Summary
In Doe v. McFarland, Justice Marx engaged in a comprehensive review of the ARK55 Doe v. Archdiocese of New York (Sup Ct. New York County, November 4, 2019, Index No.950049/2019) and Doe v. Kara (Sup Ct. Queens County, September 22, 2019, Index #714910/2019) decisions.
Summary of this case from Hcvawcr-Doe v. Roman Catholic Archdiocese N.Y.Opinion
34675/2019
12-10-2019
Jane DOE, Plaintiff, v. Ronald MACFARLAND, Clarkstown Central School District, and Various Employees of Clarkstown Central School District Whose Names are Currently Unknown and Thus Designated as Donald Doe I-XXX, Defendants.
Kevin Mulhearn, Esq., Attorney for Plaintiff, 60 Dutch Hill Rd, Suite 6B, Orangeburg, NY 10962, Law Offices of Daniel E. Bertolino Laurie A Dorsainvil, Esq., Attorneys for Defendant MacFarland, 407 North Highland Avenue, Upper Nyack, NY 10960
Kevin Mulhearn, Esq., Attorney for Plaintiff, 60 Dutch Hill Rd, Suite 6B, Orangeburg, NY 10962, Law Offices of Daniel E. Bertolino
Laurie A Dorsainvil, Esq., Attorneys for Defendant MacFarland, 407 North Highland Avenue, Upper Nyack, NY 10960
Paul I. Marx, J.
Plaintiff's renewed motion, brought by Order to Show Cause, seeks an order (1) permitting "Plaintiff to file and prosecute her claims using a ‘Jane Doe’ designation on the grounds that Plaintiff brings this action pursuant to the New York Child Victims Act, CPLR § 214-g, alleging child sexual abuse, and is afforded privacy protections pursuant to New York Civil Rights Law § 50-b"; (2) allowing "this action to be commenced, and the file maintained in this action, under a caption containing a ‘Jane Doe’ designation"; (3) directing "that only the Jane Doe designation for the Plaintiff [shall] appear within the body of any documents filed with the Court"; and (4) requiring that "all documents that bear the true name of the Jane Doe Plaintiff, or any document that tends to identify the Plaintiff shall be redacted by the party filing such document and the original un-redacted document shall be retained by the party who has filed the redacted document for an in camera inspection by the Court."
The numeration of the forms of relief do not track with those identified in the Order To Show Cause. The Court has eliminated the second form of relief sought by plaintiff in the Order to Show Cause: "Plaintiff may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm should Plaintiff's identity be revealed" because it is not a form of relief. It is descriptive of the harm plaintiff claims will befall her if the Court denies her application.
Order to Show Cause/Affirmation of Kevin T. Mulhearn, Esq./Affidavit of Plaintiff 1-3
Plaintiff provided a redacted affidavit (and reply affidavit) to all parties as well as un-redacted affidavits to the Court for in camera review.
Affirmation in Opposition of Laurie A. Dorsainvil, Esq/Exhibit A 4-5
Reply Affidavit of Plaintiff 6
Plaintiff's Memorandum of Law in Further Support/ Exhibits A-C 7-8 Introduction/Background
With the enactment of New York's Child Victims Act, CPLR § 214-g, which permits claims arising from alleged sexual abuse of children to be brought decades after the events complained of, came the almost inevitable onslaught of lawyers advertising for clients to prosecute such claims. Many of those advertisements suggest, if not overtly state, that victims of child sex abuse can proceed anonymously. So ubiquitous have these advertisements become that it is likely that the public perception is that plaintiffs have a nearly absolute right to proceed in these cases without revealing their identity. Indeed, counsel bringing these actions and applications to proceed anonymously often fail to submit an affidavit or other showing of the necessity for anonymity. This case was no exception.
The Child Victims Act does not create a new cause of action for claims which arise from alleged child sex abuse, as some have suggested. Rather, the principal effects of the statute as to civil claims are to (1) revive some claims which were thought to be time barred (but only if brought within the one year revival period which ends August 14, 2020), (2) negate certain conditions precedent such as the filing of notices of claim/intention against municipal defendants and (3) extend the statute of limitations for claims which were not yet barred to the alleged victim attaining age 55. The effects as to criminal actions are not relevant to this Decision and Order.
In fact, plaintiff's counsel in this action previously filed an Order To Show Cause seeking an order permitting plaintiff to proceed as "Jane Doe", without any supporting documents. In addition to being unsupported by an affidavit of a person with knowledge, the application made no provision for the defendants to know the identity of the plaintiff. This omission was sufficient in and of itself to warrant denial of the motion. Thus, by Decision and Order dated August 30, 2019, the Court denied the prior motion on that ground. NYSCEF Document #6.
This was consistent with the then most recent case law addressing the issue, Doe v. The Roman Catholic Archdiocese of New York ("Roman Catholic Archdiocese") , 64 Misc 3d 1220(A), 2019 WL 3484392 (N.Y. Sup. Ct. Westchester County, July 31, 2019, Ruderman, J.).
Applications by plaintiffs in Child Victims Act cases for leave to proceed anonymously have met with differing results. Some courts have granted the application where it was unopposed and plaintiff submitted an affidavit claiming that the "case is likely to draw attention from the media, and if plaintiff is not allowed to proceed under a pseudonym, increased media attention may lead to a chilling effect that may inhibit plaintiff and other alleged victims of abuse from coming forward." See e.g. Doe v. Kara , ("Kara ") (Sup Ct Queens County, September 22, 2019, Silver, J. Index #714910/2019). Some courts have granted the application based solely on an affirmation of counsel where the application was not opposed. Doe v. Roman Catholic Diocese of Albany , (Sup Ct Orange County September 5, 2019, Sciortino, J., Index # 006469/2019). As indicated above, some courts, this one included, have denied the application with leave to renew where the application was made without an affidavit of the plaintiff. See also, Doe v. Good Samaritan Hospital , ("Good Samaritan Hospital") 2019 N.Y. Slip Op. 29313, 110 N.Y.S.3d 830 (Sup. Ct. Nassau County, October 3, 2019, Jaeger, J.).
Since the named plaintiff in several of the cases referred to herein are "Jane Doe", the Court will refer to cases by the defendant's name.
Just weeks ago, a court granted an opposed application for leave to proceed anonymously in an action which was revived by the Child Victims Act. ARK 55 Doe v. Archdiocese of New York , ("Ark 55" ) (Sup. Ct. New York County, November 4, 2019, Silver, J. Index #950049/2019). The decisions in Ark 55 and Kara, supra , merit additional consideration, as discussed below.
After the instant motion had been marked fully submitted, plaintiff's counsel wrote to the Court on November 12, 2019 to forward a copy of the Decision and Order in Ark 55 for consideration. While the Court has considered the opinion of the collateral court, counsel's letter has not been considered. Defendant's objection to plaintiff submitting additional papers after the motion was subjudice is noted.
