Traditionally, lawsuits, and the parties involved in them,
are public record. Occasionally, cases come along where one party would like
their name to stay off of the records for privacy reasons. In certain circumstances,
they are able to file their suit under a false name. This is called John and
Jane Doe legislation. Perhaps the most famous example of this John Doe
legislation would be the Rowe v Wade case that has been referenced in class a
few times. The actual plaintiff in this case was a Miss Norma McCorvey, who chose to file under the name Jane Rowe to keep her own
identity out of the public light. A more recent example would be a "John Doe" from California, who started a potentially class
action lawsuit against the Ashley Madison websites’ parent company, Avid Life
Media, for not informing clients of the breach in security soon enough, once
the popular adultery website was hacked. Although people have their personal
reasons for filing under fictitious names, this post will help identify situations
where it is appropriate for people to sue under false names and preserve their
anonymity as well as point out some critiques to this attempt at privacy.
Privacy As Protection
Federal Rule of Civil Procedure 10(a) provides that "In the complaint the title of the action shall
include the names of all the parties.” Although this seems to bar a John/Jane
Doe policy, courts have still made allowances in certain circumstances, based
on their interpretation of rule 10(a). Taken into consideration when a person
wants to file under a fictitious name, is their motivation. If this person is
simply wanting to avoid the irritation and inconvenience involved with the
publication of a lawsuit, they will not be granted anonymity. The only cases
where anonymity will be granted are those in which there is a threat of
retaliation against the plaintiff, or the possibility of harm, should they
reveal their identity. This possible retaliation does not necessarily have to be
physically harmful, it could be an emotional, social, or economic threat to well being also. The other type of case
would be a situation where privacy is necessary to protect an individual from
revealing intimate details about themselves. The main examples of these cases are
those dealing with matters such as abortion, sexual assault, birth control, and
abuse. Crimes such as rape or incest, which have a very high possibility of
retaliation from the defendant, can usually be filed anonymously, should the victim
want that. Finally, lawsuits against the government that may end in a criminal
prosecution after the case has been filed are sometimes able to be filed under
a fake name. http://www.legalmatch.com/law-library/article/filing-a-lawsuit-anonymously.html
Although not all courts recognize fictitious plaintiffs, many do understand
that behind the false pretenses, these are real, distressed people, who need a
way to maintain their obscurity.
The Critics Say
One argument against anonymous filing is that this process diminishes the value of free speech. Defendants and
defense attorneys argue that there is a constitutional right in knowing who is
filling a suit against you and in being able to challenge that person in a
court setting. Many courts will instead issue a protective order, to keep the plaintiff in a safe environment throughout their
suit, without granting anonymity. More conservative courts will have a stricter
interpretation of rule 10(a) and will dismiss cases where the plaintiff is not
named. In order to avoid dismissal, plaintiffs are warned beforehand that they
should try an alternate method as opposed to false identification. These courts
see safe alternatives as filling under a person’s legal name and then seeking a
protective order, or using a pseudonym but attaching your real name to a letter
to the court, or using a fictitious name but verifying one’s true identity with
a signature on the complaint. Many believe that anonymous filing goes against
the very nature of lawsuits, defending one’s stance to the court and the
public. When only one party, the defendant who did not readily engage in the
lawsuit, is outed to the public, a general sense of fairness is lost. As well
as being unfair to the defendant, not knowing who they are involved in this
litigation with, the public has no idea. The use of false names does not mean
the public cannot attend the trial, but it does mean that they cannot disclose information
about the trial, which again is seen as a detriment to the first amendment and the freedom of speech. Critics
believe that filing under one’s real name should not only be seen as a formality,
but as an integral foundation of the frankness and public involvement within
the American legal system. http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2463&context=ndlr
A Middle Ground
I find myself on the fence about this issue. I do believe
that it enhances the free speech of the plaintiff who first engages the lawsuit, because they are able to file anonymously and therefore avoid potential backlash to whatever they are saying,
but it also diminishes the potential voice of others. These pseudonyms seem to
put the defendant in a backseat position, seeing as how they are facing a
lawsuit from an unknown person. It would be very confusing and frustrating
defending oneself against no one. In addition, although the public may still
observe the legal proceedings, they must keep quiet about what they witness, which
may not be wholly appropriate. This issue is difficult, it seems as if it is
impossible to find a balance between freedom of speech and the right to
privacy. What do you guys think?
