In 1970, Norma McCorvey instituted a class action lawsuit against the district attorney of Dallas County, Texas that led to what is still one of the most controversial U.S. Supreme Court decisions in history. One might not know that, though, because until she outed herself and bolted for the pro-life movement in her autobiography ("I am Roe"), she was just plain-vanilla "Jane Roe," the name plaintiff in Roe v Wade .
Indeed, without fanfare, Justice Harry A. Blackmun, writing for the majority, dropped a simple footnote in the opinion saying "[t]he name is a pseudonym." For the world, Roe was thus identified merely as a pregnant single woman who simply didn't want her fetus to come to term and couldn't legally get an abortion in Texas. (And, as history would have it, she gave birth to that baby before the Supreme Court finally decided the case.)
Clearly, the pseudonymous description of McCorvey during the litigation undoubtedly made it easier for her -- given her then-view of abortion, which she later came to regret -- to litigate rather than creating the unwanted stigma that would have attached to her, particularly in those days, for "killing" her baby. There is no evidence that District Attorney Henry Wade, the pro-life movement, or anyone else tried to up the ante for McCorvey, and possibly inhibit or even intimidate the lawsuit, by seeking a court order directing that she be identified in the litigation by her true name.
Kudos to them. And in the wake of the Court's easy willingness to accept Roe's anonymity -- indeed, the vigorous dissent by Chief Justice William Rehnquist for the minority didn't oppose or even mention it in passing -- courts across the United States have more than occasionally allowed plaintiffs to use pseudonyms where identifying their true names would cause severe stigma to attach to them, typically in tort actions such as those involving rape.
The need for pseudonyms in litigation has expanded with the times. A recent New York Times piece, by First Amendment advocate Emily Bazelon, discusses the virtues of allowing litigation to proceed with pseudonymous plaintiffs in situations where the injury itself arises from abuses of the Internet's anonymity. The article, entitled "How to Unmask the Internet's Vilest Characters," argued that the pseudonym procedure appropriately dovetails with the need to avoid further stigmatizing a plaintiff who, for example, has suffered defamation and an invasion of privacy by having nude photographs of herself posted on a website anonymously, without her permission, and with the label "Jap Slut." In that situation, the plaintiff wanted to get a court order unmasking the poster (whom she believed was her abusive ex-boyfriend and/or his friends), but as the article notes "it's hard to bring such a suit without making her own humiliation complete."
Obviously, the thinking from these different quarters of the legal world is that while Justice Louis Brandeis' aphorism, "Sunlight is the best disinfectant," is usually right on the mark as a matter of public policy, sometimes sunlight can also cause melanoma. Social norms change, and many First Amendment advocates have come around to accepting the notion that the courts should sometimes depart from the conventional wisdom that those who initiate litigation must relegate concepts of privacy and confidentiality to the scrap heap. When a plaintiff opens the courtroom doors and seeks a public redress of an alleged wrong, the law can and should still provide for a means to litigate that both preserves the privacy rights of the plaintiff and furthers the public interest. Legislation may be required to adequately accomplish the goal of a litigant to retain some semblance of confidentiality in some cases.
What about situations where litigation is brought by the government? Most would argue that the public has a right to know how tax dollars are being spent, and to examine and opine on the deficiencies or anti-social aspects of a civil or criminal prosecution. Indeed, the "United States" is composed of citizens of the United States, and when a case is brought in its name, there is little reason or ability to maintain the secrecy of its fact findings and advocacy. Likewise, this reasoning should apply in large-scale cases seeking mass redress, even when the government is not a party to the case. Consider, for example, if two or three individuals institute a class action against a car manufacturer for defective paint jobs, that lawsuit and its potential settlement may affect thousands of car owners. Accordingly, these far-flung individuals must be allowed to know that the class action settlement may adversely affect their rights to potentially recover for themselves.
So in what cases is it appropriate for a plaintiff to bring a lawsuit anonymously, or under seal? While the notion of a sealed complaint might not jibe with some of the more staunch First Amendment jurisprudence, are there any instances where this is appropriate? What if the putative defendant is aware of the suit and agrees to it being brought under seal, for whatever reason? Maybe the plaintiff recognizes that the defendant would never want the complaint's allegations to become public, even if the defendant may in settlement talks persuade the plaintiff that she has no case. Or perhaps a plaintiff corporation recognizes that a public airing of the case may show that it allowed itself to be duped by the defendant, and the whole mess would better be left under seal. Or maybe the plaintiff knows that the defendant will file a counterclaim that the plaintiff, likewise, wouldn't want to see the light of day.
