Anonymous Designation of a Plaintiff: An Overview

WDC Journal Edition: Winter 2011
By: Sarah “Sally” Fry Bruch, Crivello Carlson, S.C.

No statutory authority permits a plaintiff in a civil case to proceed anonymously.[i] In fact, the privilege of suing or defending under a fictitious name is not to be granted automatically even if the opposing party does not object.[ii] This is because there is a strong presumption in favor of requiring litigants’ names to be public, because the public has an interest in knowing what the judicial system is doing, and that interest is frustrated when any part of litigation is conducted in secret.[iii] Further, if the plaintiff’s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without consequence for the defamer.[iv]

Where claims such as fraud or sexual assault are made, the presumption of the public’s access to the courts to know the facts, including the identity of the parties, may outweigh plaintiff’s privacy concerns.[v] Further, potential harm to the defendant’s reputation must be weighed in deciding whether anonymity will be permitted.[vi] Finally, in the appropriate case it may also be arguable that anonymity would impermissibly burden discovery.

I. Applicable Law

The first objection to any request for anonymity is grounded in statute. Specifically, a request for anonymity is directly contrary to Wis. Stat. § 802.04(1), which requires that the title of plaintiff's complaint “include the names and addresses of all of the parties” and, in pleadings other than the complaint, that the names of the first parties on each side of the suit be listed, with appropriate indication for other parties.[vii] Further, a request for anonymity is also directly contrary to Wis. Stat. § 803.01(1), which requires that actions be prosecuted in the name of the real party in interest.

The Wisconsin statutes on the naming of parties in pleadings are similar to the federal rules addressing the same topics[viii]; accordingly, relevant decisions in the federal system interpreting the analogous federal rules may serve as persuasive authority in interpreting the Wisconsin statutes.[ix] In the Seventh Circuit Court of Appeals and in federal district courts within the Seventh Circuit, courts may not grant a plaintiff’s request to proceed anonymously without an analysis of whether exceptional circumstances apply, because the Seventh Circuit, like most jurisdictions, disfavors anonymous litigation.[x]

In considering a request to proceed anonymously, the trial judge has an independent duty to determine whether exceptional circumstances exist to justify departure from open public access.[xi] In deciding a plaintiff’s request for anonymity, a court weighs the need for a plaintiff’s personal privacy against the defendant’s interests in public disclosure of the plaintiff’s name and the risk of injury to individuals and businesses.[xii]

In weighing the plaintiff’s asserted need for privacy, the court should consider whether state legislation or administrative rules protect the public’s access to court records.[xiii] For example, in Wisconsin, the statutes expressly provide for public access to court records.[xiv] Therefore, when considering a request for anonymity, this protected public right will weigh against the granting of such a request.[xv] As a result, it is not surprising that in most cases where plaintiff’s anonymity has been granted, the plaintiff’s allegations pertained to claims “where the plaintiff’s personal credibility was not seriously at issue and where the claims did not amount to a direct attack on any individual’s integrity or reputation.”[xvi]

Federal courts of appeals and federal district courts have ruled that a court has discretion to permit a party to proceed under a fictitious name, and the court’s decision is reviewed for abuse of discretion.[xvii] In Wisconsin, the erroneous exercise of discretion standard would likely be applicable. Under that standard, the trial court's decision is erroneous if the court fails to engage in a reasoned consideration of the factors relevant to the appropriate legal standard.[xviii] Factors which federal courts including the Seventh Circuit have considered in determining whether to permit anonymity include the following:

(1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; (5) whether the party defending against a suit brought under a anonym would be prejudiced; (6) whether the interests of children are at stake; (7) whether there are less drastic means of protecting legitimate interests of either the party seeking anonymity or the opposing party; (8) the extent to which the identity of the litigant has been kept confidential; and (9) the public interest in knowing the litigants' identities.[xix]

The court considers and weighs these factors to determine whether a plaintiff’s interest in privacy is so significant as to outweigh the strong presumption favoring public identification of litigants.[xx] Importantly, these factors are not an exclusive list, and there is no simple formula to apply.

