From Doe v. Roe, decided today by Fifth Circuit Judges Jennifer Walker Elrod, Carolyn Dineen King, and Carl Stewart:
Upon learning of Jane Roe’s forthcoming California lawsuit alleging sexual assault and harassment, John Doe filed suit against Roe in the Southern District of Mississippi, asserting that Roe was attempting to extort and defame him. Roe sought to appear pseudonymously in the Mississippi action, but the district court refused the request. Roe appeals that ruling, raising several challenges to the district court’s analysis. Because we agree with some of Roe’s arguments, we reverse in part and remand for the district court to reconsider whether Roe should be permitted to proceed under a pseudonym….
Whenever a party seeks pseudonymity, courts must weigh whether the usual policy of disclosing the parties’ identities yields to a concern for privacy in a matter that is exceptionally private. … The district court concluded that Roe was not entitled to pseudonymity … in part because of her status as a defendant and due to a waiver finding. … But a defendant’s status carries no weight in determining whether pseudonymity is appropriate. A defendant does not deserve less protection of anonymity than a plaintiff simply because she was summoned to court first….
Roe contends that allegations of sexual assault involve matters of the utmost intimacy [and can thus justify pseudonymity]. We agree. There is little doubt that requiring alleged rape and sexual assault victims to proceed “under their real identities” would force them to disclose information of the deepest personal nature. It is therefore unsurprising that many courts have allowed alleged victims of sexual misconduct to proceed under a pseudonym, including cases where they are defendants sued for libel and related torts.
Relatedly, Roe argues that she took affirmative steps to preserve her anonymity, that her identity is not a matter of public record, and that she has consistently demonstrated a strong preference for confidentiality. She emphasizes these points because the district court found that her privacy interest was “weakened” once the public record contained references to her identity. In reaching that conclusion, the district court relied on the detailed manner in which Roe described her California complaint, on Doe’s public filing of an amended complaint in this case bearing Roe’s real name, on Roe’s real name appearing in open court in this case, and on Roe’s inadvertent disclosures of her name in the California matter.
We side with Roe. First, the proverbial cat is not necessarily out of the bag here. True, information that is publicly accessible cannot be hidden by courts. Yet the notion that internet sleuths might speculate about Roe’s identity because her California filing aligns with her public profile does not amount to a formal public disclosure of Roe’s identity. The public record exposure that occurred for short periods resulted either from Doe’s actions (which Roe objected to) or from Roe’s inadvertent disclosures that counsel corrected and did not constitute a waiver (as we discuss below)….
Finally, Roe maintains that she did not waive her right to proceed anonymously. We agree. Roe never relinquished the option to request pseudonymity because her conduct did not amount to an ‘‘intentional relinquishment’’ of that right. Roe’s opposition to Doe’s motion to proceed pseudonymously did not amount to waiving the right; her position was that she should be allowed to proceed pseudonymously while he should not. Any ambiguity about Roe’s stance, caused by the precise language in her opposition brief, was clarified by her subsequent motions seeking to seal or redact Doe’s amended complaint (which named Roe) and to proceed pseudonymously.
Moreover, Doe’s use of Roe’s real name in open court did not constitute a waiver on Roe’s part because, at that moment, Doe had already publicly named Roe in his amended complaint, Roe had a pending motion to seal or redact that amended complaint naming her, and Roe objected to the use of her name at the hearing (even if not as promptly as a careful attorney might have). Furthermore, we are not convinced that Roe’s inadvertent disclosures of her real name in the California matter or in this appeal amount to a waiver. Those disclosures were inadvertent, occurred within portions of larger filings, and Roe took steps to correct the errors once aware of them, resulting in the sealing and re-filing of the documents. These facts do not show that Roe intentionally abandoned her request to proceed pseudonymously….
In light of the clarifications provided here, we conclude that it is appropriate to allow the district court to reevaluate whether Roe should be permitted to proceed under a pseudonym in this case. {We acknowledge Doe’s argument that allowing Roe to proceed pseudonymously would prejudice him. We believe that contention is best addressed by the district court on remand.}
Daniel Altaras (Wigdor) represents Roe.
