Opposition ObjectionsCal. Super. - 6th Dist.November 23, 2020COOLEY LLP ATTORNEYS AT LAW PALo AL'IU .p \OOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOCV373940 COOLEY LLP GREGORY C. TENHOFF (154553) (tenhoffgchcooley.com) HELEN LUU (300759) (hluu@cooley.com) JOSHUA E. ELEFANT (3 129 1 3) (jelefant@cooley.com) 3 175 Hanover Street Palo Alto, California 94304-1 130 Telephone: +1 650 843 5000 Facsimile: +1 650 849 7400 Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/16/2021 4:20 PM Reviewed By: F. Miller Case #20CV373940 Envelope: 6261 098 Attorneys for Defendants Roku, Inc. and Long-Ji Lin SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA J DOE, as an individual, Plaintiff, V. ROKU, INC., a Delaware corporation; LONG-JI LIN, an individual, and DOES 1 through 50, inclusive, Defendants. 246893534 v4 Case No. 20CV373940 DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” Date: April 29, 2021 Time: 9:00 am. Dept: 2 Judge: Hon. Drew Takaichi Trial Date: Not yet set Date Action Filed: November 23, 2020 OPPOSITION TO PLAINTIFF’S MOTION TO CONTINUE ACTION AS “J DOE” (CASE NO. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION. ............................................................................................................. 1 II. FACTUAL BACKGROUND. ............................................................................................ 1 III. LEGAL ARGUMENTS. ..................................................................................................... 4 A. Plaintiff Has No Legal Basis for Proceeding as a Doe Plaintiff. ............................ 4 1. Proceeding Anonymously Is Disfavored as a Policy Matter. ..................... 5 2. Plaintiffs Doe Status Is Not Warranted Because Plaintiff Has Failed t0 Show Any Exceptional Circumstances t0 Support the Use 0f a Pseudonym. .......................................................................................... 6 B. The Use 0f a Pseudonym Is Unnecessary In Light 0f the Parties’ Protective Order. .................................................................................................................... 10 C. Defendants Will Be Prejudiced By Plaintiffs Use 0f a Pseudonym. ................... 11 1. Defendants Will Be Prejudiced In Their Defense 0f the Lawsuit............. 11 2. Defendants Will Be Prejudiced In the Public Forum ................................ 12 IV. CONCLUSION. ................................................................................................................ 14 246893534 v4 i OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .................................................................................................................. 5 Doe v. Blue Cross & Blue Shield United 0f Wisconsin, 112 F.3d 869 (7th Cir. 1997) ................................................................................................. 5, 8 Doe v. City 0fNew York, 201 F.R.D. 100 (S.D.N.Y. 2001) .............................................................................................. 8 Doe v. Deschamps, 64 F.R.D. 652 (D. Mont. 1974) ................................................................................................. 7 Doe v. Frank, 951 F.2d 320 (1 1th Cir. 1992) ............................................................................................... 6, 8 Doe v. Goldman, 169 F.R.D. 138 (D. Nev. 1996) ................................................................................................. 8 Doe v. Indiana Black Expo, 923 F.Supp. 137 (SD. Ind. 1996) ............................................................................... 7, 8, 9, 13 Doe v. Lincoln Unified School Dist, 188 Cal. App. 4th 758 (2010) ................................................................................................ 6, 9 Doe v. Porter, 370 F.3d 558 (6th Cir. 2004) ..................................................................................................... 7 Doe v. Rostker, 89 F.R.D. 158 (ND. Cal. 1981) ............................................................................................ 5, 6 Doe v. UNUMLife Ins. C0. 0fAm., 164 F.Supp. 3d 1140 (ND. Cal. 2016) ................................................................................. 5, 7 Does I thru XXIII v. Advanced Textile Corp, 214 F.3d 1058 (9th Cir. 2000) .......................................................................................... 4, 5, 6 James v. Jacobson, 6 F.3d 233 (4th Cir. 1993) ............................................................................................... 7, 9, 10 National Commodity & Barter Assn. v. Gibbs, 886 F.2d 1240 (10th Cir. 1989) ................................................................................................. 4 Reno v. Baird, 18 Cal. 4th 647 (1980) .............................................................................................................. 5 246893534 v4 i OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Southern Methodist University Assn. 0fWomen Law Students v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979) ................................................................................... Starbucks Corp. v. Superior Court, 168 Cal. App. 4th 1436 (2008) ................................................................................ Other Authorities California Rules 0f Court 2.550 ........................................................................................................................ 5.165 ........................................................................................................................ Local Rule 8(f) ........................................................................................................ ii Page(s) ........ 6, 9, 12 .................. 6 .................. 5 .................. 3 .................. 3 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. In Plaintiff” s Motion to Continue Action as “J Doe” (the “M0ti0n”), Plaintiff asks this Court t0 use its powers t0 grant Plaintiff the right t0 keep her identity in this litigation hidden. However, in doing so, Plaintiff ignores long-established principles concerning the openness 0f the courts and the public’s right t0 full access 0fthe court records. Furthermore, Plaintiff” s Doe status is improper because that status is reserved for narrowly defined circumstances which simply d0 not exist here. First, Plaintiff cannot meet Plaintiff’s burden in showing that Plaintiff is entitled t0 use a pseudonym here. There is a strong presumption that the parties’ identities in a filed matter are public information. Here, Plaintiff has only asserted that Plaintiffwould suffer embarrassment and humiliation if Plaintiff” s true name was disclosed but courts have routinely found that such interests are insufficient in outweighing the public’s right t0 such information. Second, the parties’ current protective order already protects any sensitive medical information from being disclosed t0 the public, and thus, the Motion is superfluous. Third, Defendants would be prejudiced by Plaintiff” s use 0f a pseudonym both in its defense 0fthe lawsuit and also in the public forum. Moreover, Plaintiff” s requested remedy - that Plaintiff” s true name remain hidden - is unnecessary in light 0f the fact that there are other means 0f ascertaining Plaintiff’s true identity. Accordingly, Defendants respectfully request that this Court deny Plaintiffs Motion and requests an order requiring Plaintiff t0 amend her Complaint t0 use her true name. II. FACTUAL BACKGROUND. On November 12, 2020, prior t0 filing the Complaint in this matter, counsel for Plaintiff, a former Roku employee, asked Defendants’ counsel Via email whether Defendants would be willing t0 stipulate t0 Plaintiff proceeding with this lawsuit under a pseudonym. (Declaration 0f Gregory C. Tenhoff in Support 0f Defendants’ Opposition t0 Plaintiff’s Motion t0 Continue Action as “J Doe” (“Tenhoff Declaration”) at 11 2, Exhibit A.) In their email response 0n November 16, 2020, Defendants’ counsel responded that they would not agree t0 stipulate t0 the use 0f the pseudonym “J Doe” in this case and that they reserved “all rights t0 oppose any such designation.” (Tenhoff Declaration at 11 3, Exhibit B.) Defendants’ counsel also indicated that there was n0 need t0 include 246893534 v4 1 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information regarding Plaintiffs diagnosis 0r other medical details into the complaint. (Id.) However, Defendants’ counsel indicated that they would be willing t0 consider an appropriate protective order after review 0f a file-endorsed Complaint, since the Complaint had not yet been filed. (Tenhoff Declaration at 11 4.) On November 23, 2020, Plaintifffiled the Complaint against both Roku and Roku employee Long-Ji Lin, an individual, alleging employment-related causes 0f action, including disability discrimination, failure t0 engage in the interactive process, failure t0 provide reasonable accommodations, retaliation, wrongful termination, infliction 0f emotional distress (“HED”), and negligent infliction of emotional distress (the “Complaint”). In the Complaint, which was subsequently amended 0n March 25, 2021, Plaintiff generally alleges that Plaintiff suffered from “medical issues that caused Plaintiff t0 become temporarily disabled” and “mental instability resulting from Schizoaffective Disorder, Bipolar Type.” (Complaint at 11 13.) Soon after Plaintiff filed the initial Complaint 0n November 23, 2020, and before Plaintiff even served Defendants with the Complaint, 0n December 7, 2020, Plaintiff filed an Application seeking a preliminary injunction “restraining and enjoining Defendants” from engaging in the following conduct for the remainder 0f the litigation: (1) identifying Plaintiffs true name or referring to Plaintiff by any name other than “J Doe” in these Court proceedings and/or in any document filed with the Court, unless filed under seal; and (2) making any statements t0 the media, 0r any person other than Defendants, Defendants’ directors, Defendants’ officers, Defendants’ counsel, Plaintiff, 0r Plaintiffs Counsel that identifies Plaintiff as the individual bringing this lawsuit unless such disclosure is necessary t0 litigate the action, and then only if such individual agrees in writing t0 be bound by the same order. (Tenhoff Declaration at 11 7.) Prior to filing this first Application, Plaintiff” s counsel did not contact Defendants’ counsel t0 request a stipulation t0 any such relief, nor t0 even discuss these subjects. (Tenhoff Declaration at 11 7). Moreover, Plaintiff” s counsel did not provide Defendants with any notice whatsoever 0f the Application, even though Plaintiff’s counsel knew the identities 0f the attorneys for Defendants and knew as 0f December 9 that Defendants’ counsel was authorized t0 accept service 0n both Defendants’ behalf. (Tenhoff Declaration at 11 7.) 