No Pseudonymity for Plaintiffs Alleging Sean Combs (P. Diddy) Sexually Assaulted Them

From today’s opinion in Doe v. Combs, by Second Circuit Judges Michael Park, William Nardini, and Maria Araújo Kahn, the key paragraphs:

“[O]ur review of a district court’s decision to grant or deny an application to litigate under a pseudonym is for abuse of discretion.” Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008). “A district court abuses its discretion when (1) its decision rests on an error of law … or a clearly erroneous factual finding, or (2) its decision … cannot be located within the range of permissible decisions.”

As numerous courts have observed, “concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would, upon learning … about the case, know to step forward with valuable information about the events or the credibility of witnesses.” Doe v. Del Rio (S.D.N.Y. 2006) (citing Richmond Newspapers, Inc. v. Virginia (1980) (Brennan, J., concurring) (“Public trials come to the attention of key witnesses unknown to the parties.”)). The loss of such witnesses would be particularly prejudicial here given that the incidents complained of allegedly occurred decades ago and would “be difficult to defend even with information about Plaintiff[s’] identit[ies].” The district court thus reasonably concluded that the sixth Sealed Plaintiff factor strongly favored Defendants.

More details:

In these tandem appeals, Plaintiffs-Appellants John Doe, Jane Doe, and John Doe sued Sean Combs and his related business entities … alleg[ing] that Combs sexually assaulted and/or raped them between 1991 and 2007. [One of the three alleges he was 16 when he was sexually assaulted. -EV] On appeal, they challenge the district court’s orders denying their motions to proceed under a pseudonym….

“[O]ur review of a district court’s decision to grant or deny an application to litigate under a pseudonym is for abuse of discretion.” Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008). “A district court abuses its discretion when (1) its decision rests on an error of law … or a clearly erroneous factual finding, or (2) its decision … cannot be located within the range of permissible decisions.”

Rule 10(a) of the Federal Rules of Civil Procedure provides that “[t]he title of [a] complaint must name all the parties.” “This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.” A plaintiff seeking to proceed pseudonymously must rebut the presumption of openness and demonstrate that his “need for anonymity” outweighs the “countervailing interests in full disclosure,” including “the public interest in disclosure and any prejudice to the defendant.” In balancing those interests, courts in this Circuit consider the ten non-exhaustive factors set out in Sealed Plaintiff …{: “(1) whether the litigation involves matters that are of a highly sensitive and of a personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties; (3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff’s identity has thus far been kept confidential; (8) whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose his identity; (9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities; and (10) whether there are any alternative mechanisms for protecting the confidentiality of plaintiff.”}

With respect to Plaintiffs’ interest in anonymity, the district court found that, although Plaintiffs’ claims were of a highly sensitive and personal nature (factor one), each Plaintiff failed convincingly to show a risk of harm from proceeding publicly (factors two and three). First, though Plaintiffs generally alluded to a fear of retaliation from Defendants, they did not allege any individualized facts to support that fear; instead, they pointed to non-specific threats allegedly made to other litigants. {Plaintiff Jane Doe did allege that after Combs assaulted her, he threatened her with violence should she report what happened. But, as the district court noted, that threat was allegedly made more than three decades ago, and Doe did not otherwise identify “any present threat of physical harm.”}

Second, Plaintiffs’ claims that disclosure would cause them mental harm were similarly generic and unsupported by any plaintiff-specific evidence. In fact, the memoranda of law in support of Plaintiffs’ motions contained the exact same paragraph describing the purported risk to their mental health. Finally, the district court found that any risk of harm was further diminished because Plaintiffs were all adults (factor four) and alternative methods, such as a protective order, could shield their confidential information (factor ten).

On appeal, Plaintiffs argue that the district court should have treated the first factor “as dispositive or nearly dispositive” because sexual assault cases are the paradigmatic example of “when plaintiffs may desire to proceed anonymously.” But making the first factor dispositive or near-dispositive would create a presumption in favor of anonymity in every sexual assault case, which is contrary to settled law. Cf. U.S. v. Pilcher (2d Cir. 2020) (rejecting the argument that “the default position should be anonymity whenever [a plaintiff] can argue that he has a reasonable fear of harm that would otherwise cause him not to file a petition” because “pseudonyms are the exception and not the rule” and the moving party bears the burden of “rebutting [the] presumption” of disclosure). Plaintiffs’ argument is thus unavailing, and the district court did not err in its assessment of the risk of harm to Plaintiffs. See id. (affirming denial of a motion to proceed under a pseudonym when the moving party’s claims of harm amounted to “unsubstantiated speculation,” even though his suit otherwise involved highly sensitive and personal matters).

