More on Pseudonymous Litigation

redact1.jpgHoward Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today:

In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .

There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.

While I don’t believe that the court should be held blameless, I definitely agree with Bashman that the lawyers are also to blame in this case.

Lawyers often are not devoting adequate attention to the issue of client privacy interests in the course of litigation. One reason why many privacy cases involve the real names of plaintiffs is because many lawyers don’t even think of raising the issue of the plaintiff proceeding pseudonymously. Courts often will deny plaintiffs the right to proceed under a pseudonym, but this doesn’t mean it isn’t worth trying. You rarely get anything without at least asking.

Beyond privacy cases, lawyers also often don’t take adequate steps to get sensitive personal information redacted from court documents which are made public. As many courts are moving toward making their records available online, they are adopting policies that allow for the redaction of certain sensitive personal information from documents that are placed on the Internet. But to be effective, these policies depend upon attorneys safeguarding the rights and interests of their clients. Many lawyers are letting their clients down in this regard by not being aggressive enough in pursuing clients’ interests in maintaining the privacy of their information in court filings.

Thus, Bashman is certainly right that lawyers need to begin to step up to be better at protecting their clients’ privacy interests. That’s why every lawyer should take a privacy law course in law school! And coincidentally, I happen to teach such a course. . .

UPDATE: PG has some interesting thoughts on pseudonymity in a rather interesting case, Moe v. Doe, here.

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1. Solove, Of Sex Tapes, Pseudonymous Litigation, and Judicial Bungling

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3 Responses

  1. Bruce says:

    Lawyers should certainly be attuned to the ways in which a court docket, particularly an electronic docket, can adversely affect their clients’ interests. A complete litigation strategy considers not just the chances of winning or losing, but all of the ancillary effects of litigation as well, such as the fees, the lost time, the distractions, possible negative or positive PR, etc.

    However, any person wishing to proceed pseudonymously should be aware of two key issues: First, a motion to proceed by pseudonym is very hard to win, at least in some courts. (However, I will say, contra Judge Easterbrook, that the facts of Doe v. Smith contain many of the factors successful pseudonymous plaintiffs have demonstrated: the plaintiff is a minor, the case involves sexual matters, and she alleges that her privacy was violated.)

    I don’t agree with your suggestion, however, that you should move to proceed pseudonymously on the theory of nothing ventured, nothing gained. In general, it’s a bad idea to start a case with a losing motion if you can avoid it. It will look bad in the press, if the press is paying any attention to your case; and it may also negatively impact the judge’s impression of your case. Obviously if your client would suffer a detrimental impact by revelation of their real name in connection with the lawsuit, then you have an ethical duty to make every effort consistent with the law to protect your client’s interests. Courts and even particular judges vary widely, however, in how they balance such requests against the also compelling need to conduct court proceedings that are open to the public. It’s an issue that may require careful thought.

    Second, the situation with the 7th Circuit docket is not novel; when seeking to file papers under seal (e.g. papers with real names), it is important to recognize that there is no guarantee of success no matter how careful you are. Simply put, courts screw it up all the time. Again, some are better than others. This reinforces what Howard Bashman said, that it is important not only to make sure you have taken all necessary precautions in protecting confidential materials filed with a court; you must also insure afterwards that the material was in fact sealed by the court personnel, including the listings on the docket. I would not go as far as Bashman seems to, that the failure of the movant’s attorney to notice a public docket entry waives the right to proceed by pseudonym, but nevertheless, it’s a good idea as a prudential matter to never assume the confidential material was correctly filed under seal.

  2. Bruce,

    Thoughtful points. On the nothing-ventured-nothing-gained theory, I think that part of the problem is that the law is so poorly developed with regards to pseudonymous litigation. I’m generally of the view that it would be fine to have a rule that is more permissive in allowing people to proceed pseudonymously. I also think that there should be more clear legal standards to govern the process. It shouldn’t turn largely on the whims of particular judges. Given the current system, it might make sense to at least attempt to proceed under a pseudonym in a privacy case. Perhaps if more people pressed the issue, the courts or legislatures might develop better rules.

    Of course, you’re right that it is bad to start off with a losing motion. As with regards to the press, I’ve often seen privacy litigants mocked for bringing suit and revealing their names, thus enhancing their publicity. I think that the criticism is unfair, as the system is at fault, not the litigants who want to pursue their legal rights. Perhaps if they made the motion and lost, the blame might shift to the court’s denying the motion. This might enhance sympathy for the victim in the press, and it would raise awareness of the pseudonym issue.

  3. Bruce says:

    “As with regards to the press, I’ve often seen privacy litigants mocked for bringing suit and revealing their names, thus enhancing their publicity. I think that the criticism is unfair…” I agree, 100%.

    I also agree with your suggestion that the standard for proceeding pseudonymously needs to be better defined. (Also, relatedly, rules like the District of D.C.’s that requires listing the parties’ residential addresses and telephone numbers on the pleadings should be re-thought.) This is going to be particularly important in the near future, when there are more privacy-related emergency motions relating to “escaped” documents, such as the video at issue in Doe v. Smith, or other private or embarrassing moments recorded in digital media.