The Instant Application
Plaintiff moves by Order to Show Cause for leave to file and prosecute her complaint using a "Jane Doe" designation "on the grounds that Plaintiff brings this action pursuant to the New York Child Victims Act, CPLR § 214-g, alleging child sexual abuse, and is afforded privacy protections pursuant to New York Civil Rights Law § 50-b", and for related relief which will allow her identity to be concealed. In support thereof, plaintiff submits the affirmation of her attorney and her own affidavit. Plaintiff does not submit a copy of the underlying complaint. Rather, in her affidavit, plaintiff alleges solely that "as a minor child I was forced to submit to sexual relations with Defendant, Ronald MacFarland, for a prolonged period of time. The sexual abuse has had an extraordinarily negative and profound impact on all aspects of my life." (Affidavit ¶5). She continues, "I may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm should my identity be revealed". (Id. ¶7).
On the initial return date of the Order to Show Cause, the Court inquired of plaintiff's counsel whether he intended to secret plaintiff's identity from defendant. The response was in the negative. Counsel agreed to provide the plaintiff's name and significant identifying information to defense counsel when the hearing concluded. Thus, plaintiff's application was clarified as seeking leave to proceed under a pseudonym and to conceal her identity from the public, not defendants. A briefing schedule was then set by the Court.
Defendant Clarkstown Central School District ("the School District") has not submitted any papers in connection with the motion.
Defendant Ronald MacFarland ("MacFarland") opposes the application, supported by an affirmation of his counsel, a copy of plaintiff's complaint and his verified answer, which includes a counterclaim.
Plaintiff's complaint alleges that beginning in or about May 1984, and continuing for a period of over five years thereafter, MacFarland, then a guidance counselor at Clarkstown North High School, engaged in sexual activity with plaintiff while she was a minor. She alleges that the "relationship" was well known to officials at the school, who failed to intercede and end it, despite the fact that MacFarland "flaunted [the] relationship" by, amongst other things, prominently displaying plaintiff's photo on his desk "for all to see". She alleges that MacFarland compelled her to engage in sexual activity on a nearly daily basis and that the forced relationship continued beyond her graduation from high school, through her college years and into her employment as a school teacher. She contends that she has "experienced lifelong problems with intimacy and confusion as to her views on sex". She asserts several causes of action against the School District and its employees, designated as: (1) "negligent security and supervision", (2) "breach of duty of care", and (3) "negligent supervision". She asserts a cause of action against MacFarland for assault and battery, for which she seeks compensatory and punitive damages.
The record does not provide any information as to whether MacFarland remains employed by the School District.
In his answer, MacFarland denies that he engaged in a sexual relationship with plaintiff while she was a minor. Rather, he asserts that "Plaintiff and Defendant were engaged in a consensual sexual relationship for a number of years that began after Plaintiff reached the age of consent." Answer ¶92. He asserts fifteen affirmative defenses, contending that: (1) the parties "were engaged in a consensual relationship that began after plaintiff reached the age of consent", (2) there is no proximate cause of any damages, (3) the action is barred by laches, (4) the action is barred by waiver and estoppel, (5) the action should be dismissed as frivolous under 22 NYCRR § 130-1.1, (6) any claimed economic damages should be offset by collateral sources as provided for in CPLR § 4545, (7) the complaint fails to state a cause of action, (8) the action is barred by the statute of limitations, (9) the complaint lacks specificity as required by CPLR §§ 3014 and 3016, (10) any claim based on the Child Victims Act is barred to the extent that the Child Victims Act is found to violate the constitutions of the United States and/or State of New York, (11) the action is barred based on "spoliation of evidence", (12) plaintiff failed to mitigate her damages, (13) "the imposition of punitive damages would violate ... the Fifth and Fourteenth Amendments of the United States Constitution and relevant New York State constitutional law", (14) "any claim for punitive damages is barred, reduced, or in the alternative, is unconstitutional insofar as it constitutes an excessive fine as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 5 of the Constitution of the State of New York", and (15) "the complaint is barred by Plaintiff's unclean hands". In addition, defendant asserts a counterclaim in which he alleges that "Plaintiff has knowingly alleged material factual statements that are false ... including ... allegations that Defendant had sexual relations with her when she was a child and that they had sex on a daily basis in his office ..." Id. ¶109. He alleges that plaintiff has commenced this action to "harass and/or maliciously injure Defendant and his good reputation." Id. ¶110.
Defendant asserts that Civil Rights Law ¶ 50-b is limited to the victims of a "sex offense, as defined in article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law" and is inapplicable to this matter since there was no criminal prosecution ever commenced in connection with the parties' sexual relationship. Defendant contends, further, that plaintiff's assertion that she "may" experience further mental anguish does not provide an adequate legal basis for her to be accorded the right to proceed anonymously. Defendant cites to Doe v. Shakur , 164 F.R.D. 359, 362 [S.D.N.Y. 1996] for the proposition that a bald claim of public humiliation and embarrassment is insufficient to warrant the grant of anonymity. He submits that courts must use discretion to weigh a "plaintiff's privacy interest against the presumption in favor of open trials and against prejudice to defendant." Dorsainvil Affirmation at ¶8, citing Anonymous v. Lerner , 124 A.D.3d 487, 998 N.Y.S.2d 619 [1st Dept. 2015].
Defendant submits that plaintiff is now 51 years old and that the alleged abuse occurred 35 years ago. He submits that allowing plaintiff to proceed anonymously is prejudicial to him since plaintiff has made allegations "that are damaging to his private life and reputation." He states that the action places plaintiff's credibility into issue. He argues that allowing plaintiff to remain anonymous would negatively impact his ability to defend the action and adversely affect his state and federal due process rights.
Defendant has not moved for leave to be sued under a pseudonym.
In reply, plaintiff submits a much more complete and detailed affidavit. She now states that "as a member of the community in which Defendant MacFarland lives and [in which the school district is located], I may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm should my identity be revealed." Reply Affidavit ¶13. She continues, "I am also concerned that I may suffer severe stigmatization, ostracization, and social repercussions, particularly since Defendant MacFarland — a long-time member of the Clarkstown community — is now attempting to paint me as a willing and ‘consensual’ participant in his alleged long-term extra-marital affair, rather than an under-age girl whose innocence was destroyed by an authority figure more than twenty years older than I." Id. ¶14. Plaintiff states that she has not sought any media attention and in fact has rebuffed attempts by the media to contact her through her counsel. Id. ¶16.
Plaintiff's claim that she might suffer additional harm if her identity is revealed must, in light of the disclosure of her name on the initial return date, be construed as referencing her identity being revealed to the public.
Plaintiff informs the Court for the first time in her reply affidavit that she also has concerns about the possible effect public disclosure of her identity may have on her two children. She states: "my two children are both under the age of twelve-years-old and both are enrolled as students at schools within and controlled by Defendant, Clarkstown Central School District." Id. ¶17. She asserts that she is "extremely concerned that my children will be teased, tormented, or harassed, by their peers, or others, and/or otherwise suffer severe emotional distress, in the event that it becomes known that their mother is suing the school district in which they attend school for sexual abuse." Id. ¶18. Plaintiff asserts that her concern "is heightened by the fact that Defendant MacFarland has chosen to defend this action by falsely claiming that [she] was beyond the age of consent when [their] multi-year ‘relationship’ began." Id. ¶19. She concludes, "[a]s a single mother, my children do not have an involved father to set the record straight with them regarding me and my past. It is thus vital to me that my children not suffer any emotional harm or distress as a result of my involvement in this lawsuit and/or the underlying facts. Forced public disclosure of my true name would create an unacceptable risk that this might occur. In the event the Court compels me to proceed with my real name, therefore, I would then face a difficult decision as to whether to proceed with the prosecution of this case." Id. ¶20.