The district court also determined that Defendants would be highly prejudiced should Plaintiffs proceed under a pseudonym because of likely asymmetries in fact-gathering (factor six). As numerous courts have observed, “concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would, upon learning … about the case, know to step forward with valuable information about the events or the credibility of witnesses.” Doe v. Del Rio (S.D.N.Y. 2006) (citing Richmond Newspapers, Inc. v. Virginia (1980) (Brennan, J., concurring) (“Public trials come to the attention of key witnesses unknown to the parties.”)). The loss of such witnesses would be particularly prejudicial here given that the incidents complained of allegedly occurred decades ago and would “be difficult to defend even with information about Plaintiff[s’] identit[ies].” The district court thus reasonably concluded that the sixth Sealed Plaintiff factor strongly favored Defendants.

In sum, across all three cases on appeal, the district court considered the Sealed Plaintiff factors, balanced the competing interests, and concluded that, in light of Plaintiffs’ weak showing of harm and the significant risk of prejudice to Defendants, anonymity was not warranted. We discern no abuse of discretion in any of the district court’s orders, so we affirm….

I think this is the correct result, for reasons given in my One-Sided Pseudonymity article and in this amicus brief (thanks to Stanford law student Mary Rose Fetter for her work on the brief); here’s the Introduction:

“[P]seudonymity generally, and one-sided pseudonymity particularly, is not without its risks.” Doe v. Sidar (4th Cir. 2024) (Wilkinson, J., concurring). Permitting a plaintiff to proceed pseudonymously while naming an accused defendant is generally unfair to the defendant:

Allowing one party to proceed anonymously increases the potential for abusive suits that use the threat of reputational damage to exact revenge or to extract settlements from innocent parties. Having one party incognito but not the other can tilt the scales of justice in the direction of guilt by anonymous accusation, a prospect which would be just as abhorrent to civil litigation as it is to our criminal justice system…. Pseudonymity may enhance the incentives for well-founded complaints to be filed, but it may also serve as a cover for actions that tarnish the innocent.

This brief elaborates on Judge Wilkinson’s reasoning to explain why there should be an especially strong presumption against one-sided pseudonymity in cases (such as cases alleging sexual assault, fraud, and the like) where an accusation can by itself cause severe reputational harm.

First, being identified as a litigant can seriously harm a defendant even if a court eventually finds that the accusations were unfounded. This harm can be as great as the harm that a plaintiff seeks to avoid by suing pseudonymously.

Second, and extending beyond sexual assault and other highly stigmatizing claims, allowing a plaintiff to proceed pseudonymously increases the potential for unfounded or overstated suits. Pseudonymity may reduce the plaintiff’s sense of accountability, making it easier to pursue speculative or exaggerated allegations without reputational cost.

Third, one-sided pseudonymity can be unfair to the named party during the litigation process; as courts have recognized, one-sided pseudonymity can

• make it less likely that witnesses will come forward with information about the plaintiff or about the incident over which the plaintiff is suing;
• make it harder for publicly accused individuals to publicly defend themselves against public allegations, for example by challenging the plaintiff’s credibility;
• skew settlement dynamics, asymmetrically pressuring defendants into settling early or allowing the pseudonymous party to hold out for a larger settlement while facing fewer costs; and
• potentially cause jury prejudice, subtly framing one party as endangered and thus deserving of protection.

In each respect, the imbalance created by one-sided pseudonymity tends to undermine the fairness of judicial proceedings.

To be sure, one possible solution to the problem—mutual pseudonymity—interferes with the public’s right of access to court proceedings even more than one-sided pseudonymity does. Courts might therefore conclude that the better solution is no pseudonymity in such cases, or perhaps they might conclude that the better solution is two-sided pseudonymity. But on balance, they should generally not allow one-sided pseudonymity.

Finally, though there may be situations where one-sided pseudonymity is justified, such as those involving institutional defendants like large corporations or governments or individual defendants who had already been found guilty, this case does not present such an exception.