2 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This failure t0 provide notice violated California Rules 0f Court 5.165 and this Court’s Local Rule 8(f) requiring notice be given t0 all parties 0r their attorneys n0 later than 10:00 am 0n the court day before the matter is t0 be considered by the Court. And Plaintiff did not have good cause t0 waive notice under California Rules 0f Court 5.165(b)(2). Because Plaintiff failed t0 provide Defendants with notice, 0n December 9, 2020, this Court denied Plaintiffs Application. (Tenhoff Declaration at 11 8.) Pursuant t0 this Court’s Order, Plaintiff eventually provided notice 0f their Application and supporting documents seven days later 0n the afternoon 0f December 16, 2020, for a hearing noticed for December 18, 2020, at 8: 15 am. (Tenhoff Declaration at 11 8.) On December 18, 2020, the parties participated in a telephonic hearing on Plaintiffs Application, which was denied by Judge Kirwan. (Tenhoff Declaration at 11 9, EX. E.) Judge Kirwan ordered Plaintiff to file a motion 0n Plaintiffs ability t0 pursue this case as a “Doe” Plaintiff, and noted that, prior t0 any such motion being heard and decided, Defendants had stipulated through their counsel that they would not file anything in this Court that identified the Plaintiffby name (unless under seal). Judge Kirwan further ordered the parties t0 negotiate in good faith with respect t0 a stipulated protective order that governs the use 0f confidential information in connection with this case. (Id.) Following the hearing, the parties entered into a stipulated protective order governing the use 0f confidential information in this matter (the “Protective Order”). (Tenhoff Declaration at 11 10, EX. F.) The Protective Order was approved and entered by the Court 0n February 17, 2021. (Tenhoff Declaration at 11 10, EX. F.) The Protective Order allows either party t0 designate any materials containing information that it believes in good faith is “Confidential.” (See EX. F.) And “Confidential” is broadly defined t0 include “any information which the Party believes in good faith t0 constitute, contain, reveal 0r reflect confidential, trade secret, and/or proprietary information,” which includes, but is not limited t0, “sensitive medical information.” (EX. F.) (Emphasis added.) Additionally, from the date the Protective Order was signed by the parties until the hearing on this Motion, “Confidential” information under the Protective Order also includes Plaintiff” s true name. (EX. F.) Even if this Motion is granted, Plaintiff” s true name still will remain 3 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Confidential.” (Ex. F.) Importantly, the Protective Order fully protects any materials designated as “Confidential” from public disclosure in that it only permits a subset 0f entities t0 have access t0 such information. (EX. F.) Specifically, access t0 and disclosure 0f any “Confidential” information is limited t0 the following: (i) the Court; (ii) the parties; (iii) the attorneys 0f record; (iv) in-house counsel for the parties; (V) those officers, directors, partners, members, employees and agents 0f all non- designating parties that counsel deems necessary t0 aid counsel in the prosecution and defense 0f this lawsuit; (Vi) court reporters; (Vii) any deposition, trial 0r hearing witness in the proceeding who previously has had access t0 “Confidential” materials, 0r who is currently 0r was previously an officer, director, partner, member, employee 0r agent 0f an entity that has had access t0 such materials; (viii) any deposition 0r non-trial hearing witness, mock jury participants, experts, and non-party witness only after they agree t0 be bound by the Protective Order in writing. (EX. F.) Additionally, if any “Confidential” information is t0 be used in any motion 0r court proceedings, it shall be filed under seal pursuant t0 the California Rules 0f Court. (EX. F.) As such, any “Confidential” information would not be publicly accessible. This Motion is the motion that Judge Kirwan ordered Plaintiff t0 bring as t0 her ability t0 continue as a “Doe” plaintiff in this case. For the reasons set forth below, Defendants oppose this Motion. III. LEGAL ARGUMENTS. A. Plaintiff Has N0 Legal Basis for Proceeding as a Doe Plaintiff. Plaintiff bears the burden 0f showing that Plaintiff is entitled t0 the use 0f a pseudonym here. See Does I thru XXIII v. Advanced Textile Corp. , 214 F.3d 1058, 1069 (9th Cir. 2000) (finding the district court abused its discretion when “concluding that risks 0f extraordinary economic injury are insufficient as a matter 0f law t0 satisfy plaintiffs’ burden” t0 seek permission t0 proceed anonymously) (emphasis added); National Commodity & Barter Assn. