Response ReplyCal. Super. - 6th Dist.November 23, 2020\OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O 200V37394O Santa Clara - Civil Electronically Filed Howard L. Magee (State Bar N0. 185199) by Superior Court of CA, Larry W. Lee (State Bar No. 228175) county of Santa Clara, MaX W. GaVI'OIl (State Bar NO. 291697) on 4/22/2021 3.32 PM DIVERSITY LAW GROUP, A Professional Corporation Reviewed By: R_ Nguyen 515 South Figueroa Street, Suite 1250 case #Zocv373940 Los Angeles, California 90071 Envelope: 6298270 (213) 488-6555 (213) 488-6554 facsimile Robert Starr (State Bar No. 183052) Theodore Tang (State Bar No. 313294) Manny Starr (State Bar No. 3 19778) FRONTIER LAW CENTER 23901 Calabasas Road, Suite 2074 Calabasas, California 91302 T: (818) 914-3433 F: (818) 914-3433 Attorneys for Plaintiff J DOE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA J DOE, as an individual, Case N0. 20CV373940 Plaintiff, PLAINTIFF’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO CONTINUE VS. ACTION AS “J DOE” ROKU, INC., a Delaware corporation; LONG-JI Date: April 29, 2021 LIN, an individual, and DOES 1 through 50, Time: 10:00 am inclusive, Dept: 02 Defendants. Complaint Filed: November 23, 2020 Trial Date: None Set I. INTRODUCTION In opposition t0 the present Motion, Defendants have cherrypicked a handful of cases from the Federal District courts that have come down against Doe designations While ignoring authority of equal weight Where the court found Doe designation to be proper. Defendants attempt to bolster 1 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” R. Nguyen \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O their argument by mischaracterizing the nature of the harm Plaintiff seeks to avoid. Finally, Defendants offer that Plaintiff could instead proceed by simply amending the complaint t0 remove core allegations and sealing the previous complaints, despite case law establishing that sealing records is more restrictive 0n public access t0 records than allowing a Plaintiff t0 proceed under a pseudonym. Because each 0f these arguments is without merit, the Court should grant Plaintiff’s motion. II. ARGUMENT A11 parties cite to the same sources of authority for the standard that applies t0 the question of Whether Plaintiffmay use a pseudonym. The sole disagreement it seems is whether that standard is met here. Plaintiff has met that standard, and Defendants arguments t0 the contrary are unavailing. a. Doe Designations are Not Limited t0 Cases Involving Abortion, Children, 0r Religion. Defendant has cited to a number of district court decisions denying a Doe designation where a mental disability was alleged by Plaintiff, While ignoring authority (even authority discussed in the cases Defendants cite t0) that held a different outcome, such as Doe v. Provident Life & Accident Insurance C0,, 176 F.R.D. 464, (E.D.Pa.1997) (granting Doe designation in part because Plaintiff suffered from multiple psychiatric disorders and feared permanent damage to his reputation). Looking at each of these authorities, it is easy to distinguish them from the present case, as Defendants are trying t0 compare a heart attack to a hangnail. DOE v. UNUMLife Insurance Company ofAmerica, 164 F.Supp.3d 1140 (N.D. Cal. 2016) involved a Plaintiffwho suffered from anxiety and an underlying heart condition. Id. at 1142. It is unsurprising that the court rejected anonymity on the basis 0f such a condition - While such conditions may be a source of embarrassment, they are hardly unusual or a source of significant stigma beyond that which attaches t0 any psychiatric ailment. Plaintiff’s condition, in contrast, is a Schizoaffective disorder, Which has caused Plaintiff t0 experience psychotic breaks. Left untreated, symptoms include hallucinations and delusions. (Doe declaration at W26.) These symptoms, and the stigma they invoke, are leaps and bounds above common anxiety disorders. Further, the UNUM court found that Plaintiff’s claims 0fharm t0 career t0 be unpersuasive since Plaintiff did not allege 2 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O that he intended t0 pursue that career in the future and the allegations were that he continued t0 be disabled and unable to work. Id. at 1146. Here, in contrast, Plaintiff intends to pursue Plaintiff’s career as a scientist working in the same field, and has attempted t0 find employment in this field (Doe declaration at 114.) Doe v. Blue Cross & Blue Shield United 0f Wis., 112 F.3d 869 (7th Cir. 1997) is even less persuasive here. That case involved an appeal from a grant 0f summary judgment 0n the grounds that the case