The Standard for Granting Leave to Proceed Anonymously
An application by a party to proceed in litigation anonymously presents two important questions to a court. First, should the party be permitted to conceal his/her identity from everyone, including the named defendant(s), i.e. , true anonymity? Second, should the party be permitted to conceal his/her identity from the public by proceeding under a pseudonym with a file sealed from public view? As has occurred in this case, the motion papers seeking anonymity often conflate the two questions as if they are one. They are not. The first question is whether a plaintiff should be permitted to shield his/her identity from defendant(s), which may inhibit their ability to defend the action. The second question is whether the public should be permitted access to the case and court's files, which impinges on the public interest in open trials. These two questions should not be treated as if they are one and the same.
The Application to Conceal Plaintiff's Identity from All, Including the Defendant
CPLR § 2101(c) requires that the caption of all actions commenced include the names of all parties. The section provides:
(c) Caption. Each paper served or filed shall begin with a caption setting forth the name of the court, the venue, the title of the action, the nature of the paper and the index number of the action if one has been assigned. In a summons, a complaint or a judgment the title shall include the names of all parties , but in all other papers it shall be sufficient to state the name of the first named party on each side with an appropriate indication of any omissions. (Emphasis added).
Court Rule 22 NYCRR § 202.5 [d][1][ii] directs the clerk of the court to reject any initial paper that fails to include the names of all parties if offered for filing. As relevant here, the Court Rule specifies:
(d)(1) ... a County Clerk and a chief clerk of the Supreme Court or County Court, as appropriate, shall refuse to accept for filing papers filed in actions and proceedings only under the following circumstances or as otherwise provided by statute, Chief Administrator's rule or order of the court:
(ii) The summons, complaint, petition, or judgment sought to be filed with the County Clerk contains an "et al" or otherwise does not contain a full caption.
In addition to the statutory and Court Rule prohibitions against omitting a party's name from a caption, there are due process considerations. New York's highest court has held that due process requires that a party know the identity of his/her accuser so that the defendant can properly prepare a defense to the action. "It is elementary that the primary function of a pleading is to apprise an adverse party of the pleader's claim ... Absent such notice, a defendant is prejudiced by its inability to prepare a defense to the plaintiff's allegations." Cole v. Mandell , 93 N.Y.2d 34, 40, 687 N.Y.S.2d 598, 710 N.E.2d 244 [1999], citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3013:1.
The Court notes that in Kara, supra , Justice Silver appears to disagree with this interpretation of Cole, supra . In Kara , Justice Silver wrote that "while ‘it is elementary that the primary function of a pleading is to apprise an adverse party of the pleader's claim ’ the same does not necessarily apply to a pleader's name". Kara, supra , citing Cole, supra , (emphasis in original). It is, however, the very rare case in which a plaintiff is permitted to proceed anonymously.
As noted by Justice Ruderman in Roman Catholic Archdiocese of New York , supra ,
The rationale for the disclosure of a plaintiff's name in a complaint or petition is grounded in the basic due process rights of notice and an opportunity to be heard. 64 Misc. 3d 1220(A), 2019 WL 3484392, *4 (internal citation omitted).
In addition, CPLR § 3013 requires that
Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences,
intended to be proved and the material elements of each cause of action or defense. NY CPLR § 3013 (McKinney).
To be sure, to allow a plaintiff to proceed completely anonymously (concealing his/her identity from even the defendant) might so prejudice a defendant's ability to defend an action as to render any defense nearly meaningless and his/her right to defend a nullity. In cases involving alleged child sex abuse, a party's defense may be predicated on a denial of any interaction with the plaintiff on the date(s) or time(s) alleged or at the place where plaintiff asserts the conduct occurred. Unless the defendant knows the identity of his/her accuser, the defendant could not possibly prepare to refute an allegation that he/she had the opportunity to interact with that specific individual. For example, in this case, plaintiff alleges that defendant abused her while he was a high school guidance counselor who was employed in the school she attended. By virtue of being a guidance counselor, defendant interacted with numerous students on a daily basis. To conceal plaintiff's identity from defendant would, effectively, deprive him of the opportunity to present a defense. Is defendant to guess who his accuser is and plan a defense based on guesswork? Clearly, that cannot be the case.
Indeed, in Roman Catholic Archdiocese, supra , one of the earliest cases filed under the Child Victims Act, Justice Ruderman rejected an effort by plaintiff to secret his identity from defendants where plaintiff took the position that defendants ought to be able to conclude plaintiff's identity from the allegations made in the complaint. As stated above, on the initial return date of this application, because the moving papers were unclear as to the relief sought, the Court inquired of plaintiff's counsel whether plaintiff sought to conceal her identity from defendant. Counsel responded that she did not and disclosed her name and address to defense counsel at that time.
Notwithstanding this disclosure, plaintiff's reply affidavit refers to her application broadly as one in which she seeks to keep her identity "secret".
This Court believes that only in the most compelling of cases in which a court can conclude that disclosure of a party's identity presents the potential of immediate harm to the well being of that party or other innocent parties should a court consider concealing the identity of a party from all other parties. To do otherwise jeopardizes the opposing party's right to due process. As Justice Ruderman noted in Roman Catholic Archdiocese , "a trial court should not pro forma approve an anonymous caption, but should exercise its discretion sparingly and then, only when unusual circumstances necessitate it." 64 Misc. 3d at 1220 citing Applehead Pictures LLC v. Perelman , 80 A.D.3d 181, 192, 913 N.Y.S.2d 165 [1st Dept. 2010], and Anonymous v. Anonymous , 27 A.D.3d 356, 814 N.Y.S.2d 21 [1st Dept. 2006].
Proceeding Under a Pseudonym
The Court notes that the legislature did not provide for parties who file cases seeking redress for child sexual abuse under the Child Victims Act (or otherwise) to presumptively proceed anonymously or pseudonymously. If the legislature, which evaluated the circumstances surrounding these claims and enacted legislation which revived many of them years after the statute of limitations had long since expired, expected parties to be permitted to conceal their identities from the public, it could have done so. In lieu of a blanket designation of anonymity, the legislature left it up to each alleged victim to determine whether to seek anonymity. The legislature also necessarily left it to the courts to assess each individual case. Litigants seeking to proceed under a pseudonym are not new to the courts. The case law that has developed in non Child Victims Act cases applies equally to Child Victims Act cases.
This Court's opinion is informed by the analysis employed by other courts which have been confronted by the question of whether a plaintiff should be permitted to proceed either anonymously or under a pseudonym. These courts, Federal and state, have created an amalgamation of the factors employed to decide this vexing question. These factors provide a useful guide to courts in evaluating anonymity applications in Child Victims Act cases, such as this one.
Factors Employed in Federal Cases
"When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." Sealed Plaintiff v. Sealed Defendant #1 , 537 F.3d 185, 189 [2nd Cir. 2008].
