For a while now, Eugene Volokh has been pushing for transparency in federal court proceedings, following his law review article, The Law of Pseudonymous Litigation. As Eugene recognizes, the strong presumption toward transparency means something very different in the age of Google than it did when identities of litigants were largely unknown in the past.

For many litigants these days, one of the most important questions is: Can I keep my name,
and its connection to the case and its facts, off the Internet? In the past, of course, some litigants wanted to keep their names out of the newspapers, and some still do. But the Internet, and the availability of court records on the Internet, has sharply magnified this concern.

On the one hand, this raises the question about whether people who have done wrong should be able to conceal it from the public. If guilty, few would argue this is a good thing. But if not guilty, where do they go, as former Secretary of Labor Raymond Donovan asked, to get their reputation back?

But there are other genres of cases that raise very different issues of privacy. One issue raised has to do with a suit that reveals personal health and medical information.

Plaintiff expresses that she would like the entire case sealed because she is “experiencing violations and disruptions in my life due [to] very personal and medical information being public.” {Plaintiff filed suit alleging disability discrimination and failure to accommodate under the ADA and the Rehabilitation Act. A clerk’s entry of judgment against the Plaintiff was entered in May 2019 and the case is closed.} While the Court understands Plaintiff’s concerns, Plaintiff has not overcome the strong presumption of public access to judicial documents….

Certainly, there is a public interest that what happens in a court should be open to the public. But does that mean a person who is constrained to sue for disability accommodations has to lay out information so personal as her health and medical information for all the world to see? Sure, she’s availing herself of the legal system to vindicate her rights under the law, but must it come at the cost of letting anyone with google know about her most personal information?

Another mechanism that’s been employed with some regularity, and which Eugene has challenged, is proceeding pseudonymously.

[F]undamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity. C.D. actively has pursued this lawsuit—including by recruiting his co-plaintiff. He seeks over $40 million in damages. He makes serious charges and, as a result, has put his credibility in issue. Fairness requires that he be prepared to stand behind his charges publicly.

The use of pseudonymous pleading is common in Title IX suits against colleges for expelling a student after a sham sex tribunal, which is why almost every case is brought by some guy named “John Doe.” Eugene is challenging these pseudonymous actions as well in furtherance of the public’s right to know who the litigants are. But does it make sense for a person suing over a false accusation to tie his real name to the lie, thus amplifying the false claim that he’s a rapist so the lie can follow him on Google in perpetuity?

But what about the public’s right to know?

Imagine being a reporter who has to write about a Doe v. Roe lawsuit, with no ability to track down people who can offer the story behind the case (except to the extent that the lawyers are willing to provide access to those people)—you could still see the allegations, the parties’ arguments, and the court’s decisions, but without any ability to independently investigate the facts. And of course if that’s accepted as the norm in, say, sexual assault lawsuits (or libel lawsuits over allegations of sexual assault), whole areas of the law could become difficult for the media and the public to monitor, outside the constrained accounts of the facts offered up by judges and lawyers.

Where is the trade-off between the interest of the public and the interests of a litigant not to be tainted in perpetuity, whether by a false accusation, medical information or other personal details that would either chill their ability to vindicate their rights or risk humilitation or reputation on the internet for the rest of their lives? Is our right to be a voyeur on every litigant’s worst moment more important than their right to litigate without risk of their future?

*Tuesday talk rules apply.