was brought too late. Id. at 872. Before reaching the issue on appeal, the Court commented that the use of the Doe designation, which n0 party objected t0, should have been reviewed by the lower court even though no party opposed it. The Court then went on t0 state in dicta that several factors appeared to indicate that the designation was not appropriate. Among those factors was that the psychiatric disorder in questions, obsessive compulsive disorder, was a “common enough disorder-some would say that most lawyers and judges suffer from it to a degree-and not such a badge 0f infamy 0r humiliation in the modern world that its presence should be an automatic ground for concealing the identity 0f a party t0 a federal suit.” Id. Even if this passage were not dicta, the psychiatric issue complained 0f is a far cry from the disorder at issue in this case. Doe v. Frank, 951 F.2d 320 (1 1th Cir. 1992) involved a postal worker who suffered from alcoholism. Id. at 322. The court’s focus was 0n analysis of the effect, if any, of the fact that the Plaintiff in that case was suing a government entity instead of a private employer. Id at 322-324. With regard t0 Plaintiff” s condition, the court merely said that courts have permitted Plaintiffs t0 proceed anonymously in cases involving mental illness, and that it could “find no abuse of discretion in the district court's implicit conclusion that the stigma involved in Doe's disclosure does not rise to the level necessary t0 overcome the presumption of openness in judicial proceedings or the explicit requirements 0f Rule 10(a).” Id. at 324. At most, it can be said that the Frank court decided that that Plaintifi’iv alcoholism was not particularly stigmatic enough. In Doe v. City ofNew York, 201 F.R.D. 100 (S.D.N.Y. 2001), the Plaintiff, an attorney, alleged that she had been falsely arrested and prosecuted in connection t0 a disagreement With a cab driver concerning Whether 0r not she owed any additional fare money 0n a cab ride. Id. at 101. 3 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O Plaintiff further alleged that When she threatened t0 sue the officers who arrested her, she was forced to undergo a psychiatric evaluation, left handcuffed t0 a gumey and then a wheelchair for a significant length of time, all Without the right t0 talk t0 her own attorney. Id. Plaintiff alleged that the prosecutor dropped some of the charges, then allowed the rest to expire Without prosecuting. Id. The case is clearly inapplicable, as the only embarrassing facts alleged in that case were Defendants’ actions. Lastly, Doe v. Indiana Black Expo, 923 F.Supp. 137 (SD. Ind. 1996) involved a Plaintiff who brough claims not only for disability discrimination, but also inter alia sexual harassment, breach 0f contract, misrepresentation, and federal racketeering claims. Id. at 141. In denying anonymity, the court put great weight 0n the fact that Plaintiff was alleging “several forms of serious and deliberate wrongdoing” for which Defendant should have the opportunity t0 defend itself publicly and that the parties’ testimony was “Virtually certain t0 be at odds 0n material matters, so that their credibility will be directly at issue.” Id at 141-142. Here, Plaintiff is not alleging misrepresentations, sexual attacks, racketeering 0r other allegations 0f serious wrongdoing that have nothing t0 d0 with Plaintiff” s condition. Further, Plaintiff anticipates therefore that the testimony 0f the parties is relatively unlikely to be at odds With regard to material facts. Most, if not all, 0f the communications at issue in this case were made in recorded formats such as email 0r “Slack” messages. Other evidence anticipated to be critical in this case are employee records, medical records, expert medical opinions, and the testimony of Defendants and their employees concerning Why they took particular actions. Plaintiff does not anticipate any dispute over the authenticity 0f such documentary evidence, and the testimony 0f others has n0 relation t0 Plaintifi’iv credibility. Certainly, disputes may arise over legal conclusions, medical opinions, and inferences that may be drawn from the documents in this case, but that does not mean that the parties’ testimony is likely t0 be so different as t0 make Plaintiff s credibility a central issue either in the context 0f litigation 0r public opinion. Finally, while substance addiction is a serious condition, it is not a particularly uncommon one. While social stigma for those Who have abused substances certainly exists, it is not as severe as a schizoaffective disorder - particularly When it comes t0 