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Anonymity Case Analysis

By: dmc-admin//November 30, 2005//

Anonymity Case Analysis

By: dmc-admin//November 30, 2005//

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The decision, and the reaction to it, provide a warning to any attorney representing a client who wants to proceed anonymously.

Within a day of the decision being released, it was being criticized in the blawgosphere, not for the decision on the merits, but for the discussion of anonymity. How Appealing, Crescat, Concurring Opinions, and the Chicago Law Faculty Blog, all had posts discussing how the plaintiff’s anonymity has been compromised.

The problem is that, even though “Jane Doe” is listed as the plaintiff, the parties’ briefs are available on the Internet. Page 2 of the plaintiff’s brief contains the Rule 26.1 statement, which includes the plaintiff’s real name.

Thus, even if the plaintiff ultimately is allowed to proceed anonymously, anyone can determine her real identity with a couple clicks of a mouse while visiting the Seventh Circuit’s Web site. One of the blawgs makes it even easier, by including a direct link to the brief.

The effect was aptly stated by Professor Lior Strahilevitz at the Chicago Law Faculty Blog: “By publishing the brief, the Seventh Circuit itself has permanently introduced the plaintiff’s name onto the Internet, where it will be archived and Google-accessible for the rest of her life. The option that the court seemed to offer the plaintiff — drop the suit and fade into relative obscurity — turns out to be completely illusory thanks to a clerical failure to redact Doe’s real name.”

Clearly, to prevent this from happening in future cases, attorneys representing anonymous parties must take action to protect that anonymity.

Howard Bashman, writing at How Appealing, suggested as follows: “What should have happened here was that plaintiff’s counsel should have moved to file the Circuit Rule 26.1 disclosure statement under seal and should not have included that statement, in unredacted form, in the electronic copy of plaintiff’s Brief for Appellant filed with the court and thereafter posted online. There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.”

Related Links

7th Circuit Court of Appeals

Related Article

Jane Doe case ignites confidentiality debate

Bashman’s suggestion is a good one; there is U.S. Supreme Court precedent that allows disclosure statements to be filed under seal in sensitive cases. Gadson v. Walker, 532 U.S. 1003 (2001); Mull & Mull, PLC, v. Rhone-Poulenc Rorer, Inc., 526 U.S. 1081 (1999).

In addition, Seventh Circuit precedent allows parties to file public briefs without a disclosure statement. In the case of In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), Judge Easterbrook wrote that parties must file public briefs, but may add sealed supplements if necessary to discuss in detail materials that they are legally required to keep confidential.

Where the case was conducted anonymously at the district court level, and a sealed disclosure statement is necessary to maintain confidentiality, a motion to file a disclosure statement under seal should be granted, as a matter of course.

– David Ziemer

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David Ziemer can be reached by email.

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