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (“Absent permission by the district court t0 proceed anonymously and under such other conditions as the court may impose (such as requiring disclosure 0f their true identity under seal), the federal courts lack jurisdiction over unnamed parties, as a case has not been 4 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 commenced with respect t0 them”). Here, Plaintiff cannot show that the use 0f a pseudonym is appropriate here, both as a matter 0f policy and as a matter 0f law. 1. Proceeding Anonymously Is Disfavored as a Policy Matter. Requiring plaintiffs t0 use their true name advances the First Amendment policy favoring public scrutiny ofjudicial proceedings - a policy which is fundamental under both California and federal law. Indeed, under California law, the public has an interest in having access t0 court records, which are presumed t0 be open. Cal. Rules 0f Court § 2.550(0). And under federal law, the U.S. Supreme Court has stated that a “trial is a public event” and that “[w]hat transpires in the courtroom is public property.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). Moreover, there is a “presumption that parties’ identities are public information.” Doe v. UNUMLife Ins. C0. 0fAm., 164 F.Supp. 3d 1140, 1144 (ND. Cal. 2016). Thus, given the public nature 0f legal proceedings, requiring parties t0 use the true names “protects the public’s legitimate interest in knowing all the facts and events surrounding court proceedings.” Doe v. Rostker, 89 F.R.D. 158, 160 (ND. Cal. 1981). On the other hand, the “use 0f fictitious names runs afoul 0f the public’s common law right 0f access t0 judicial proceedings.” Advanced Textile Corp, 214 F.3d at 1067; see also Doe v. Blue Cross & Blue Shield United 0f Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) (“Identifying the parties t0 the proceeding is an important dimension 0f publicness. The people have a right t0 know who is using their courts.”). The use 0f the parties’ true names is also important because it guarantees fairness. Bluntly, it is simply unfair to allow Plaintiff t0 hide behind the Doe status when Defendants (including an individual Roku employee whom Plaintiffhas sued for intentional infliction 0femotional distress 1), accused 0f Violating discrimination statutes and intentionally inflicting emotional distress on Plaintiff, have no similar protections: [T]he mere filing of a civil action against other private parties may cause damage t0 their good names and reputations and may also result in economic harm. Defendant[s] law firms stand publicly accused 0f serious Violations 0f federal law. Basic fairness dictates that those among the defendants’ accusers who wish t0 1 Since Plaintiff is not allowed t0 bring a cause 0f action against Mr. Lin for any claims under FEHA, Plaintiff nevertheless has sued Mr. Lin personally by way 0f the HED claim. See Reno v. Baird, 18 Cal. 4th 640, 663 (1980) (holding “individuals who d0 not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts”). OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 participate in this suit as individual party plaintiffs must d0 so under their real names. Southern Methodist University Assn. 0fWomen Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). Because 0f these important policy considerations, Doe status is highly disfavored. Only in the exceptional case may a plaintiff proceed with a lawsuit under a fictitious name. See Doe v. Frank, 951 F.2d 320, 323 (1 1th Cir. 1992). 2. Plaintiff’s Doe Status Is Not Warranted Because Plaintiff Has Failed t0 Show Any Exceptional Circumstances t0 Support the Use 0f a Pseudonym. While there is a dearth 0f case law in California state courts analyzing the standards as t0 when a party is allowed t0 use a pseudonym, California courts have cited approvingly the standard articulated under federal law. See Starbucks Corp. v. Superior Court, 168 Cal. App. 4th 1436, 1452 fn.7 (2008); Doe v. Lincoln Unified School Dist, 188 Cal. App. 4th 758, 767 (2010). Under federal case law, courts have held that plaintiffs seeking Doe status must show a strong interest in proceeding anonymously; specifically when the case involves “matters which are highly sensitive, such as social stigmatization, real danger ofphysical harm, 0r where the injury litigated against would occur as a result 0f the disclosure 0f the plaintiff’s identity.” Rostker, 89 F.R.D. at 162 (emphasis added); see also Advanced Textile Corp, 214 F.3d at 1069 (noting that the courts have permitted the use 0f pseudonyms where the identification creates a risk 0f retaliatory physical 0r mental harm, matters 0f a highly sensitive and personal nature, and where the anonymous party is compelled t0 admit her 0r her intention t0 engage in illegal conduct, creating a risk of criminal prosecution). Additionally, the plaintiff must show that the “need for anonymity outweighs prejudice t0 the opposingparty and thepublic ’s interest