individuals Whose substance use is 4 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O legal or have been living in sobriety for a significant length of time. b. The Existing Protective Order, Without More, Is Inadequate to Protect Plaintiff. Defendants next argue that the existing protective order would be adequate t0 protect Plaintiff’s privacy because it keeps Plaintiff’s medical information out 0f the public View. At the same time, Defendants make much out 0f the fact that conducting a trial With Witnesses Will be difficult and confusing if they are prohibited from using Plaintiff’s real name. But if the use 0f a mere name would be confusing and impractical, how is Plaintiff supposed to conduct trial without talking about the central issues of the case - namely Plaintiff” s symptoms leading up to Plaintiff” s termination and proof 0f a qualifying condition? Plaintiff’s theory 0f the case is that Plaintiff s behavior put Defendants 0n notice early 0n of her condition. How is Plaintiff supposed to present that Without talking about those symptoms? How is Plaintiff supposed t0 prove their case if they, as Defendant suggests, remove those key allegations from the complaint? If litigating without the Plaintiff” s true name would be difificult, litigating without the key facts 0f Plaintiff” s condition would be impossible. c. Depositions and Other Litigation Preparation Would Not Be Materiallv Impacted BV the Doe Designation. Defendants next offer a parade 0f horribles about uncertainty and hamstringing in conducting their investigation and discovery in the case. Specifically, Defendants argue that it is unclear whether attorneys would be permitted t0 use Plaintiff” s true name in depositions, whether the Witnesses would be allowed to, and Whether Witnesses would be allowed t0 discuss the deposition outside the case. The flaw with this logic is that it fails t0 consider that Plaintiff’s name would be placed 0n the same category as everything else in the protective order. There does not appear to be any confusion about whether Plaintiff” s medical providers, for example, would be permitted t0 talk about Plaintiff s psychiatric evaluations in depositions, whether the attorneys would be permitted t0 discuss the same, 0r whether the medical provider would be free t0 discuss that information outside the context 0f litigation. There is n0 concern raised that this amounts t0 a “gag order” with regard to any of this information. T0 the extent there is any concern about how Plaintiff’s name may be 5 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O used, that is grounds for amendment 0f the stipulated protective order, and not for denial of the present motion.1 Further, it is worth noting that Defendants, While arguing that their discovery Will be hampered, are already engaging in the discovery process. The existing restrictions appear t0 have had no impact in Defendants’ ability t0 request and receive information, or meet and confer about the adequacy of responses t0 those requests. (Declaration 0f Theodore Tang at 11112-9.) d. Defendants are Not Preiudiced in the Public Forum. Defendants next argue that it is patently unfair for them t0 be required t0 defend their reputations in the public forum Without being able t0 name Plaintiff, as it would hamper their ability t0 respond publicly. The logic asserted is that Defendants have suffered damage t0 their reputation and potential business dealings by the mere fact that they’ve been named as defendants t0 a lawsuit. T0 be sure, being named as a defendant in a lawsuit does present certain dangers to one’s reputation, even while the lawsuit is pending and even if the lawsuit is not ultimately successful. Defendants have a right t0 assert that the person bringing the claim against them is not credible, and that their allegations are false, not only in the courtroom but in the public forum. But the risk Plaintiff” s inherit when they undertake such a public accusation is that their allegations may turn out to be unfounded, and their credibility tarnished as a result of bringing a false, or at least unproven, claim. This is not the type 0f embarrassment 0r damage that Plaintiff is attempting t0 avoid in this case. Rather, Plaintiff seeks only t0 avoid Plaintiff s identity being associated With Plaintiff s psychiatric condition which, had Defendants not violated Plaintiff” s rights in the first instance, would have remained a private matter. Further, Defendants have failed to articulate how exactly they are hamstrung in the public forum. Plaintiff, by Virtue of the legal theory being pursued, has disclosed details 0f Plaintiff’s disability that Defendant is free t0 argue damages Plaintiff’s credibility. Defendant argues that Plaintiff should be forced t0 disclose Plaintiff” s name, while sealing 0r keeping confidential the very information and facts of the case that Defendant might use t0 attack Plaintiff’s credibility. 