In Sealed Plaintiff , supra , a case in which plaintiff sought damages for alleged physical and sexual abuse in violation of her civil and constitutional rights, the Second Circuit held:
This balancing of interests entails the consideration of several factors that have been identified by our sister Circuits and the district courts in this Circuit. We note with approval the following factors, with the caution that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration: (1) whether the litigation involves matters that are "highly sensitive and [of a] personal nature," (citations omitted) (2) "whether identification poses a risk of retaliatory physical or mental harm to the ... party [seeking to proceed anonymously] or even more critically, to innocent non-parties," (citations omitted); (3) whether identification presents other harms and the likely severity of those harms, (citation omitted), including whether "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity," (citation omitted); (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, (citation omitted) particularly in light of his age, (citations omitted) (5) whether the suit is challenging the actions of the government or that of private parties, (citations omitted); (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court, (citation omitted); (7) whether the plaintiff's identity has thus far been kept confidential, (citation omitted); (8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity, (citations omitted); (9) "whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities," (citation omitted); and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff, (citation omitted). Sealed Plaintiff v. Sealed Defendant 1 , 537 F3d 185, 189—90 [2nd Cir. 2008].
In Doe v. FedCap Rehabilitation Services, Inc. , ("FedCap ") 2018 WL 2021588, [U.S.D.C. S.D.N.Y., Oetken, J. April 27, 2018, Docket # 17-CV-8220 (JPO) ], an individual who identified as "genderqueer" and trans-masculine, brought suit against their former employer claiming discrimination in the workplace, based on alleged disabilities, as well as retaliation against plaintiff for exercising their rights under the Family Medical Leave Act. An ex parte motion to proceed under a pseudonym was granted. Defendants moved to vacate the order, arguing that they would be prejudiced if plaintiff was permitted to proceed under a pseudonym. First, they argued that the cost of redacting plaintiff's name from court filings was "not trivial". Second, they argued that anonymity might allow plaintiff to make claims that might not otherwise be made if their identity was known. Finally, defendants contended that anonymity would create an imbalance in settlement negotiations. Allowing plaintiff to proceed under a pseudonym, they contended, might create a situation where plaintiff, able to conceal their identity, might hold out for a larger settlement while defendants, whose identities were public, might be compelled to settle for a larger amount to protect their reputations.
In FedCap , the Court granted the motion to vacate the order allowing a pseudonym, noting that plaintiff's identity was already known to the public based on plaintiff's voluntary participation in a news story for "a major news outlet." In the story, plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity. In addition, the article featured a photograph of plaintiff and the "picture specifically illustrated plaintiff's non-conformance with gender norms."
Well before FedCap , the Court in Shakur , 164 F.R.D. at 359, relied on by MacFarland, was presented with the question of whether plaintiff who had filed a civil suit for damages arising from the sexual assault by rapper, Tupac Shakur, should be permitted to conceal her identity. Shortly after Shakur and a co-defendant had been found guilty of sexual abuse in a criminal trial, plaintiff filed a civil suit using an anonymous caption as permitted by a Judge John E. Sprizzo. After defendants defaulted, the clerk entered judgment. When Shakur moved to vacate the default judgment, he identified plaintiff by her real name. Plaintiff objected to being identified in the papers. Judge Denny Chin overruled plaintiff's objections and permitted defendants to file papers which identified plaintiff by name. In an obvious effort to allow plaintiff to consider if she wanted to proceed as a named party, Judge Chin adjourned the motion "so that plaintiff may have an opportunity to review her options". Shakur , supra at 362.
Judge Sprizzo permitted plaintiff to file the action under a pseudonym. Judge Chin determined that Judge Sprizzo's order was limited to allowing the action to be commenced under the psuedonym. Judge Chin determined that Judge Sprizzo "did not order that all documents filed in [this] case be sealed." Shakur, supra at 359.
In Shakur , Judge Chin noted that federal case law provided that the determination of whether to allow a plaintiff to proceed anonymously was within the court's discretion. He identified relevant factors as including
(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 prosecution; (4) whether the plaintiff would risk suffering injury if identified, and (5) whether the party defending against a suit brought under a pseudonym would be prejudiced. citing James v. Jacobson , 6 F.3d 233, 238 [4th Cir. 1993] ;
Doe v. Frank , 951 F.2d 320, 323 [11th Cir. 1992] ; Doe v. Bell Atlantic Business Systems Services Inc. , 162 F.R.D. 418 [D. Mass 1995] ; (additional citations omitted).
He continued,
In considering these and other factors, a court must engage in a balancing process. As the Eleventh Circuit has held,
The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional case in which a plaintiff may proceed under a fictitious name. Shakur , at 361, citing Frank , 951 F2d at 323 (citing Doe v. Stegall , 653 F2d 180, 186 (5th Cir. 1981).
In Shakur , Judge Chin identified plaintiff's legitimate desires to keep the details of an allegedly brutal sexual attack out of the public's view and weighed that consideration against the fact that she had chosen to bring the action and thereby had placed her credibility into issue. "Fairness", he wrote, "requires that she be prepared to stand behind her charges publicly." Id. at 361, citing Bell Atlantic, supra . Next, Judge Chin considered that the claims were civil in nature and that rape shield laws were not available to her because there was no public interest in the private prosecution of the suit. Third, Judge Chin considered whether defendants would be at a disadvantage in defending the action in light of the fact that they would have to defend themselves publicly against an individual whose identity was secret. Finally, Judge Chin weighed the public right of access to courts, noting that "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." Shakur , at 361. Judge Chin noted that "other courts faced with a request by a victim of sexual assault seeking to prosecute a civil case under a pseudonym have also concluded that the plaintiff was not entitled to do so." Id. at p. 362.
Ultimately, after considering all of the factors, Judge Chin held that "claims of public humiliation and embarrassment, [however], are not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously". Id. Thus, the Court overruled plaintiff's objection to the inclusion of her name in the filed papers.
It should not go unsaid that courts in New York which have addressed claims for anonymity or pseudonymity have relied on Federal precedent. In Good Samaritan Hospital, supra , Justice Jaeger quoted the Fourth Circuit opinion in James v. Jacobson , 6 F.3d 233, [U.S.C.A. 4th Cir. 1993] for the proposition that
The Court notes that James , supra , is incompletely cited in Good Samaritan Hospital, supra , and Ark 55, supra , featuring only the page but without reference to the volume or reporter. The complete citation is supplied herein.
Among the factors to be considered in permitting the use of a pseudonym are ‘whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature’. Good Samaritan Hospital, supra , 2019 N.Y. Slip Op. 29313 at *1, 110 N.Y.S.3d 830
In James, supra , plaintiffs brought a medical malpractice action against their fertility specialist after it was determined that the physician artificially inseminated Ms. James, not with Mr. James' semen, but with his own, fathering their two children. Plaintiffs, who testified under pseudonyms at Jacobson's criminal trial sought to proceed similarly in the civil trial to protect their two pre-adolescent children from learning that defendant was their biological father. District Court denied plaintiffs' application even though it was supported by affidavits of two medical experts who opined that the children were at specific risk of harm if they learned the true identity of their biological father at their then current ages. The Fourth Circuit vacated the order denying the application to proceed to trial under a pseudonym, finding it to be an abuse of discretion. In doing so, the Circuit Court emphasized that courts reviewing an application for anonymity or pseudonymity should consider "whether identification [of the party] poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties" as well as the ages of the persons whose privacy interests are sought to be protected.