I'm on the fence about this issue too. On the one hand, I understand why someone would want to file under a pseudonym. A rape victim would not want to endure public embarrassment or retaliation of the defendant and has already endured enough distress. Anne makes a good point: "Although not all courts recognize fictitious plaintiffs, many do understand that behind the false pretenses, these are real, distressed people, who need a way to maintain their obscurity."
ReplyDeleteOn the other hand, I understand the argument that the defendant has the right to know who is suing them and that the accuser should publicly stand by their accusations. The defendant has rights too and those rights need to be protected. Just because they are being sued does not necessarily mean that they are in the wrong. The courts are meant to be a place of fairness and justice. Anne makes another good argument: "When only one party, the defendant who did not readily engage in the lawsuit, is outed to the public, a general sense of fairness is lost." In addition to that, if the plaintiff is going to sue, they should be prepared to face the same scrutiny that the defendant will face.
That having been said, I think it depends on the situation. I don't think there should be an absolute either way. Anonymity should be granted on a case-by-case basis, as it is now. A rape victim filing a case under a pseudonym is different than someone suing over copyright infringement. That places a lot of responsibility on the courts but I think that's better than granting anonymity outright or denying it all together.
I general, I agree with how Tara and Anne feel. I do see both sides of the argument. That being said, I do think that anonymous litigation has a place in our judicial system and is an important way for people to file law suits with the proper protection of their privacy. With this view, I think it is necessary for the United States Supreme Court to establish a universal and workable way to decide when anonymous litigation is appropriate. While it has been noted that many courts have adopted their own balance test, factor-based tests, content-based tests, etc. a universal system needs to be put in place so plaintiffs seeking anonymity are not the victims of subjective decision making. A point that was made by one of our readings "Ducking Duties: Pseudonymous Plaintiffs and the Supreme Court of Ohio" is that a fair trial is more important than an open trial. While I understand that this idea of closing the trials from public view is a controversial one, I think it is sometimes necessary for the trial to be completely fair. I believe that our judicial system needs to uphold this value of fairness and that anonymous litigation is a part of enforcing fairness.
ReplyDeleteI believe the ability to file anonymous litigation is integral to the provision of justice in many cases. A victim of a crime, or one who has been wronged in any civil sense, must not feel any trepidation in seeking redress in the courts. Especially in cases such as those mentioned above of sexual assault, incest, abuse, and so on, I can easily understand how the requirement of publicizing one's identity would cause many to not seek reprisal or right justice under the law. This creates an unacceptable disadvantage for the (potential) plaintiffs in such situations; they must forego pursuing justice or face the reality of unfair public ridicule.
ReplyDeleteI see no just argument to stand against this position. The critics arguments concerning freedom of speech I believe can be easily addressed. One measure I would propose would be that the plaintiff must disclose their identity to the court, of which a limited number of officials would be privy to, and would be subsequently made known to the defendant in private. Any publicizing of such private information concerning the case that should justly be left private could result in further legal consequences. This provides the plaintiff with a reasonable preservation of privacy, and the defendant with enough information to be able to fully understand the situation in which she or he is facing, were one innocent (were the defendant guilty they would already know the accuser's identity). I see such an implementation as a fair compromise that would more likely uphold justice in more cases than not.
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ReplyDeleteI agree with a limited version of Charles's solution of revealing the plaintiff, but I believe it should only be revealed to the defendant (and their defense), and a 3rd party responsible for protecting the plaintiff (likely local law enforcement). Obviously there are practical issues with the implementation of this solution. For example, it would be difficult to determine who leaked the plaintiff's identity, or if something were to happen to the plaintiff, it might be difficult to prove it was as a result of the lawsuit. However, I do believe that a person should know who's making an accusation against them, even if only for personal and moral reasons if not for strictly legal ones. However, I think the plaintiff's identity is irrelevant to both the court and the public. While there may be certain facts from the plaintiff’s personal life that are relevant in the trial, I believe that these facts can just as well be presented with personal information stripped away.
