Maley: Proceed under a pseudonym


Local federal courts routinely deal with procedural issues that recur from time to time. Most of these decisions receive little attention beyond the parties, but are often informative to many federal practitioners.

The question of whether and how to proceed under a pseudonym is an example of this. Two informative notices from the Southern District of Indiana provide excellent roadmaps.

Denial – In John Doe v. Indiana University Trustees, No. 1:21-cv-02903, 2022 WL 36485 (SD Ind. Jan. 3, 2022), plaintiff was a student at Indiana University and filed an action against the university challenging his suspension from a year for alleged violations of COVID protocols.

The plaintiff simultaneously filed a notice of intention to proceed under a pseudonym and a motion to proceed under a pseudonym. Magistrate Judge Mark Dinsmore outlined the applicable standards and ultimately dismissed the motion.

Beginning with the basic standards, Justice Dinsmore wrote: “The presumption in favor of an open process where the parties are identified is both powerful and ancient. Doe vs. Indiana Black Expo, 923 F. Supp. 137, 139 (SD Ind. 1996); see Fed. A. Civil. P. 10 (requiring a complaint caption to ‘name all parties’); see also Fed. A. Civil. P. 17 (requiring that all civil actions “be brought on behalf of the true interested party”). Therefore, ‘[t]The use of fictitious names is discouraged. Doe v Blue Cross and Blue Shield United, 112 F.3d 869, 872 (7th Cir. 1997). The “unusual practice” of allowing a party to plead under a pseudonym may, however, be appropriate “in exceptional cases where the party has such an important right to privacy that it overrides the” customary and constitutional presumption of Transparency in Judicial Proceedings”.’ Indiana Black Expo, 923 F. Supp. at 139.

The court went on to describe its discretion, writing: “’The decision whether or not to allow a party to proceed under a pseudonym is within the discretion of the court.’ Doe c. Purdue Univ.321 FRD 339, 341 (ND Ind. 2017); KFP vs. Dane County, 110 F.3d 516, 519 (7th Cir. 1997). Therefore, the court “has an independent duty to determine whether exceptional circumstances warrant such a departure from normal procedure in federal courts.” Blue Cross & Blue Shield United112 F.3d at 872.”

Justice Dinsmore went on to list factors commonly considered: whether the plaintiff challenges government activity or the actions of an individual; whether the plaintiff’s action requires the disclosure of confidential information; whether the action requires disclosure of the plaintiff’s intent to engage in unlawful conduct; whether the identification would expose the applicant to a risk of physical or mental harm; whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and the public interest in ensuring open access to proceedings without depriving litigants of access to the justice system.

Addressing these factors, the court concluded that the prosecution would not compel the plaintiff to reveal information of the utmost privacy.

The court explained: “The plaintiff presents no concrete example of the type of intimate information that revealing his identity would compel him to disclose. This is especially clear given that Plaintiff does not dispute that he ‘and his four housemates, also members of his fraternity, hosted a social gathering at their private off-campus residence’ on April 23, 2021, at which the Department of Bloomington Police and Indiana University Police responded. Indeed, it appears that the plaintiff would simply prefer not to attach his name to his admitted conduct. »

Regarding the risk of physical or mental harm, Judge Dinsmore concluded: “The plaintiff’s concerns in this case center on his economic well-being and his possible embarrassment or humiliation, but the courts have generally dismissed attempts to proceed under fictitious names solely based on these concerns.”

Regarding the potential harm to defendants if the plaintiff proceeded anonymously, the court found the following defense concerns valid: “Defendants may need to be discovered by third-party witnesses, including depositions and document requests. It is complicated at best for defendants to obtain a third-party discovery of the plaintiff if his name is anonymous. Defendants will also suffer prejudice by being forced to refer to the plaintiff by a pseudonym during a jury trial. Courts have recognized, for example, that jurors may interpret the court’s permission for the plaintiff to conceal his true identity “as a subliminal commentary on the harm that the alleged encounter … has caused the plaintiff”.

Regarding the public interest, Justice Dinsmore wrote, “The public interest in the long-standing notion of federal commencement of proceedings would be frustrated by allowing the plaintiff to use a fictitious name – particularly here, where the applicant has failed to establish how his or her case constitutes an exceptional circumstance, guaranteeing anonymity.

Finally, Judge Dinsmore asked whether the plaintiff’s identity had been kept confidential and determined that the plaintiff’s complaint does not hide his presidency of a specific fraternity and that a simple Google search reveals his identity. And “in the same vein, his underlying conduct – hosting a party that allegedly violated COVID restrictions – was not confidential, as there were admittedly at least 40-50 people present at the plaintiff’s party” .

Thus, Justice Dinsmore concluded: “The plaintiff has not established a privacy interest of sufficient substance to override the ‘customary and constitutional presumption of openness in court proceedings’. Indiana Black Expo, 923 F. Supp. at 139 (quoting Frank, 951 F.2d at 323). The plaintiff, as plaintiff, has failed to meet its burden of “showing[ing] that some combination of these factors outweighs the ordinary presumption of judicial openness, justifying the exercise of the Court’s discretion”. Cook County, 2021 WL 2258313, at *3. Accordingly, this case does not present the type of “exceptional circumstances” that warrant allowing the plaintiff to proceed under a pseudonym. Blue Cross & Blue Shield United112 F.3d at 872.”

A review of the record shows that the plaintiff was permitted to amend the disclosure of his name, which he did in an amended pleading. The case continues.

To agree – In a different factual context involving a student arrested for sexual assault on a minor and subsequently suspended from university, the court granted the plaintiff anonymity in Doe v. Indiana University, no. 120-cv-00123, 2020 WL 12991581 (SD Ind. 3 Mar. 2020). In that case, Magistrate Judge Debra McVicker Lynch applied the same factors and concluded: “At this stage of the case, the court is satisfied that the plaintiff shows that he may suffer undue hardship if his name is used and easily accessible. The court is also particularly attentive to the fact that revealing the plaintiff’s name can contribute to an “out” of the minor whom the plaintiff is accused of having sexually assaulted; also for this reason, the court believes that anonymity should be allowed at this stage.

Judge Lynch added: “The Seventh Circuit also noted that fictitious names may be used if necessary to protect the privacy of ‘children, rape victims, and other particularly vulnerable parties or witnesses.’ See Doe vs. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).

Justice Lynch further wrote “that the interests of the plaintiff, the appropriate protection of the identity of the minor, the interests of the defendants to avoid harm, and the public interest in the publicity of the courts may need to be rebalanced at some point later in this proceeding, as at the trial itself, and the court may reconsider the circumstances in which a pseudonym may continue to be used”.

A review of the file indicates that the plaintiff pursued the case anonymously and the case was ultimately dismissed.•


John Maley is a partner of Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.


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