Opinion
Case No. 8:01CV3304
June 5, 2002
ORDER
This matter is before the Court on the Statement of Appeal of Magistrate Judge's Order (Filing No. 25) filed by the Defendants, School District No. 2 of Madison County, Nebraska, and Randy Nelson. The Court has considered the briefs and the evidence filed previously with the Court.
FACTS
The Plaintiffs, John Doe, a minor, and his mother and next friend, Mary Doe, allege in their Complaint, brought pursuant to 42 U.S.C. § 1983, that their rights were violated by conduct relating to the recitation of a prayer at a high school graduation ceremony. (Filing No. 1.) The Plaintiffs filed a Motion to Allow Use of Pseudonyms and a Supplement to the Motion (Filing Nos. 2, 10). Together with the Supplement, the Plaintiffs filed ex parte affidavits with the Court.
Magistrate Judge David L. Piester, in a one-page Order, granted the Plaintiffs' Motion to proceed by pseudonym. (Filing No. 19.) Judge Piester ordered that Filing Nos. 7 and 10 remain sealed and not be disclosed to the Defendants or Defendants' counsel. Should the Plaintiffs testify, Judge Piester ordered that Plaintiffs' counsel take appropriate measures to conceal their physical appearance and identity. (Filing No. 19.)
The Defendants appealed from Judge Piester's Order. (Filing No. 25.)
ANALYSIS
In an appeal of a nondispositive order, this Court may modify, set aside, or remand the order or any portion thereof found to be clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a); NELR 72.3(d).
Timeliness of Appeal
The Plaintiffs argue that the Defendants' Appeal was untimely. The appeal was timely. NELR 72.3(b) and Federal Rule of Civil Procedure 72 require that a statement of appeal in a nondispositive matter be filed within ten days after the party is served with a copy of the Order. Judge Piester's Order was filed on February 28, 2002. Federal Rule of Civil Procedure 5 defines "service" as complete upon mailing. The docket sheet indicates that copies of the Order were mailed on February 28, 2002. The Federal Rules of Civil Procedure specify that because the time period in question is less than eleven days, weekends and holidays are not included in the calculation. Federal Rule of Civil Procedure 6(e) also provides three additional days mailing time. Therefore, the Defendants had until Monday, March 18, 2002, to file their Statement of Appeal. The Defendants did so on March 14, 2002, and therefore the Statement of Appeal was timely.
Merits of Appeal
The Defendants do "not necessarily object" to the use of pseudonyms in the pleadings. Defendants' Brief in Support of Statement of Appeal of Magistrate Judge's Order, at 3. The Defendants object, however, to their inability to read the affidavits filed in support of the Plaintiffs' Motion, stating that they were deprived of the opportunity to respond appropriately to the Plaintiffs' Motion. Defendants also argue that their ability to conduct discovery is seriously disadvantaged without knowledge of the Plaintiffs' true identities.
The Plaintiffs argue, however, that even if redacted affidavits were provided to counsel for the Defendants, the remaining information in the affidavits would reveal the Plaintiffs' true identities. The Plaintiffs argue that John Doe is a minor, a serious safety concern exists in a small community, the case is emotionally charged, and discovery by counsel for the Defendants of the Plaintiffs' identities would inevitably lead to general knowledge of that information within the community.
Federal Rule of Civil Procedure 10(a) sets out the general rule requiring that a complaint name all parties to an action. However, exceptions are made to the general rule in rare matters involving a "sensitive and highly personal nature." Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont. 1974).
While neither the Eighth Circuit Court of Appeals nor the Supreme Court has established a standard relating to the use of pseudonyms, guidance is available from other courts. For example, the Northern District of Iowa has summarized the test as one which considers: 1) whether the plaintiffs challenge governmental activity; 2) whether the plaintiffs must disclose highly intimate information; 3) whether plaintiffs are compelled to admit their intention to engage in illegal conduct; 4) whether the plaintiffs would risk injury if their identities were known; 5) any prejudice that would be suffered by the defendants through the plaintiffs' use of pseudonyms; 6) the extent to which the plaintiffs' identities have been kept confidential; and 7) whether there exists an "atypically weak interest" in knowing the plaintiffs' identities. Doe v. Hartz, 52 F. Supp.2d 1027, 1046-47 (N.D. Ia. 1999). The "ultimate test, however, remains 'whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Id. at 1047 (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)). The decision is within the Court's discretion. Id. at 1046.
In applying this test in this case, the Court finds that the following factors apply: 1) the Plaintiffs challenge governmental activity; 2) the Plaintiffs have demonstrated that they have reason to believe that they are in jeopardy of injury if their identities are revealed; 3) the public interest in knowing the Plaintiffs' identities is weak, although public interest in this emotionally-charged case is very high; and 4) the case involves a minor Plaintiff. There well may be prejudice to the Defendants in the discovery process when they do not know the Plaintiffs' identities. At this time, the prejudice is still speculative, as the Defendants have pending a Motion to Dismiss (Filing No. 10) and Defendants have not shown that discovery avenues available to them have proved inadequate in any specific, material way. Exercising its discretion, the Court finds that the risk of injury to the Plaintiffs, one of which is a minor, warrants the continued protection of the Plaintiffs' identities at this time. The Court agrees with the Plaintiffs that, even if their true names were redacted from the evidentiary materials filed under seal with the Court, the remaining information would disclose their identities. Balancing the interests at stake, the Court concludes that the affidavits should not be disclosed in any form to counsel for the Defendants at this time. The Defendants' appeal of the Magistrate Judge's Order is denied, without prejudice to the Defendants seeking reconsideration by the Magistrate Judge at a later date.
CONCLUSION
For the reasons discussed, the Statement of Appeal of Magistrate Judge's Order will be denied.
IT IS ORDERED that the Statement of Appeal of Magistrate Judge's Order (Filing No. 25) filed by the Defendants, School District No. 2 of Madison County, Nebraska, and Randy Nelson, is denied.