Of course, the parties could have accomplished confidentiality when they first began the relationship that led ultimately to the threatened lawsuit. They could have agreed to the arbitration process and the confidentiality regime that it promises. But life isn't always like that and most people don't enter relationships anticipating the possibility of litigation. Sometimes, when a relationship breaks down, the public courts may be the only venue in which to seek a remedy.
Traditionally, a lawsuit begins when the plaintiff pays the filing fee, gets a docket number and serves the summons and complaint. Must this become a public record immediately? Why must the mere filing of a lawsuit lay bare the strife that underlies it if the parties -- both of them -- don't want it to? Yes, there may indeed be an "extortionate" aspect to filing a lawsuit under seal, where the plaintiff knows that he or she still maintains leverage over the defendant before the case becomes public and hopes to gain top dollar while the proceedings remain confidential, particularly if the defendant is willing to pay a "premium" for it to remain so. But is there anything wrong with this, if the defendant consents and if it will resolve the litigation more quickly and mitigate the burden on the courts?
Lawsuits are filed every day that have no intention of going to trial and invoking judgment by a jury of one's peers. A complaint may be filed strategically, for example, as an opening move where the plaintiff only files to protect against the statute of limitations running or a laches defense setting in but the case is sure to settle and the parties are already engaged in meaningful settlement talks. True, some lawyers (and clients) are offended when they receive a copy of a draft complaint, viewing it as a shakedown. Even if it is one, though, the defendant is free to toss it in the garbage and refuse to consent to a sealed pleading -- forcing the plaintiff to file his complaint publicly.
The First Amendment purist would say that is how it should be. Disputes that seek to invoke the court process should be resolved in a public forum, to promote accountability and to advance the law and its body of jurisprudence in the area of the dispute. The rich contours of legal precedent, upon which the livelihoods of all lawyers depend, are molded by the individual circumstances of each case. If we allowed lawsuits to be confidential as a matter of course, the body of law upon which judicial decision-makers could draw would dwindle and future cases would suffer.
This public policy for transparency in public filings doesn't hold water if a case settles before a judge or jury gets to it. In cases where a confidential or sealed lawsuit would only speed up the settlement process, perhaps the public interest would be best served by allowing that to happen to avoid wasting court time and expense. True, court administrators want their dockets moved, and sealed lawsuits may slow the process because the judges assigned, once the lawsuit is publicly filed, can run roughshod over the parties to move them along. On the other hand, if the case is simply filed and placed in a suspense file while the parties try to resolve their differences, what public policy demands case movement, when no judge or jury's time is taken up by a piece of paper in a sealed file cabinet, or on a sealed docket sheet? Such a practice might indeed be in the public interest, as long as the public has no actual stake in the outcome of that particular litigation.
What cases do we really care to know about, anyway? Divorce cases are often closed courtrooms, as are family court proceedings. Most of us think that's fine, perhaps because we have some compassion and/or we don't care to know the dirty details of a stranger's life. If that stranger is a celebrity, things may be different and we may feel deprived of some frivolous enjoyment without public filings every time a case is brought when, e.g., Mel Gibson claimed he was "shaken down" by his girlfriend or wife or when quarterback Brett Favre allegedly sent lewd messages to at least one woman. Nonetheless, if the parties to these skirmishes are able to resolve their frictions without a public filing, is our own appetite for celebrity gossip a good enough reason to deny the parties the right to some privacy in their court dealings? Clearly, when they get on their high horse and tell the rest of us that they are the vox populi surrogates for the world at large, the "press" (loosely termed if you include TMZ.com and bloggers like Perez Hilton) trumpets their need to know -- in order to tell the rest of us. But why? They don't have a right to have been in Gibson's bedroom or accessing Favre's email account when the alleged dirty deeds were done.
So, when a plaintiff has the full consent of the defendant to keep the "deed" confidential (albeit with disparate motives), why shouldn't we let them? Indeed, why would this be more offensive than the Supreme Court approving a woman's anonymous lawsuit, when all women of child-bearing age in the United States then and now have a stake in the outcome of the litigation that one Ms. Jane Roe chose to initiate?
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. He is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm , Ph.D., a former law clerk to a U.S. Court of Appeals judge and a U.S. District Court judge, is in private practice in New York. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.
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