State Law Cases
Decisional case law in New York recognizes the need for courts to consider many of the same factors as the Federal courts. In Applehead, supra , 80 A.D.3d 181, 913 N.Y.S.2d 165, a case in which defendant sought to seal the record of various motions, the Appellate Division reminded us that
Uniform Rules for Trial Courts ( 22 NYCRR) § 216.1(a) ) provides that "a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof," and requires the court to "consider the interests of the public as well as of the parties." The presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access, e.g., in the case of trade secrets (see Danco Labs. v. Chemical Works of Gedeon Richter , 274 A.D.2d 1, 6-7 [2000] ). Thus, the court is required to make its own inquiry to determine whether sealing is warranted (see Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., B.V. , 28 A.D.3d 322, 324 [2006], lv denied 10 N.Y.3d 705 [857 N.Y.S.2d 38, 886 N.E.2d 803] [2008] ), and the court will not approve wholesale sealing of motion papers, even when both sides to the litigation request sealing (see Matter of Hofmann , 284 A.D.2d 92, 727 N.Y.S.2d 84 [2001] ). Since there is no absolute definition, a finding of good cause, in essence, "boils down to ... the prudent exercise of the court's discretion" ( Mancheski v. Gabelli Group Capital Partners , 39 A.D.3d 499, 502, 835 N.Y.S.2d 595 [2007] [internal quotation marks and citation omitted] ). Applehead Pictures, supra . at 191–92, 913 N.Y.S.2d 165.
Clearly then, state law is consistent with Federal law in holding that the determination of whether to allow a plaintiff to proceed anonymously requires the reviewing court to exercise its discretion in balancing the plaintiff's privacy (and other) concerns against the presumption in favor of open trials and against any prejudice to defendant. Anonymous v. Lerner, supra , 124 A.D.3d 487, 998 N.Y.S.2d 619. Notably, in Anonymous v. Lerner , a case in which a plaintiff who claimed to have contracted genital herpes from defendant sought to conceal her identity, the Appellate Division stated that "claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously." Id. at 487, 998 N.Y.S.2d 619. As such, the Appellate Division found that the trial court abused its discretion in permitting plaintiff to proceed under a pseudonym solely on that basis.
The New York cases which have granted plaintiffs leave to proceed under pseudonyms over a defendant's objection have generally relied on the fact that the allegations raised are of a "personal and sensitive nature" and the legislative intent behind the Child Victims Act of "helping the public identify hidden child predators through civil litigation discovery, and shift[ing] the significant and lasting costs of child sexual abuse to the responsible parties." Ark 55, supra , quoting, without attribution, the New York Committee Report, 2019 NY S.B. 2440 (NS), January 26, 2019. See also, Kara, supra.
In Ark 55 , a case that features several defendants, the Archdiocese of New York and the plaintiff entered into a stipulation whereby it waived any objection to the plaintiff proceeding anonymously, subject to certain terms and conditions. Another defendant, Fordham Preparatory School, did not submit any opposition to the application. However, USA Northeast Province of Society of Jesus, also a defendant, opposed the application predicated on Roman Catholic Archdiocese of New York, supra .
After discussing the procedural effects of the Child Victims Act, the court in Ark 55 , reviewed the law applicable to applications for leave to proceed anonymously, the countervailing interests and factors to be analyzed, and the intent of the Child Victims Act, remarking that
... it is axiomatic that plaintiff should be afforded the protection of anonymity . To be sure, the instant case involves alleged acts that will no doubt center on information about plaintiff of a sensitive and highly personal nature. The court recognizes that plaintiff, as the alleged victim of sexual abuse, has undoubtedly suffered great emotional distress. (Emphasis added).
The same court made the same comment in Kara, supra , stating that
The Court recognizes that plaintiff, as the alleged victim of sexual abuse, has undoubtedly suffered great emotional distress . Kara at *2.
Unfortunately, by stating that "it is axiomatic that plaintiff should be afforded the protection of anonymity" and "plaintiff as the alleged victim of sexual abuse, has ‘undoubtedly’ suffered great emotional distress", the court in Ark 55 and Kara applied presumptions that are nowhere to be found in the Child Victims Act. The first presumption is that a plaintiff who seeks to proceed anonymously should be granted that status, presumably without any real showing that such treatment is warranted in a particular case. To be sure, Child Victims Act cases, by their nature, require sensitivity, but they are not completely unlike other cases concerning equally sensitive subjects where anonymity is not presumed. In many revived actions which are brought decades after alleged abuse, the severity of the emotional distress may have been dulled by the passage of time and the efforts of the plaintiff over time to come to terms with the abuse. While the Court is certainly sensitive to the impacts of sexual abuse perpetrated against a child, a plaintiff who seeks anonymity in a Child Victims Act case must demonstrate that anonymity is warranted by the particular circumstances of the case.
As succinctly stated by the court in Doe v. Kidd , 19 Misc. 3d 782, 860 N.Y.S.2d 866 [Sup. Ct. N.Y. County 2008], a case in which plaintiff brought a claim sounding in assault and battery against the former National Basketball Association player, Jason Kidd, "anonymity should be limited to ‘compelling situations’ involving ‘highly sensitive matter’ including ‘social stigmatization,’ ‘real danger of physical harm’, or ‘where the injury litigated against would occur as a result of the disclosure of plaintiff's identity’. Id. (citation omitted). For example, a claim of "embarrassment is plainly insufficient" to warrant a grant of anonymity. Kidd, supra , at 788, 860 N.Y.S.2d 866.
The second presumption espoused by the court in Ark 55 , that a "plaintiff as the alleged victim of sexual abuse, has ‘undoubtedly’ suffered great emotional distress", sounds perilously close to being an evaluation of the merits of the plaintiff's claim in that case and indeed, of all claims filed by plaintiffs seeking damages for alleged child sexual abuse, even before any proof has been tendered. Such statements, it is submitted, cannot stand unchallenged or un-rebutted. Otherwise, quite apart from the issue of whether the particular defendant was the perpetrator, all other individuals who have filed claims for alleged sexual abuse could rely on such statements to support a contention that all such claimants have, in fact, suffered harm, even without the benefit of the merits of the claim being evaluated or challenged. Courts should be vigilant not to conflate the grant of an application to proceed anonymously with a suggestion or finding that the underlying claim has merit or that damages are presumed. What, if anything, is axiomatic is that the mere filing of a complaint or an application to proceed by a pseudonym is not indicative of merit. Clearly, neither the commencement of an action seeking damages as a result of alleged sexual abuse of a child under the Child Victims Act or otherwise, nor the grant of an application for leave to proceed anonymously, should be construed as indicative that the action has merit. Plaintiffs maintain the burden of proving by a preponderance of the evidence that their claims are meritorious.
Against that backdrop, the Court will now consider whether, having disclosed her identity to the parties, plaintiff should be allowed to withhold it from the public by proceeding under the pseudonym, "Jane Doe", with a sealed file. Plaintiff's request conflicts squarely with the presumption in favor of open trials.
