Civil Action No: 00-1960, SECTION: "T" (4)
April 17, 2001
ORDER AND REASONS
On December 27, 2000, the plaintiff, Victoria W. ("plaintiff"), filed a Motion for a Protective Order to Safeguard the Confidentiality of Her True Identity (doc. #26), pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. She seeks an order from the Court instructing the defendants, the Terrebonne Parish Consolidated Government ("TPCG"), Terrebonne Parish Sheriff Jerry J. Larpenter, William F. Dodd, Dave Norman, Joe Null, Ed Byerly, and Dr. Charles Spence (collectively, "defendants"), not to use her true name in documents filed with the Court or, in the alternative, requiring that all such documents be kept under seal. She also moves the Court to order the defendants and their attorneys in this litigation to keep her true name confidential and to instruct their employees and experts to do the same.
I. Factual and Procedural Summary
The plaintiff, an inmate with the Terrebonne Parish Criminal Justice Complex, filed suit against the defendants on July 5, 2000, alleging that their policy of denying inmates the right to have an abortion violated her civil rights. The plaintiff alleges that as a result of the defendants' policy, she underwent a caesarean section and gave birth to a child whom she ultimately gave up for adoption. She seeks to recover damages for physical discomfort, pain, severe emotional distress and humiliation.
On January 8, 2001, defendants Larpenter, Dodd and Null filed a Memorandum in Opposition to Motion for Protective Order (doc #30), requesting that they not be required to communicate the plaintiff's identity to approximately 400 deputies of the Terrebonne Parish Sheriff's Office.
Defendants Norman, Byerly, Spence, and TPCG have not opposed the instant motion and have indicated their willingness to stipulate that they will not use plaintiff's true name in court documents and will instruct their employers and experts to maintain the plaintiff's identity in confidence. Defendants Larpenter, Dodd, and Null, on the other hand, have opposed the motion only insofar as granting it seeks to require them to notify all Terrebonne Parish Sheriff's Deputies of the plaintiff's identity and then instruct them to maintain it in confidence.
Larpenter, Dodd, and Null do not object to maintaining the plaintiff's anonymity in court documents. As a result, the defendants are ordered to maintain the anonymity of the plaintiff in all documents filed with the Court.
The remaining issue for the Court's consideration is whether the order should be extended to require the defendants to communicate the plaintiff's identity to the 400 deputies and restrict them from disclosing her identity.
The Court observes that courts are public institutions that serve a public purpose. There is, therefore, a strong presumption that the proceedings and records should be subject to public scrutiny. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Several Circuits, including the Fifth, have recognized that the public has a broad right of access to court proceedings, civil as well as criminal, that is grounded in the First Amendment. See Doe v. Stegall, 653 F.2d 180 (5th. Cir. 1981). Accord Doe v. Madison School Dist. No. 321, 147 F.3d 832, 833 n. 1 (9th Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir. 1999) (en banc); Westmoreland v. CBS, Inc., 752 F.2d 16, 23 (2d Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984); In re Continental Ill. Secs. Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984) Brown Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983).
Moreover, although courts have not construed the text of the Federal Rules of Civil Procedure so strictly, on their face the Rules would initially appear to preclude a plaintiff from using a pseudonym. See Fed.R.Civ.P. 10(a) ("In the complaint the title of the action shall include the names of all the parties").
Only in rare instances have parties been allowed to proceed anonymously. To decide whether to grant this exception to its ordinary practices, a court must "balanc[e] considerations calling for maintenance of a party's privacy against the customary and constitutionally embedded presumption of openness in judicial proceedings." Stegall, 653 F.2d at 186. Although not"a rigid, three-step test," id. at 185, three considerations figure prominently in this analysis: whether a plaintiff challenges governmental policy, whether prosecution of the suit would require the plaintiff to reveal personal information "of the utmost intimacy," and whether the plaintiff would be admitting to an intent to engage in criminal activity. See id. (quoting Southern Methodist Univ. Ass'n of Women Law Students v. Wynne Jaffe, 599 F.2d 707, 713 (5th Cir. 1979)).
Underlying all three factors is the question of whether the plaintiff would be likely to suffer real and serious harm if she was not allowed to use a pseudonym. Anonymity is still the exception: "[t]he risk that a plaintiff may suffer some embarrassment is not enough." Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992). The plaintiff contends that abortion is the quintessential matter of "utmost intimacy," and that for challenging a policy regulating something so contentious and controversial, she could be subjected to harassment and even violence. Defendants Larpenter, Dodd, and Null argue that these potential dangers are entirely speculative, unlike the real threats made to the plaintiffs challenging Mississippi's school-prayer policies in Stegall, some of whom, unlike the plaintiff here, were children.
The Court need not, however, reach the question of whether the Stegall factors apply in this case, because even assuming arguendo that they do, requiring defendants Larpenter, Dodd, and Null to reveal plaintiff's identity to several hundred Sheriff's deputies, and then to instruct those deputies to maintain her identity in confidence, would not remedy any harm, real or speculative. Rather than aiding in the "maintenance of [her] privacy," Stegall, 653 F.3d at 186, this would disclose her identity to a broader spectrum of individuals. The greater the number to whom her identity is disclosed, the greater the chance that the confidentiality she seeks will be breached.
IT IS ORDERED that the plaintiff's Motion for a Protective Order to Safeguard the Confidentiality of Her True Identity (doe. #26) be GRANTED IN PART as follows:
1) The defendants and their attorneys are hereby ORDERED not to use the plaintiffs true name in documents filed with the Court.
2) The defendants and their attorneys are hereby ORDERED to keep the plaintiffs true name confidential, and to instruct their witnesses in this case, and those of their employees who are now or subsequently become involved in this case, to maintain her anonymity.IT IS FURTHER ORDERED that the plaintiffs Motion for a Protective Order to Safeguard the Confidentiality of Her True Identity (doc. #26) be, and hereby is, DENIED IN PART such that the defendants are not required to disclose the plaintiff's identity to their employees who are not directly involved in this case — specifically the Terrebonne Parish Sheriff's Deputies.