Strictly Legal: Plaintiff anonymity a balancing test

·3 min read

A New York District Court recently granted a motion to proceed using a pseudonym in favor of a member of the New York State Police who was assigned to former Governor Andrew Cuomo’s Protective Service Unit.

The plaintiff’s motion sought to use a pseudonym in her lawsuit against the police, Cuomo, and other state officials which alleges discrimination and retaliation in violation of the federal equal protection clause, the New York state human rights law, and the New York City human rights law.

The Second Circuit has established a non-exhaustive list of factors, known as the sealed plaintiff factors to assist in weighing the interests of the parties and the public. Courts are not required to “list each of the factors or use any particular formulation as long as it is clear that the court balanced the interests at stake in reaching its conclusion.”

Before beginning its analysis, the court noted that the defendants did not oppose the plaintiff’s motion to proceed under a pseudonym at the time of the motion, but sought the right to revisit the issue later on in the litigation process.

The court evaluated the sealed plaintiff factors to support its ruling on the motion. First, the court looked at the nature of the litigation, in other words, whether the litigation involves highly sensitive or personal matters. Weighing this factor in favor of the plaintiff, the court noted that cases involving allegations of sexual harassment have been found to be “highly sensitive and of an extremely personal nature.”

The court then evaluated the next three factors dealing with the risks associated with identifying the plaintiff. The factors include the potential for retaliatory physical or mental harm, and the severity of such harms. The court weighed these factors in favor of the plaintiff given the high profile nature of the case and the potential for “future unnecessary interrogation, criticism, or psychological trauma.”

Next, the court balanced the factors that address prejudice to the defendants. The court noted that in suits against the government, a plaintiff’s interest in anonymity is “particularly strong,” because institutional defendants are less likely to be prejudiced by a plaintiff’s anonymity. Further, the court noted that the defendants already knew the plaintiff’s identity, and therefore weighed these factors in favor of the plaintiff.

The court evaluated the remaining sealed plaintiff factors and determined that all but one weighed in favor of protecting the plaintiff’s anonymity. The plaintiff’s identity had been kept confidential to the public at large throughout the investigation and other legal proceedings, and government officials refused to identify her. Although the court found that there is a substantial public interest in the litigation, the plaintiff was challenging a governmental action, and the price of access to the courts should “not be too high.” In other words, the plaintiff shouldn’t have to suffer public scorn or retaliation for pursuing a valid but, unpopular claim.

The Court ultimately determined that there was little to no prejudice to defendants at this stage, balanced against a likelihood of harm to plaintiff if she were required to reveal her identity.

Justice shouldn’t take place in secret. Let’s hope this decision is truly the exception that proves the rule.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues

This article originally appeared on Cincinnati Enquirer: Plaintiff anonymity a balancing test