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November 22, 2005

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» Not About Private(s) from De Novo
Will Baude and UChicago Prof. Lior Strahilevitz appear to be trying to work out a theory of when pseudonyms ought to be granted to plaintiffs. Baude says, "But the federal claim here wasn't an invasion of privacy claim, it was... [Read More]

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Paul M. Secunda

Lior, great post.

I am not familiar with the practice of anonymous captions in the 7th Circuit, but the recent Supreme Court case of City of San Diego v. John Roe (US 2004) seems to represent the better approach in a much less sympathetic case.

John Roe represented a case in which a police officer was fired for selling pornography of himself on eBay. It seems clear that if the 9th Cir. courts are willing to give the anonymous caption to an adult law enforcement officer who voluntarily sells pornography of himself, an anonymous caption would be more than appropriate for a minor who was secretly taped engaging in intimate relations.

Doug Lichtman

It seems only fair to point out that the judges who wrote the opinion and under whose watch the plaintiff's name let slip were judges Easterbrook, Evans, and Williams.

ohwilleke

Mr. Smith would not have a defamation action. Court pleadings are privileged from defamation suits. His remedies would be to: (1) bring a motion to strike the pleadings, (2) bring a motion to have the case tried under seal, and (3) if the suit was frivilous, to bring suit under Rule 11 or related doctrines seeking an award of his attorneys fees and costs.

But, there are very few exceptions to the rule that provides that a defendant who prevails in a civil lawsuit is not entitled to a suit for damages for harm to the defendant's reputation as a result of the suit, even if it was a frivilous suit. This policy encourages people to use the courts, rather than the court of public opinion, to resolve such disputes, prevents the threat of suit from creating costly satellite litigation that could discourage meritorious suits, and recognizes that the fact that one prevails in litigation provides a tool to rehabilitate one's reputation.

Ted

Is there even an administrative slip here? Did Doe notify the clerk of the need to redact from the filed versions of the brief? Did Doe make a motion to file under seal? Did Doe submit a redacted copy for use electronically?

San Diego v. Roe surely comes out differently in the Seventh Circuit, which is the court most unfavorable to motions to seal and pseudonyms.

I didn't read this opinion as so clearly dictating the revocation of pseudonymity; it certainly contemplates the possibility of real issues, and simply spanks the lower court for failing to perform the analysis at all.

but wouldn't a defamation cause of action arise if Doe made defamatory charges against Smith

No. There's an absolute litigation privilege. At best, there's a malicious prosecution cause of action, and that requires a showing of no probable cause. Civil defendants don't have much in the way of recourse or rights when it comes to being made whole for meritless litigation.

Lior

Ted is right, I have changed the post. Malicious prosecution would be the appropriate cause of action. For a relevant local explanation, see Illinois Nurses Ass'n v. Bd. of Trustees, 318 Ill. App. 3d 519 (2000).

As for the question about judicial error. We can assume that the judges read the brief, right? If so, they should have noticed what Howard Bashman noticed, which is the disclosure of the plaintiff's real name. At the very least, noticing this disclosure would have warranted omitting the opinion's two paragraphs on pseudonmity, which would have been mooted by the publication of the unredacted brief online. Alternatively, they could have alerted Doe's counsel to the error at oral argument. As my initial post indicates, I believe Doe's counsel should have prevented the error, but the Court's failure to notice the disclosure in a case with an important holding regarding pseudonmity is embarassing.

Ted

The judges read the brief, but the Rule 26.1 disclosure HAS to include the real name--how else can the judges avoid conflict-of-interest problems? The judges don't know whether the brief has been filed under seal, and it's poor use of resources to make it their obligation to check the website every time there's confidential information at issue to ensure that the attorney has done their job properly, when the only interest is that of the attorney's client--who the attorney is supposed to be looking out for to begin with.

Doe is still pseudonymous. No one has published the name, a google search does not associate Doe's real name with the lawsuit, and you and I will forget the name inside a week. (If the issue is that a few dozen people now know who she is, that problem already exists; nothing stops a classmate from mentioning that she knows who Doe is, just as happened with Katelyn Faber in the Kobe Bryant case.) Her attorney can still ask the Seventh Circuit to post the brief under seal.

Anthony D'Amato

The 7th Circuit seems to have placed a condition upon the plaintiff's 5th and 6th amendment rights to obtain redress for harms, namely, that her identity must be disclosed. But this condition automatically leads to amplifying the invasion of her privacy. Since this amplification is out of her control, and was occasioned in the first place by the defendant's conduct, shouldn't she be able to add to her damages against the defendant damages for the additional injury caused by the amplification?

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