A good example of this analysis in practice is seen in Doe v. Shakur, a 1996 case from the Southern District of New York.[xxi] In that case, the plaintiff brought a civil tort suit alleging that she was the victim of a violent sexual assault, and made a request to proceed anonymously. In denying her request, the court found that the plaintiff’s privacy concerns were legitimate, but were outweighed by the public’s right to access the information.[xxii] The court reasoned:

First, plaintiff has chosen to bring this lawsuit. She has made serious charges and has put her credibility in issue. Fairness requires that she be prepared to stand behind her charges publicly.

Second, this is a civil suit for damages, where plaintiff is seeking to vindicate primarily her own interests. This is not a criminal case where rape shield laws might provide some anonymity to encourage victims to testify to vindicate the public's interest in enforcement of our laws. Indeed, the public's interest in bringing defendants to justice for breaking the law—assuming that they did—is being vindicated in the criminal proceedings.

Third, [the defendant] has been publicly accused. If plaintiff were permitted to prosecute this case anonymously, [the defendant] would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity.

Finally, the public has a right of access to the courts. Indeed, “lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.”[xxiii]

Requests for anonymity are not always denied, however. For example, in applying the same analysis, Wisconsin federal district courts have permitted plaintiffs bringing civil tort suits to proceed anonymously where anonymity was sought due to HIV-positive status and the plaintiffs' medical records would be subject to discovery.[xxiv] In those cases, HIV-positive status was considered a requisite “exceptional circumstance” sufficient to justify anonymity.[xxv]

II. Discovery Considerations

In addition to concerns about privacy or reputation, an order allowing a plaintiff to proceed anonymously may also impermissibly burden the defendant's important and fundamental right of access to the courts, and interfere with the court’s ability to ascertain the truth.[xxvi] For example, allowing a plaintiff to proceed anonymously may prevent the defendant from disclosing the plaintiff’s name and address during discovery. As a result, when a party is allowed to proceed anonymously, courts are specifically cautioned not to overly interfere by placing undue restrictions on discovery.[xxvii] The right to full, complete and unfettered discovery of even inadmissible evidence[xxviii] is an essential element of our adversary system.[xxix] It has long been held that a “fundamental policy of our law, and one which dominates in the absence of a special policy arising in particular types of situations, is that the judicial system and rules of procedure should provide litigants with full access to all reasonable means of determining the truth."[xxx] Allowing a party to proceed anonymously obviously runs counter to this policy. In fact, it is arguable that a protective order under Wis. Stat. § 804.01(3),[xxxi] if good cause is shown, is the only mechanism recognized by the Wisconsin courts for limiting the broad right of discovery afforded to litigants in a civil action.[xxxii]

III. Prejudicial Captions

Concerns about anonymity can also arise in circumstances where a plaintiff, in the caption to his or her pleadings, expressly states that his or her address and identity are being withheld for personal privacy reasons as he or she is a victim of sexual assault perpetrated by the defendant, even though no sexual assault itself has been proven in a criminal case. When that situation arises, the defendant may be able to argue that this unproven information should be stricken.[xxxiii] The court, in its equitable authority, may grant a defendant’s motion to strike, because the defendant’s legally protected right of access to the courts for ascertainment of the truth is invaded by such a statement.[xxxiv] The defendant would also seem to have a compelling argument against such a caption as making unfairly prejudicial allegations absent proof. Equitable authority permits a court to grant equitable remedies to private litigants in response to the invasion of legally protected rights “where there is no explicit statutory authority or in which the available legal remedy is inadequate to do complete justice.”[xxxv]

IV. Final Considerations

Finally, “Rape Shield” laws or similar statutes supporting victim anonymity, such as Wisconsin's crime victim’s “Bill of Rights,”[xxxvi] provide some anonymity to encourage crime victims to testify to vindicate the public's interest in enforcement of criminal statutes.[xxxvii] These statutes apply only in criminal cases, however, where it is the state bringing the action and the victim is not a party. In contrast, in a civil suit for damages where plaintiff is bringing the action and is seeking to vindicate primarily his or her own interests, these statutes have no relevance and are not a basis for a party to proceed anonymously.