in knowing theparty ’s identity. ” Lincoln Unified School Dist, 188 Cal. App. 4th at 767 (2010) (emphasis added). Critically, the threat that the “plaintiffmay suffer some embarrassment 0r economic harm is not enough.” Rostker, 89 F.R.D. at 162. As noted above, Plaintiff bears the burden 0f showing that such circumstances exist. See Advanced Textile Corp, 214 F.3d at 1069. Plaintiff has not met this burden. Plaintiff concedes that there is n0 risk 0f physical 0r mental harm from the disclosure 0f Plaintiff” s true name, or that identifying Plaintiff” s name would create a risk 0fcriminal prosecution 6 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for Plaintiff. (See Motion at 5:7-8) As such, Plaintiffs sole justification for using a pseudonym is based 0n Plaintiffs belief that litigating the case would necessarily involve disclosure 0f Plaintiff” s mental health condition, that such disclosure is purportedly “highly embarrassing and personal,” and that a pseudonym is needed t0 protect Plaintiffs privacy from those “embarrassing” details. (See Motion at 7:8-9, 26-28.) While Plaintiffmay subj actively believe that allegations concerning Plaintiff” s purported mental disability that may be disclosed in the litigation are embarrassing and personal, such allegations are insufficient t0 justify the use 0f a pseudonym. In the past, courts have only allowed plaintiffs t0 use a pseudonym in cases in which embarrassing 0r highly personal matters may be involved when the matters are 0futmost intimacy, such as matters involving abortion, the well-being 0f children, and religion. SeeDoe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974) (allowing plaintiffs challenging the state’s abortion law t0 proceed anonymously); Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (allowing plaintiffs, who were young children, t0 use pseudonyms in a case under the Establishment Clause); James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (couple requesting t0 proceed anonymously in order t0 protect children’s well-being). However, courts have routinely held that a party’s alleged disability, including allegations 0f a mental disability, d0 not necessitate the use 0f a fictitious name, especially when there are n0 threats 0f retaliation 0r injury. In fact, there are a host 0f cases where courts drew the line at allowing a plaintiff t0 proceed under a pseudonym when the desire t0 remain anonymous was based upon potential embarrassment in connection with an alleged mental disability 0r because the plaintiff allegedly behaved erratically, as is the case here. For instance: o Doe v. UNUM Life Ins. C0. 0fAm., 164 F.Supp. 3d 1140 (N.D. Cal. 2016) - The court denied plaintiffs request t0 use a pseudonym. The plaintiff asserted that anonymity was needed given that he was a “well-known lawyer” and that he “suffers from severe mental illness and public disclosure 0f his health condition will only aggravate his illness. ”’ Id. at 1145. The court found that such interests - concerns over his legal career, potential embarrassment, 0r increased anxiety - are insufficient t0 warrant anonymity, especially when there is n0 danger 0f physical harm. Id. o Doe v. Indiana Black Expo, 923 F.Supp. 137 (S.D. Ind. 1996) - The court held that plaintiff could not proceed with litigation under a fictitious name in an employment discrimination lawsuit, even though Plaintiff had a history 0f substance abuse and mental health hospitalizations. Id. at 143. In particular, the court found that the plaintiff” s concerns for his “economic well-being and possible embarrassment 0r humiliation,” are insufficient 7 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 “overcome the strong presumption in favor 0f requiring parties t0 sue using their true names” and that these concerns “could be raised by plaintiffs in many employment discrimination cases, including many asserting claims for discrimination based upon disabilities.” Id. at 142. 0 Doe v. Blue Cross & Blue Shield United 0f Wis., 112 F.3d 869 (7th Cir. 1997) - The court found that the use 0f a fictitious name because the plaintiff suffered from a psychiatric disorder, was not grounds for concealing plaintiff” s identity. Id. at 872. o Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) - In a disability discrimination case, the court declined t0 allow plaintiff t0 proceed anonymously, who feared disapproval in his community because 0f his alcoholism. Id. at 324. The fact “that Doe may suffer some personal embarrassment, standing alone, does not require the granting 0f his request t0 proceed under a pseudonym.” Id. 0 Doe v. City ofNew York, 201 F.R.D. 100 (S.D.N.Y. 2001) - In a case where Plaintiff, an attorney, got into an altercation with a taxicab driver and the police, which included Plaintiff entering a psychiatric unit and was seen by a psychiatrist, the court denied Plaintiff” s request t0 use the “Jane Doe” pseudonym given that “reputational injury” was insufficient t0 justify the privacy protection. Id. at 102. As these cases show, the fact that Plaintiff may suffer embarrassment from the disclosure 0f a purported medical disability is insufficient t0 overcome