ReplyDeleteI agree with what Joe said. Much like the necessity for anonymous speech, I believe that it is important to be able to file anonymous litigation. The victims of crimes should not feel any fear or intimidation in coming forward to pursue justice. If every victim were forced to identify themselves to the public, it is very possible that they would not come forward for fear of threats, and/or their safety. It should also be noted that Anne pointed out anonymity is not granted on a whim. It is granted should the circumstances deem is necessary. It may be unfair if only the defendant's name is released to the public, but as discussed above, the circumstances would have to merit the anonymity of the plaintiff. Additionally, during the trial, it's kind of irrelevant what the public's perception is, because the defendant is being tried by the jury.
ReplyDeleteI also feel that if it were, say, a sexual assault case, the defendant would know who the plaintiff was anyway (assuming they have to appear themselves in court; I'm not sure when a plaintiff does or does not have to appear in court). If they had any sort of relations with the plaintiff, they would most likely remember who they are. (Again, assuming they come to court themselves)
Tying into that, I also agree with Joe's point about releasing the identity of the plaintiff to a limited amount of people in the court for legal reasons. It would not be unfair to the defendant if those in court (where he/she is being tried) were aware of the identity of the plaintiff.
In my view, Jane and John Doe litigations are an important part of allowing equal access to the legal system. Without the protection of anonymity, people who seek to report injustices that involve activities that carry a large stigma, for example abortion, would hesitate because they would be forced to subject themselves to this stigma, which could, in the worst of cases, be deadly. We’ve heard of the Planned Parenthood shootings and bombings, and the shootings of abortion providers. Clearly the danger of abortion stigma exists. Some of the first Jane Doe litigation cases that come to mind were to overturn abortion laws: Roe v Wade, which celebrated its 23rd birthday last week, and Doe v Bolton. There are many other cases in which the plaintiff’s right to privacy should be respected, even if being revealed doesn’t put them in physical danger, such as people who file litigation using information obtained while committing a crime or employees experiencing discrimination but don’t want to lose their job. While there are difficulties in Jane/John Doe litigations because the defendant doesn’t have the right to confront their accuser (a right guaranteed by the 6th and 14th amendments, for criminal cases only), there is a valid reason to use Jane/John Doe litigation. I do agree that there should be some system of checks and balances, as there are in government, to prevent abuse of the system, but the ability to file litigation anonymously should remain intact.
ReplyDeletewe have been presented with compelling arguments for both sides of this issue. That said I find myself (once again) jumping to the defense of the victim. As for the "Protection Order," It has been brought up already but physical safety is not the only thing that comes into risk. As Randy pointed out in the cases of Casey Anthony and George Zimmerman peoples reputations can be ruined by a court case. In the wake of tragedy something all someone has left is there name and reputation.
ReplyDeleteThis is a difficult issue, when it comes down to it the only fair way the settle this is to weigh what right is more important. I know that people are meant to have a right to face their accuser but I think it is more imporaint that people be able to try to bring someone to justice without fearing for themselves or their loved ones. I think this goes back to our conversation about anonymous whistle blowers. There are too many cases of people, especially in cases of sexual assault, where the victim can not, or will not come forward with their real name. Which leaves their attacker free and able to transgress again without repercussion. I would rather give up my right to face my accuser then allow that to happen.
This is a difficult issue in that it's completely subjective to the situation. Recognizing that, I believe that in matters of public interest, lawsuits should not be made under a fictitious name, whereas in matters of private affairs between individuals, lawsuits could potentially be made if ruled valid by the court. Anonymity creates a measure of safety that I think should only be made available to those who would truly be unsafe without it. However, there is an element of fair justification when a person makes a claim and is willing to back it up with everything they have, including their name and reputation. I'm satisfied that the current position of the courts is to conserve the usage of anonymity for cases that truly need it. As for the question of whether free speech is encroached upon by a person's wish to be private, I believe that in circumstances where someone's life or wellbeing could be jeopardized, their right to life outweighs the other person's right for free speech.
ReplyDeleteI think I also reflect what Charles said. I believe that the right to John/Jane Doe Litigation is really important to protect the identity of the plaintiff especially when there is a need for the plaintiff's identity to be concealed.
ReplyDeleteI think that there should be or there probably are already measures in place so people cannot abuse this and just file frivolous anonymous lawsuits. A lot of this class is having to find a right balance for things. In this case, we have to find the balance between the safety and privacy of the plaintiff the the defendants right to see the accuser.