Discussion
The predicate for plaintiff's application is two-fold. First, she alleges that she may suffer additional harm if her identity is revealed to the general public by allowing the filings in this matter to bear her name. Second, she alleges that she is concerned that her children may be subjected to teasing, taunting and humiliation if she is not permitted to proceed anonymously.
As Justice Jaeger observed in Good Samaritan , "the party seeking anonymity is required to provide evidence corroborating the allegations in support of the request." Doe v. Good Samaritan, supra at *2, 110 N.Y.S.3d 830. Citing Doe v. The New York and Presbyterian Hospital , 2018 WL 1226046 at *3 (Sup. Ct. New York County, 2018). Thus, the first inquiry by a court is whether plaintiff has provided any support for the application.
In The New York and Presbyterian Hospital, supra , Justice Mendez denied an application by defendants to be sued under pseudonyms. In that case, multiple plaintiffs sued the hospital defendant and various medical practices for money damages arising from sexual assault or abuse committed on them by their former gynecologist, Robert Hadden, who had pled guilty to one count of criminal sexual act in the third degree and one count of forcible touching. Hadden was subsequently stripped of his medical license. In the civil action, defendants sought to proceed under pseudonyms, claiming that plaintiffs' lawyer had posted articles on Facebook and Twitter approximately 4 years earlier which were critical of defendants who they feared having their defense to the action being prejudiced as a result. The court denied the application because defendants failed to submit an affidavit from a person with knowledge. Rather, defendants relied on a "cease and desist" letter from defendant's counsel to plaintiffs' counsel. Defendants did not, according to the decision, show any effort to have plaintiffs' counsel remove the posting, nor did they show that there had been any more recent postings. As stated by the court, defendants "are merely stating potential embarrassment, damage to reputation and a general desire for privacy" as justification for their request. Id. *4.
By contrast, here, plaintiff submits her own affidavit in support of the application to proceed anonymously. In the affidavit, she asserts that she "may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm should [her] identity be revealed." Affidavit in Support ¶7. No other evidence is submitted to support that assertion. For example, plaintiff has not submitted any corroborative medical evidence of the harm she alleges that she suffered as a result of the claimed child sexual abuse. Unlike James, supra , plaintiff has not submitted any affidavits from a mental health professional attesting with a reasonable degree of medical/psychological/psychiatric certainty that public disclosure of plaintiff's name at this juncture will cause any harm to her. However, one does not need to be a mental health provider to accept the general proposition that a person who is sexually abused as a child may suffer emotional or psychological harm. Consequently, the court must consider whether plaintiff's self serving statement that she "may" suffer additional emotional harm is adequate as a matter of law to justify allowing her to proceed under a pseudonym.
The Court is not of the opinion that victims of child sexual abuse do not suffer emotional harm. There is no evidence on this application that plaintiff has experienced such harm. Plaintiff's failure to submit such evidence is indicative of her counsel's misapprehension that a plaintiff in a Child Victims Act case is entitled to proceed under a pseudonym automatically. This Court hopes that the discussion of the applicable law in this matter will clarify the requirements for an application seeking leave to proceed anonymously or under a pseudonym.
In addition, in this case, the Court must consider whether plaintiff's claim, made for the first time in her reply affidavit, that her children may be adversely affected if her identity is revealed is properly before the Court.
Consideration of the Claims Raised in Plaintiff's Reply
Generally, where new information is offered for the first time in reply papers, courts are loathe to consider that information even if relevant. In this regard, plaintiff's claims that her children may be impacted if her identity is revealed in public records is new information which is relevant. This creates a conundrum for the Court. While the information is clearly relevant, plaintiff's counsel withheld it from consideration until reply, thereby depriving MacFarland of the opportunity to offer opposing information.
Of course, better practice would be for moving counsel to include all relevant facts in their moving papers rather than wait for reply.
The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce
new arguments in support of, or new grounds for the motion. EPF International Limited v. Lacey Fashions, Inc. , 170 A.D.3d 575, 97 N.Y.S.3d 45 [1st Dept. 2019], Wells Fargo, N.A. v. Marchione , 69 A.D.3d 204, 887 N.Y.S.2d 615 [2nd Dept. 2009], Dannasch v. Bifulco , 184 A.D.2d 415, 585 N.Y.S.2d 360 [1st Dept. 1992].
Plaintiff has offered no excuse for omitting from her moving papers the claim that her children might be affected if they or their classmates learn that she has brought claims of sexual abuse against the school district. However, the allegation that plaintiff has two children who attend school in the School District about whom she has concerns if her identity is required to be revealed is not something that defendant, even if apprised of this allegation in the moving papers, could refute. Moreover, given the lack of clear guidance from the courts in these kinds of cases as to the quantum of proof required to support an application to proceed under a pseudonym, in the interests of justice the Court will consider plaintiff's claims that her children might be adversely affected.
Identifying and Applying the Factors
Harvesting the factors which other Federal and State courts have considered relevant to determining if a party should be permitted to proceed anonymously yields the following list of factors to be considered:
1. Is the application supported by an affidavit by a party with knowledge?
2. Does the case involve matters which are ordinarily and customarily kept private because of their sensitive or personal nature?
3. Does identification of the party seeking to proceed under a pseudonym present the risk of harm to him/her or other innocent individuals?
4. Will the individual seeking anonymity/pseudonymity suffer the harm sought to be protected against by requiring his/her identity to be revealed to the public?
5. Is the individual seeking anonymity/pseudonymity particularly vulnerable to possible harms of disclosure?
6. Is the party seeking anonymity challenging any governmental activity?
7. Will the defendant(s) be prejudiced by allowing plaintiff to proceed anonymously/pseudonymously?
8. Has the identity of the party seeking anonymity/pseudonymity already been publicly disclosed?
9. Is the dispute one in which a strong public interest is implicated or is the dispute strictly legal in nature?
10. Are there other mechanisms by which the party seeking anonymity/pseudonymity can be protected?
11. Will any of the parties be put to excessive cost in redacting a party's name from litigation documents?
12. Will anonymity/pseudonymity affect the willingness of a party to proceed with his/her claims?
13. Will allowing a party to proceed anonymously/pseudonomously create an imbalance in negotiating positions?
14. Will allowing a party to proceed anonymously/pseudonomously encourage a party to admit to criminal activity?
15. Are there any other relevant factors that the Court should consider in a specific case?
The breadth of the list, while not exhaustive, is indicative of the vexatious nature of these applications. The Court will now apply these factors to the instant matter. First, plaintiff's application is supported by her affidavit and reply affidavit, both of which are from a person with knowledge. MacFarland has responded only that the bare allegation of possible emotional harm is insufficient to justify the relief sought. He has not, however, contested that the potential harm plaintiff (and her children) might suffer can occur. Since the allegations made are not otherwise contested, the Court will view the allegations as if true for the purposes of this motion. Plaintiff's affidavits meet the requirement that an application for anonymity/pseudonymity be supported by an affidavit of a party with knowledge. Although in James, supra , plaintiffs submitted an affidavit from mental health providers attesting to the potential harm to plaintiffs' children, case law in New York has not required such corroborating evidence from a mental health provider. Indeed, requiring such level of proof at this threshold stage of the proceedings would be unprecedented.