the public’s right t0 judicial proceedings. Especially, as is the case here, other than a blanket statement that such details are embarrassing, Plaintiff has not offered any evidence whatsoever that Plaintiff would suffer anything more than potential embarrassment 0r humiliation. And t0 the extent that Plaintiff argues that Plaintiffwould be stigmatized by potential employers, thus affecting Plaintiff” s ability t0 secure subsequent employment, courts have generally “rejected attempts t0 proceed under fictitious names where plaintiffs are concerned solely with economic well-being.” Doe v. Goldman, 169 F.R.D. 138, 141 (D. Nev. 1996) (Citing Indiana Black Expo, Ina, 923 F. Supp. at 142). Moreover, plaintiffs in employment discrimination cases routinely litigate cases in both state and federal courts using their own names even though such cases may involve facts 0f a highly personal 0r “embarrassing” nature, such as allegations about medical condition (in disability discrimination cases), poor performance, misconduct, 0r even accusations 0f unlawful criminal conduct. Indeed, if protecting parties from embarrassment is a compelling interest t0 justify restrictions 0n the public’s access t0 the courts, then Defendants could similarly ask that Mr. Lin remain anonymous in this lawsuit given that the allegations concerning Mr. Lin in the Complaint, which are attacks 0n his character, are highly embarrassing and sensitive. Allowing Plaintiff to use 8 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a pseudonym could invite plaintiffs in disability discrimination cases t0 initiate their lawsuits anonymously, which can turn into a slippery slope. See Indiana Black Expo, Ina, 923 F. Supp. at 142 (“The concerns this plaintiff has raised are concerns that could be raised by plaintiffs in many employment discrimination cases, including many asserting claims for discrimination based upon disabilities”); see also Southern Methodist Univ. Assn. 0f Women Law Students, 599 F.2d at 713 (plaintiff “face[s] n0 greater threat 0f [job-related] retaliation than the typical plaintiff alleging Title VII Violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits against law firms”). In the Motion, Plaintiff heavily relies 0n the case Doe v. Lincoln Unified School District, in support 0f its position that the use 0f a pseudonym is appropriate here. However, that case is not relevant t0 this Motion since that court never even decided the “Doe” issue. Specifically, the court in Lincoln never considered the legal merits 0fwhether the plaintiff in that matter could proceed as a “Doe” plaintiff - the defendant in that case failed t0 provide any legal argument as t0 why the plaintiff could not proceed under a pseudonym (other than a blanket assertion that fictitious names can never be used), and thus, the Lincoln court declined t0 “consider the issue further.” 188 Cal. App. 4th at 767 (“Because defendants fail t0 present any argument as t0 why plaintiff should not have been permitted t0 use a fictitious name under the circumstances 0f this case, we need not consider the issue further”). Given that there is n0 analysis in Lincoln 0fwhich Plaintiff could rely upon here, the fact that the plaintiff did litigate as a “Jane Doe” in Lincoln, is unavailing here? Nor is the case James v. Jacobsen, a case out 0f the Fourth Circuit which Plaintiff cited at length in the Motion, instructive here given that the facts and the issues examined by the Court in James differed from the case here. In particular, the main issue in James was whether 0r not the lower court had abused its discretion in denying plaintiffs’ request t0 proceed anonymously t0 protect their children, in a case where there the mother was artificially inseminated with her doctor’ s sperm. See 6 F.3d at 238. The court concluded that the district court had abused its discretion given that it more 0r less made its decision based 0n a “general disapproval 0f party anonymity at 2 In examining California case law 0n this issue, while it is true that there are cases in which a plaintiffused a “Doe” pseudonym in the lawsuit, it appears that in those instances, the use 0f “Doe” was not challenged and/or the issue was not ruled upon by the court. 9 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial” and that it failed t0 balance the prejudice t0 defendants against the children’s well-being, and thus, its decision was uninformed. Id. at 242. Even then, the court did not conclusively determine that the plaintiffs would be able t0 proceed using pseudonyms but rather, remanded the decision t0 the lower court. Id. at 243. As such, given the line 0f cases that actually found that the disclosure 0f a purported disability and any facts and records that may be disclosed as part 0f the litigation is insufficient t0 justify a plaintiffs use 0f a fictitious name, this Court should deny Plaintiff” s request t0 d0 so here. B. The Use 0f a Pseudonym Is Unnecessary In Light 0f the Parties’ Protective Order. Not only does Plaintiff fail t0 meet the legal requirements t0 proceed as “Doe,” Plaintiff’s Motion t0 continue as “J Doe” is also unnecessary given the parties’ Protective