Takeaways for California Lawyers from the Second District’s New Pseudonymity Case

The case is Roe v. Smith, just decided today by the Second District; it’s only the third binding California precedent, as I see it, expressly dealing with pseudonymity (the others are DFEH v. Superior Court, from the Sixth District in 2022, and the considerably less detailed Santa Ana Police Officers Ass’n v. City of Santa Ana, from the Fourth District this Spring). For more on the facts and the substantive analysis in the case, see this post, but here are some holdings that might be especially important for California lawyers litigating about pseudonymity:

1. The court broadly reaffirmed the strong pseudonymity-skeptical language in DFEH, including that “Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.'” And this happens in a case where the bottom-line result is indeed against pseudonymity (unlike in DFEH itself). “[T]he use of pseudonyms, absent a specific statutory authorization, should be a limited and rare exception to the general rule of public access to courts.”
2. The court made clear that pre-DFEH cases that just allowed pseudonymity without discussion aren’t authority in favor of pseudonymity: “While plaintiffs correctly point out that parties have proceeded pseudonymously in many California cases, few appellate cases have addressed the issue. ‘[C]ases are not authority for issues not raised or decided.'”
3. The court also concluded that Title IX precedents allowing pseudonymity are generally not relevant outside that area. “[T]his is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context.”

4. On the other hand, the court held that other federal cases that did expressly consider pseudonymity are important precedents. “[I]n evaluating whether a party has adequately shown an overriding interest that overcomes the right of public access guaranteed by the First Amendment, courts may consider both state and federal authorities, depending on the facts presented…. [T]hough not binding, the opinions of lower federal courts on federal issues are persuasive and entitled to great weight ….” “In performing the analysis under California Rules of Court, rule 2.550(d), courts may rely upon factors set forth in relevant federal cases for their persuasive value.”
5. The court concluded that pseudonymity is generally unavailable to defamation plaintiffs. “While defamation plaintiffs are not categorically foreclosed from proceeding pseudonymously, they are generally ill suited to do so; courts should require a robust evidentiary showing in such a case.”
6. And the court concluded that fear of professional, economic, or reputational harm generally doesn’t suffice to justify pseudonymity. “To the extent the trial court concluded that a reasonable fear of one’s employer learning about allegations of a private nature overcame the public’s right of access, we disagree.” “The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however ….”
7. The court concluded that the “injury litigated against would be incurred as a result of the disclosure of the party’s identity” rationale applies only to cases “seeking to enjoin a disclosure of private facts” and not when “plaintiffs are suing for damages based on comments which have already been made.”
8. The court made clear that “Before allowing a party to litigate under a pseudonym, the trial court must expressly find facts establishing an overriding interest that overcomes the right of public access to court records, and find a substantial probability that interest will be prejudiced if a pseudonym is not used,” and must find that “use of the pseudonym is narrowly tailored to serve the overriding interest, and there is no less restrictive means of achieving the overriding interest.” “In most cases, a party seeking to proceed pseudonymously should provide evidence supporting his or her motion to allow the trial court to make ‘[e]xpress factual findings’ on the matter.”
9. The court held that “to enable the court to conduct a recusal check, the party seeking to use a pseudonym should provide the parties’ real names under seal.”
10. The court held that decisions allowing pseudonymity are immediately appealable under the collateral order doctrine (by analogy to the sealing cases). “Orders concerning the sealing of documents are appealable as collateral orders…. While there is no specific case applying this rule in the context of an order allowing a party to proceed under a pseudonym, we conclude the reasoning is the same.”
11. The court reaffirmed that questions of pure application of law (as opposed to findings of historical fact) in a decision to grant pseudonymity are reviewed independently, and not for abuse of discretion. “Our record contains no declarations or other evidence from which the trial court could engage in factfinding. Instead, this appeal concerns a pure application of law, and constitutional law at that. We exercise independent review.”

Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition, which appealed the decision granting pseudonymity.