Second, there can be little question that the issues raised in this action implicate matters that can be considered "highly sensitive and of a personal nature". Plaintiff alleges that she was coerced into a sexual relationship with MacFarland as early as when she was 13 years old. The intimate details of such a claim, if true, are clearly highly sensitive and of a personal nature. Thus, this factor weighs in favor of allowing plaintiff to proceed under a pseudonym.
While plaintiff admits that her relationship with MacFarland extended well beyond her reaching the age of majority, a time when she was no longer deemed by law to be incapable of consent, that is not the time period relevant to this action.
Third, the Court considers whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or to other innocent non parties. Plaintiff is no longer a student at the school where defendant was employed and is not in a position to be retaliated against by defendant. As a result, the likelihood of retaliatory harm to her is nil. Since the Court has not been provided with any information concerning the current status of MacFarland's employment, the Court cannot discern whether any risk of retaliatory harm exists as to plaintiff's children. While neither appears to be of high school age, they soon will be attending school in the same School District where plaintiff alleges she was a victim. Further, plaintiff contends that she is concerned that her children may be "teased, tormented, or harassed" or "otherwise suffer severe emotional distress" if her name is revealed. The cruelty of children towards other children can be boundless, especially where one child is singled out as "different" for any reason. The effects of bullying on young children is well known. Clearly, pre-adolescent children are especially vulnerable to such conduct. Courts should not perpetuate or exacerbate a claimed wrong by subjecting innocent children to the risk of harm. Consequently, concerns about possible retaliation against plaintiff's children by school administrators, teachers or peers supports allowing plaintiff to proceed under a pseudonym.
Fourth, case law instructs that the Court should evaluate whether "the injury litigated against would be incurred as a result of the disclosure of plaintiff's identity". Essentially, a factor to be considered is whether the same harm will befall plaintiff if her identity is revealed. Here, plaintiff is not in proximity to MacFarland and is no longer a school aged child. Given that plaintiff is over 50 years of age, it is impossible for her to become the victim of child sexual abuse. For that reason, this factor does not apply. Fifth, the Court considers whether the party seeking anonymity is particularly vulnerable to possible harms of disclosure. As noted above, defendant has not challenged plaintiff's claims that she may experience "further mental anguish, trauma, humiliation, re-victimization and additional emotional harm" if her identity is revealed. More importantly, perhaps, is that one of the raison d'etres for the Child Victims Act, as recounted by Justice Silver is to "help the public identify hidden child predators through civil litigation discovery". Plaintiff has averred that if she is compelled to reveal her identity, she may abandon the action. Thus, plaintiff faces a Hobson's choice if the Court denies her application — reveal herself and risk harm to herself and her children or discontinue the action and allow what might otherwise be a meritorious claim to go undetected.
Sixth, the Court considers whether the suit is challenging the actions of the government or that of private citizens. In the instant action, plaintiff has challenged both. She has sued MacFarland, an individual, and the School District by which he was employed and which she attended. Here, the School District has not opposed plaintiff's application. MacFarland's opposition is predicated on claims of damage to his reputation, yet he has not sought to be sued under a pseudonym.
Seventh, the Court evaluates whether defendant is prejudiced by allowing plaintiff to press her claims under a pseudonym and whether any prejudice can be mitigated by the Court. In most cases, as here, any prejudice to the defendant's ability to prepare a defense can be ameliorated by requiring plaintiff to reveal his/her identity to defense counsel. Even in such cases, however, courts will have to consider whether allowing a plaintiff to proceed under a pseudonym works to prejudice defendant's ability to locate witnesses or conduct a proper investigation. Are defendants in actions where plaintiff has been granted the right to use a pseudonym permitted to reveal the plaintiff's true name while interviewing potential witnesses? Has the inclusion of defendant's name in the pleadings, a factor over which defendant had no control, subjected him/her to the same concerns voiced by plaintiff of harassment or ridicule? Has defendant's continued employment been put at risk because of the allegations levied? Here, MacFarland has not moved for leave to proceed anonymously or by a pseudonym, as he could have. Moreover, MacFarland's contention that the relationship was one between consenting adults which did not commence until after plaintiff was no longer a minor, indicates that he will not be prejudiced by allowing plaintiff to proceed under a pseudonym. In addition, the fact that the School District has been sued and will have to produce its administrators to defend the claims against it, will provide these witnesses to support MacFarland's defense against plaintiff's allegations.
In a case where plaintiff seeks to conceal his/her identity from all, including the defendant, preparation of a defense would undoubtedly be hampered. Hence, in such cases, courts should weigh very heavily whether the grant of total anonymity would eviscerate a defendant's due process rights. As stated above, only in the most egregious cases, ones where harm to plaintiff as a result of revealing his/her identity is not merely possible, but inevitable, should a court even consider total anonymity, perhaps limiting disclosure to defense counsel, but not defendant.
The Court is struck by the fact that plaintiffs who seek to proceed under a pseudonym may be adversely affecting their own cases. Plaintiffs who proceed as "Jane/John Doe", may miss the opportunity for potential witnesses to identify themselves to corroborate their claims. Here, plaintiff asserts that her relationship with MacFarland was open and notorious. If that is so, and the fact that she has filed suit becomes known to the public, other students or faculty who were aware of the relationship may come forward as witnesses. As such, the Court is left to wonder whether it is actually in plaintiff's interest for her name to be concealed from the public
Eighth, the Court considers whether plaintiff's identity has been kept secret prior to the application for anonymity. Here, plaintiff initiated this action with an Order to Show Cause seeking to restrict disclosure of her name. Since then, she acquiesced to revealing her name to defendants. Plaintiff states in her affidavits that the relationship with MacFarland was known to school officials at the time of the alleged abuse. She also states that defendant flaunted the relationship by placing a photo of her on his desk for all to see and in other ways. By plaintiff's admission then, the relationship with MacFarland was not kept secret. However, unlike plaintiffs in FedCap, supra , and Shakur, supra , her identity has not been made known to the public and she has averred that she has eschewed and will not seek publicity.
Ninth, the cases instruct that courts should consider "whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose [her] identity". This factor is addressed above and militates in favor of disclosure of plaintiff's name. The public clearly has a right to know who is leveling accusations against not only a guidance counselor but also numerous administrators in the School District. District administrators must be permitted to evaluate the credibility of the allegations lodged and to act in response to them if appropriate. This is particularly true since plaintiff alleges that MacFarland's alleged abuse was common knowledge. The public's right to know and to evaluate the bona fides of the complaint with as much information as possible is significant.
In weighing the extent of public interest in knowing the parties' identities, courts evaluate the nature of the litigation, whether it is "purely legal" in nature such that there is an "atypically weak public interest in knowing the parties' identities." Here, the dispute is not purely legal. The issues raised by plaintiff go to the very heart of the in loco parentis role played by school districts in whose care minor children are placed daily. Whether a school district employee, with the knowledge of numerous district employees (as alleged by plaintiff), used his position to cultivate and abuse a minor is of significant interest to the public. Hence, this factor militates in factor of disclosing plaintiff's identity.
Tenth, case law suggests that the Court consider whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff. Plaintiff's application seeks, in addition to the right to proceed under a pseudonym, the redaction of her personal information from documents which are filed with the County Clerk. Concealment of plaintiff's personal information or of specific allegations of the sexual activity alleged can be accomplished in any number of ways. The parties can enter into a stipulation of confidentiality or a non disclosure agreement of materials acquired or produced during discovery. Redaction of sensitive or explicit information from filed materials can address this concern.