Order entered by the Court 0n February 17, 2021. (See EX. F.) As noted above, the parties’ Protective Order is robust in that it protects any “Confidential” information in this case from public disclosure. Specifically, either party can designate any information that it in good faith believes constitutes “Confidential” information, which is defined broadly as “confidential, trade secret, and/or proprietary information.” (EX. F. at 11 1.0.) And the Protective Order expressly provides that “sensitive medical information” is “Confidential” information. (Id.) Under the Protective Order, any “Confidential” information can only be made available t0 an enumerated list 0f individuals as provided in Section II above, and if any “Confidential” information is included in any motion 0r proceeding, it shall be filed under seal pursuant t0 the California Rules 0f Court. (EX. F. at 11 17.) In other words, such information would not be available t0 the public. Given the protections under the Protective Order, should any sensitive medical information be revealed during this litigation, Plaintiff already has a court-ordered mechanism in place that protects Plaintiff” s privacy. That is, if there is any sensitive information that Plaintiffdoes not want disclosed t0 the public, Plaintiff can designate such information as “Confidential,” and this information would not be revealed t0 the public. Plaintiff’s claims her request t0 continue the action as “J Doe” is due t0 Plaintiffs desire t0 preserve Plaintiffs privacy as it relates t0 Plaintiff” s 10 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 medical information, however, the Protective Order that the parties already have in place, serves that purpose 0f protecting Plaintiffs privacy. In light 0f the Protective Order, there is n0 need for Plaintiff t0 use a pseudonym and it is unclear what additional purpose a pseudonym would serve. Indeed, Plaintiff has not (and cannot) shown how the Protective Order is insufficient in protecting Plaintiff” s privacy as it relates t0 Plaintiff” s medical condition here.3 C. Defendants Will Be Prejudiced By Plaintiff’s Use 0f a Pseudonym. 1. Defendants Will Be Prejudiced In Their Defense 0f the Lawsuit. This Court should further deny this Motion given that the prejudice t0 Defendants outweighs Plaintiffs need for anonymity, especially since the Protective Order fully protects Plaintiff” s privacy with respect t0 any sensitive medical information. Plaintiff attempts t0 argue in the Motion that the prejudice t0 Defendants in Plaintiffs use of a pseudonym is minimal since Plaintiffs only request is that the parties use the pseudonym “J Doe,” and that Defendants can investigate the matter as they wish. (See Motion at 8:5-6.) But Plaintiffs contention that the prejudice is minimal simply because the only item kept private is Plaintiff” s true name, oversimplifies the issue. Defendants would still be hindered in the discovery process without the ability t0 invoke her true name. As an example, it is not clear from the Motion how Defendants are t0 conduct all other facets 0f litigation, such as taking depositions - for instance, would attorneys for Defendants be precluded from using Plaintiff’s true name in depositions? If not, then Defendants would be severely limited because Defendants cannot adequately conduct depositions without identifying Plaintiff in connection with the case. Also, Defendants’ ability t0 conduct an open trial would be compromised without being able t0 use Plaintiff” s true name in questioning witnesses in an open courtroom, as it may cause confusion for the witnesses as t0 who is being referenced as “J Doe.” Moreover, while Plaintiffnow argues in the Motion that Defendants can use Plaintiffs true name in conducting witness interviews, subpoenaing records, and conducting their investigation 3 T0 the extent that Plaintiff argues that the Protective Order does not cover the Complaint already filed, because it was Plaintiffs decision t0 include sensitive medical information in the Complaint, Plaintiff could also amend the Complaint t0 remove those details. Plaintiff could also place the prior Complaint’s file under seal, which Defendants would be willing t0 stipulate t0. 1 1 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (See Motion at 8:8-10), Plaintiff makes n0 mention 0f whether those witnesses and recipients 0f the subpoenas are precluded from disclosing Plaintiff” s true name. If so, then that would essentially amount t0 a “gag order” 0n potential witnesses, hindering their right t0 free speech. But if not, then it begs the question as t0 how Plaintiffs privacy could be protected here when witnesses are allowed t0 use Plaintiffs true name publicly in connection with this case. This suggests that using a pseudonym is unnecessary and pointless given that the relief Plaintiff is seeking won’t even truly protect Plaintiff s privacy, especially when the Protective Order already protects Plaintiff” s medical information from disclosure. Furthermore, Plaintiff argues in the Motion that the public would have access t0 all 0f the facts in this case except Plaintiff’s true name, t0 show that