1 Plaintiff’ s counsel will 0f course meet and confer in good faith regarding if and how the protective order should be modified to address Defendant’s concerns While continuing to protect Plaintiff’ s anonymity. 6 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O Defendant’s know Plaintiff” s identity? It is difficult t0 fathom how Plaintiff” s name would have more weight in the court 0f public opinion then the fact that Plaintiff suffers from a condition known to cause hallucinations or delusions. Surely, concealing Plaintiff’s name is the less restrictive condition on Defendants ability t0 defend their reputation. e. Other Factors Weigh In Favor 0f Anonymity. Even if Defendant faces some level of hardship as a result of a Doe designation, prejudice to Defendant is only one factor in determining Whether t0 allow a Doe designation. In fact, the test as articulated by DOES I thru XXIII v. Advanced Textile Corp, 213 F.3d 1058, (9th Cir. 2000) is whether Plaintiff s privacy interest overcomes the public’s interest in knowing the identity 0f a party. While no court has created an exhaustive list, courts have listed (1) the universal level 0f public interest in access to the identities 0f litigants; (2) Whether, because 0f the subj ect matter of this litigation, the status 0f the litigant as a public figure, 0r otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest Which is normally obtained; and (3) whether the opposition t0 pseudonym by counsel, the public, or the press is illegitimately motivated as factors touching 0n the public’s interest. Doe v. Provident Life and Acc. Ins. C0., 176 F.R.D. 464, 468 (1997). The universal level 0f public interest is, as the name implies, universal. This universal interest is offset by the public’s interest in preventing the stigmatization 0f litigants With mental illness, Which deters them from Vindicating their rights. Id. Additionally, this case does not involve a public figure, 0r a new law or ruling, or any other factor that would create a heighted public interest in this case. Finally, While Defendants have averted no illegitimate motive for resisting Plaintiff’s motion, Plaintiff is hard pressed to identify a legitimate one either, and a ruling that Plaintiff must proceed with Plaintiff s name 0n the record or not at all would unfairly put tremendous pressure 0n Plaintiff t0 dismiss this case regardless 0f the merits. 2 In their brief, defendants accuse Plaintiff 0f wanting to “selectively disclose” Plaintiff’ s medical information, as evidenced by the fact that this information was already disclosed t0 Defendants, along with their identity. To be clear, Plaintiff does not, and never has, sought to avoid disclosure of any relevant and non-privileged information to Defendants. Plaintiff does not seek t0 avoid disclosure of any medical information. It is Plaintiff’ s identity that Plaintiff seeks to protect, and at that only as against the public, and not as against any party. 7 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE” \OOOQONUl-RUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-bUJNt-‘OKDOOQQUl-bUJNP-‘O f. Using a Doe Designation is Less Restrictive 0n Public Access than Defendant’s Proffered Solution 0f Sealing Documents. California courts have recognized that “Doe designations may be appropriate even where sealing orders are not.” Starbucks Corp. v. Superior Court, 168 Ca1.App.4th 1436, 1452 (fn.7) (4th Dist. 2008) (citing t0 HB. Fuller C0. v. Doe, 151 Cal.App.4th 879 (2007)). This necessarily means that the public’s right t0 access documents is better served by designating a party as a Doe and allowing the public access to a document than it is to seal a document completely. As such, Defendant’s arguments that documents might be sealed as an acceptable alternative are baseless. IV. CONCLUSION Since Plaintiff has a pressing and exceptional interest in keeping Plaintiff” s identity private, Defendants Will not be prejudiced either in court 0r in the public forum, and there are no factors t0 cause an increased public interest in knowing Plaintiff” s identity, Plaintiff” s Motion should be granted DATED: April 22, 2021 FRONTIER LAW CENTER Theodore R. Tang Manny M. Starr Attorneys for Plaintiff J DOE 8 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO CONTINUE ACTION AS “J DOE”