Eleventh, the Court considers the cost redacting information from filed materials might impose on the parties. The Court has been presented with no information concerning this factor, indeed, none of the parties has raised it. Under current NYSCEF filing procedures, sensitive or confidential information can be noted as such and access to filed documents can be easily limited. Further, as indicated above, the parties can enter into a non—disclosure stipulation.
Twelfth, courts should consider whether the denial of an application to proceed anonymously or under a pseudonym will affect the willingness of a party to proceed. In light of the stated purposes of the Child Victims Act, to allow the opportunity for relief to victims of alleged child sexual abuse, it would be manifestly unfair if the denial of an application to proceed anonymously would negate the party's newly restored rights. As noted above, plaintiff has indicated that she will forgo this action rather than risk her children being "teased, tormented or harassed, by their peers or others" because of the acts which she contends she suffered. In the absence of demonstrated prejudice to a defendant, a court should not be an instrument which unfairly or unreasonably abrogates a party's rights.
Thirteenth, some cases suggest that a court should consider whether allowing a party to proceed under a pseudonym will create an imbalance in settlement negotiating positions. Here, it is obvious that the parties' principal dispute arises from when and under what circumstances their relationship began. Neither party's negotiating posture will be affected if plaintiff is allowed to proceed under a pseudonym. Each has his/her view of the evidence, as will be developed through discovery. Plaintiff would not gain, and defendant would not lose, any position in negotiations predicated on whether plaintiff's identity is revealed to the public.
Fourteenth, the Court in Shakur, supra , suggests that a court should consider whether any party might be inclined to admit his/her intent or actual commission of a crime dependent on whether plaintiff is permitted to proceed anonymously or under a pseudonym. Here, defendant has admitted to a sexual relationship with plaintiff. Plaintiff contends, essentially, that the relationship began when she was a minor. As such, plaintiff is alleging, in effect, that MacFarland committed statutory rape or other sexual offenses identified in the Penal Law. Defendant has denied this. Hence, this factor is not applicable to the instant matter.
Finally, the Court looks to other factors. In recent years, the "Me Too" movement has made extraordinary efforts in advancing the rights of people who claim to have been sexually abused. As part of the movement, society as a whole has come to recognize that victims of sexual abuse are not to be reviled, criticized or stigmatized. Rather, society has turned the focus on the abusers, adopting laws like the Child Victims Act, to allow victims to pursue civil and criminal remedies many years after the alleged abuse occurred. Concomitant with the movement to empower victims by providing the possibility of monetary or other redress, comes a recognition that the victims should not remain in the shadows, hiding as if they have done something wrong that warrants them feeling shame. In this Court's opinion, asking the Court to allow plaintiff to remain in the shadows only reinforces the ill informed opinion that a victim of sexual abuse is to be stigmatized. This Court believes that only by allowing these claims to be seen openly in the light of day can society truly come to grips with child sexual abuse and appreciate that victims are not to be held responsible and it is the abusers who must be made accountable.
Notwithstanding these observations, having considered the factors enumerated above and balanced them to achieve what is just, the Court finds that allowing plaintiff to proceed under a pseudonym is appropriate. Here, the tipping point in favor of allowing plaintiff to proceed as Jane Doe is the potential impact to her children, both of whom attend school in the School District. The Court is particularly mindful of the impact of social media and the extent to which children can be readily exposed to taunting and harassing behaviors through such medium. In this Court's view, placing plaintiff into a Hobson's choice of proceeding under a pseudonym or discontinuing her action would negate the intent of the Child Victims Act. Here, issues which are sensitive and intimate have been raised and there is arguably a significant risk of harm to innocent third parties and little chance of prejudice to the only defendant who has opposed the application. Hence, the balance is tipped in favor of pseudonymity. Further, revealing plaintiff's identity now is a bell which cannot be un-rung. Allowing plaintiff to proceed under a pseudonym while the case develops imposes minimal burdens.
Significant questions will arise as this case makes its way to trial. If plaintiff opts to publicize her claims as the case proceeds, clearly she should not be permitted to continue to use a pseudonym. Similarly, if defendant demonstrates that the grant of pseudonymity has resulted in significant prejudice to him during discovery, the Court may have to revisit the issue. These and other nascent issues remain to be addressed in this case and other cases brought as a result of the Child Victims Act in which a party has been permitted to proceed under a pseudonym. For example, if a jury trial is requested, will plaintiff seek to conceal her true identity from the jurors? Will plaintiff seek permission to testify as "Jane Doe"? If so, the Court will have to consider whether the grant of pseudonymity to plaintiff can be mitigated by an appropriate jury charge or whether allowing plaintiff to do so visits other prejudice to defendant. See e.g. James, supra , (the Court instructed the jury that plaintiffs were being permitted to proceed under pseudonyms to protect the interests of the children irrespective of the merits of the action). Those issues await later determination.
Plaintiff's application to proceed as "Jane Doe" is granted. Jane Doe shall be substituted for plaintiff's true name on all papers filed in this matter. All documents filed in this action shall be redacted to eliminate plaintiff's true name. Counsel shall retain un-redacted originals of all documents which are filed for use at trial or, if appropriate, for in camera inspection by the Court in connection with motion practice or as otherwise directed by the Court.
Civil Rights Law § 50-bPlaintiff also seeks to predicate her application on Civil Rights Law § 50-b. The inapplicability of Civil Rights Law § 50-b to actions in which there has been no criminal proceeding commenced has been adequately and adroitly addressed by Justice Jaeger in Good Samaritan Hospital, supra . The Court adopts the reasoning of Justice Jaeger and concurs that Civil Rights Law § 50-b has no applicability to this matter. As stated by Justice Jaeger:
the Court finds Plaintiff's reliance on Civil Rights Law § 50-b to be misplaced. Actions revived under CPLR § 214-g pursuant to the Child Victims Act such as this action are civil in nature. First, § 50-b requires confidentiality (unavailability for public inspection) of all records of a public officer or employee that tend to identify the victim, including a court file. (Citation omitted). Plaintiff herein does not request sealing or unavailability of the Court's records.
Second, § 50-b was enacted to protect the disclosure of the identity of a victim of sex crimes to ensure the victim's cooperation
in criminal investigations or prosecutions. (Citation omitted). There is no indication any such investigation or prosecution is involved herein. The Court should not extend the scope of § 50-b beyond the express language of the statute and the intention of the Legislature as set forth in the cases cited above. Good Samaritan, supra .
Consequently, to the extent that plaintiff's application is predicated on Civil Rights Law § 50-b, that portion is rejected.
SUMMARY
Plaintiff's application to proceed under the pseudonym "Jane Doe" is granted. The caption in all papers filed in this action shall be filed using "Jane Doe" as the named plaintiff. All references within all other papers which are filed shall redact plaintiff's true name prior to being filed. Counsel for all parties shall retain the original, unredacted copies of all such papers for production to the Court if requested.
Plaintiff's application to proceed as "Jane Doe" based on Civil Rights Law § 50-b is denied.
The foregoing constitutes the Decision and Order of the Court.