Defendants won’t be prejudiced by Plaintiff” s use 0f a fictitious name here. However, again, if Plaintiff is concerned about protecting Plaintiff” s privacy, then it is also questionable how Plaintiff testifying in public in an open courtroom, even if Plaintiff” s true name is not used, would serve t0 protect Plaintiff” s privacy given that participants are able t0 personally witness Plaintiff testifying and be able t0 connect the purported disability t0 Plaintiff. Therefore, the relief that Plaintiff requests here again won’t offer the privacy protection that Plaintiff is seeking, and as such allowing the Plaintiff t0 use a pseudonym serves n0 purpose. And there are less restrictive means available that would both allow Plaintiff t0 use Plaintiff” s true name as well as protect any sensitive medical information, as Plaintiff even recognizes in the Motion. For instance, the parties can (and have already) agree that any sensitive medical information be subject t0 a protective order, and/or file certain documents with any specific sensitive medical information under seal. (See Motion at 8: 12.) 2. Defendants Will Be Prejudiced In the Public Forum. Importantly, the prejudice 0n Defendants extends even beyond Defendants’ ability t0 litigate this matter. In particular, allowing Plaintiff t0 use a pseudonym would hinder Defendants’ ability t0 defend themselves from adverse publicity, which is a right that is recognized by case law. As noted above, requiring that the parties litigate using their true names guarantees fairness given that the filing 0f a lawsuit causes damage, both reputationally and economically, t0 defendants that 12 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are “publicly accused 0f serious Violations.” Southern Methodist University Assn. 0f Women Law Students, 599 F.2d at 713. As such, there is a strong public interest in the Defendants’ ability to respond publicly t0 defend both their reputations, both in the courts and also in other dealings. See Indiana Black Expo, Ina, 923 F.Supp. at 142. Here, Plaintiff has waged serious attacks 0n the Defendants’ character and reputation, including Violations 0f employment laws. For Roku, these attacks could hinder its reputation and its business dealings with other companies and in the public; for Mr. Lin, these attacks could severely harm his reputation and any potential employment prospects, which are the same concerns that Plaintiff shares if Plaintiffs true name was disclosed. Accordingly, it is patently unfair t0 allow Plaintiff to hide Plaintiffs alleged disability after Plaintiff has publicly accused Defendants ofwrongdoing here. See Indiana Black Expo, Ina, 923 F.Supp. at 141-42 (“Basic fairness requires that where a plaintiffmakes [accusations going t0 defendant’ s integrity and deliberate wrongdoing] publicly, he should stand behind those accusations, and the defendants should be able t0 defend themselves publicly”). What Plaintiff really seeks is t0 protect Plaintiffs ability t0 selectively disclose Plaintiffs alleged disability. Plaintiffhas already disclosed t0 Roku the nature 0fPlaintiff” s medical condition in connection with Plaintiff” s Roku employment. Now, all 0f a sudden, Plaintiff is not willing t0 reveal such information even though Plaintiff has brought a public lawsuit in court accusing Defendants 0f discriminating against her 0n the basis 0f this very same alleged disability. This Court should not sanction Plaintiff” s propensity for selective disclosure under these circumstances. Plaintiff also appears t0 suggest that Defendants are not prejudiced given that Defendants already know the true identity 0f Plaintiff. (See Motion at 8:13-19.) But any such argument is irrelevant, as Defendants ability t0 defend themselves would still be hindered by Plaintiffs use 0f a pseudonym. See Indiana Black Expo, Ina, 923 F.Supp. at 131 (denying plaintiffs request t0 use a pseudonym even when the defendant was aware 0f Plaintiffs true identity and noting that even though Plaintiffwas aware 0fPlaintiff” s identity, “the anonymity plaintiff seeks would significantly hamper their ability t0 defend themselves from adverse publicity and other collateral, but often inevitable, effects 0f civil litigation”). 13 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940) COOLEY LLP ATTORNEYS AT LAw PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In sum, the harm that would result t0 Defendants as a result 0f the pseudonym outweighs Plaintiff” s need t0 proceed as “J Doe,” especially when a pseudonym is not needed given the parties’ Protective Order fully protecting Plaintiffs medical information from public disclosure. IV. CONCLUSION. For the foregoing reasons, Defendants respectfully request that this Court deny Plaintiffs request t0 continue the action as “J Doe” and require that Plaintiff further amend the Complaint to include Plaintiffs true name. Dated: April 16, 2021 COOLEY LLP figflfiafif5.1g» By: Gregory C. Tenhoff(154553) Helen Luu (300759) Joshua E. Elefant (3 12913) Attorneys for Defendants Roku, Inc. and Long- Ji Lin 14 OPPOSITION T0 PLAINTIFF’S MOTION T0 CONTINUE ACTION As “J DOE” (CASE N0. 20CV373940)