[i] Confidentiality as to identity applies to minors in certain actions brought under the Children’s Code, Ch. 48, Wis. Stats., and appeals under Wis. Stat. § 809.105(12), to parties in paternity proceedings under Wis. Stat. §§ 767.814 and 767.815, and to employees in employment discrimination proceedings under Wis. Stat. § 111.375.

[ii] John Roe v. City of Milwaukee, 37 F. Supp. 2d 1127, 1129 (E.D. Wis. 1999).

[iii] Doe v. Indiana Black Expo, Inc., 923 F. Supp. 137 (S.D. Ind. 1996); Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005).

[iv] Smith, 429 F.3d at 710.

[v] See Doe v. Shakur, 164 F.R.D. 359, 360-61 (S.D.N.Y. 1996).

[vi] Doe v. Town of Plainfield, 860 N.E.2d 1204, 1208 (Ind. Ct. App. 2007).

[vii] Wis. Stat. § 802.04(1).

[viii] See Fed. R. Civ. P. 10 (pleadings shall name and identify parties); Fed. R. Civ. P. 17 (action shall be prosecuted in name of real party in interest).

[ix] See, e.g., Luckett v. Bodner, 2009 WI 68, ¶ 29, 318 Wis. 2d 423, 769 N.W.2d 504.

[x] Doe v. Blue Cross & Blue Shield of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997) (plaintiff’s mental illness did not require anonymity); see also Smith, 429 F.3d at 710.

[xi] John Roe, 37 F. Supp. 2d at 1129.

[xii] Town of Plainfield, 860 N.E.2d at 1208; Indiana Black Expo, Inc., 923 F. Supp at 140.

[xiii] Town of Plainfield, 860 N.E.2d at 1209 (applying federal law).

[xiv] Wisconsin Stat. § 19.34(1) provides that “[e]ach authority shall adopt, prominently display and make available for inspection and copying at its offices, for the guidance of the public, a notice containing . . . the methods whereby, the public may obtain information and access to records in its custody, make requests for records or obtain copies of records.” See also Wis. Stat. § 19.35(1)(a) (noting that "any requester has a right to inspect any record"). Importantly, "authority," as it is used in § 19.34(1), is defined to include "any court of law." Wis. Stat. § 19.32.

[xv] See Town of Plainfield, 860 N.E.2d at 1209 (applying federal law).

[xvi] Indiana Black Expo, Inc., 923 F.Supp at 142 n.2 (citing Doe v. Blue Cross & Blue Shield of Rhode Island, 794 F. Supp. 72, 75 (D.R.I. 1992)) (emphasis added).

[xvii] Town of Plainfield, 860 N.E.2d at 1207 (applying federal law).

[xviii] City of Brookfield v. Milwaukee Metropolitan Sewerage District, 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992) (citing Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727 (1982)).

[xix] Town of Plainfield, 860 N.E.2d at 1208 (citing Indiana Black Expo, Inc., 923 F. Supp. at 140); see also Shakur, 164 F.R.D. at 361; Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981); James v. Jacobson, 6 F.3d 233, 241 (4th Cir. 1993); Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 467-468 (E.D. Pa. 1997).

[xx] Indiana Black Expo, Inc., 923 F. Supp. at 139.

[xxi] 164 F.R.D. 359 (S.D.N.Y. 1996).

[xxii] Id. at 361.

[xxiii] Id. at 361-62 (internal citations omitted).

