical malpractice)?
Were there some findings in those lawsuits that might have collateral estoppel effects? Did the plaintiff make some statements that could be viewed as judicial admissions, or could in any event undermine the plaintiff’s case? Did the plaintiff say something about his domicile, for instance, that might be relevant to whether his citizenship is diverse from yours? Has the plaintiff filed so many losing cases in the past that you might be able to have him declared a frivolous litigant?
Conversely, if you’re a plaintiff, you might want to research the defendant: Have there been past verdicts against the defendant in similar past cases? Has the defendant you’re suing for malpractice or sexual harassment, for instance, been found liable in similar cases before? You might be able to check the records of
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