[xxiv] See John Roe, 37 F. Supp. 2d 1127 (plaintiff alleged violation of civil rights including rights to privacy, liberty, due process, equal protection, and cruel and unusual punishment; anonymity permitted due to HIV-positive status); John Doe v. American Stores Company, 74 F. Supp. 2d 855, 860 (E.D. Wis. 1999) (plaintiff alleged negligent infliction of emotional distress, invasion of privacy contrary to statute, and improper disclosure of his medical condition by health care provider contrary to statute; anonymity permitted due to HIV-positive status).

[xxv] John Roe, 37 F. Supp. 2d 1127; see also American Stores Company, 74 F. Supp. 2d at 860.

[xxvi] The right to discovery is an essential element of our adversary system. In order for our adversary system to effectively ensure the ability of litigants to uncover the truth, and to seek and be accorded justice, it is our responsibility to render decisions that do no harm to the fundamental and important right of litigants to access our courts. In Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413, we elaborated upon these principles, explaining the fundamental importance of discovery rights:

In general, the public has a right to every person's evidence at trial. At its core, the adversary system is based upon the proposition that an examination of all of the persons possessing relevant information, which will lead to the discovery of all of the relevant facts, will produce a just result. Nevertheless, this fundamental legal principle is tempered by constitutional, common law, or statutory privileges. Because the adversary system places a premium on the discovery of relevant information, courts are cautious not to overly interfere with this goal.

Id., ¶ 20 (citations omitted).

The parameters of permissible discovery are broad by necessity. As we have explained, "[t]his breadth is essential because the purpose of discovery is identical to the purpose of our trial system—the ascertainment of truth." Crawford ex rel. Goodyear v. Care Concepts, Inc., 2001 WI 45, ¶ 13, 243 Wis. 2d 119, 625 N.W.2d 876. See also United States v. Nixon, 418 U.S. 683, 709-10 (1974); Shibilski, 83 Wis. 2d at 466; Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 199, 248 N.W.2d 433 (1977). We cannot render meaningful legal decisions without first determining the true facts of each case.

Sands v. Whitnall Sch. Dist., 2008 WI 89, ¶¶ 18-19, 312 Wis. 2d 1, 728 N.W.2d 15, 754 N.W.2d 439 (emphases added).

[xxvii] Glenn v. Plante, 2004 WI 24, ¶ 20, 269 Wis. 2d 575, 676 N.W.2d 413.

[xxviii] Wis. Stat. ch. 804 affords discovery of broad scope to all parties, even to the extent that the information sought may be objected to on the basis that it is inadmissible at trial. See Wis. Stat. § 804.01(2)(a) (allowing discovery “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence”).

[xxix] Sands, 312 Wis. 2d 1, ¶¶ 18-19.

[xxx] Jacobi v. Podevels, 23 Wis. 2d 152, 156-157, 127 N.W.2d 73 (1964) (emphasis added).

[xxxi] “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from . . . embarrassment, oppression, . . . including but not limited to one or more of the following: 1. That discovery not be had; . . . 5. That discovery be conducted with no one present except persons designated by the court; 6. That a deposition after being sealed be opened only by order of the court; . . . .” Wis. Stat. § 804.01(3).

[xxxii] Sands, 312 Wis. 2d 1, ¶ 75 (“[A] trial court may increase its supervision of the discovery process to ensure that sensitive or confidential information is protected through the creation of an appropriately tailored protective order.” (quoting State ex rel. Upper Republican Natural Resources District v. District Judges of the District Court for Chase County, 728 N.W.2d 275, 280 (Neb. 2007)).

[xxxiii] See id., ¶ 18.

[xxxiv] See In the Interest of E.C., 130 Wis. 2d 376, 388-89, 387 N.W.2d 72 (1986); Sands, 312 Wis. 2d 1, ¶¶ 18-19.

[xxxv] In the Interest of E.C., 130 Wis. 2d at 388-89.

[xxxvi] Wis. Stat. § 950.04.

[xxxvii] Shakur, 164 F.R.D. at 360-61.