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Court of Appeal:
Judge Must Authorize a Party to Proceed As ‘John Doe’
Third District’s Opinion Runs Counter to Widespread Recent Practice
By a MetNews Staff Writer
The Third District Court of Appeal has declared that a person may not litigate in the state’s courts under a pseudonym without securing the court’s permission—contrary to a custom followed increasingly in recent years.
The opinion, filed Friday, broadly proclaims that “the right to access court proceedings necessarily includes the right to know the identity of the parties.
In federal courts, obtaining court permission to proceed under a false name is mandated, but California’s Superior Court judges, bound by no court rule requiring their assent, have routinely desisted from questioning the determination by plaintiffs’ lawyers that privacy interests warrant reference to their clients in litigation as “Does” or “Roes.” Such references have generally been adopted without inquiry by appellate courts in acting on appeals and writ petitions.
Acting Presiding Justice Adrienne Grover authored the opinion declaring that “[w]hen a party to a civil action asks to proceed under a fictitious name, the trial court must determine whether that party’s privacy concerns outweigh the First Amendment right of public access to court proceedings,” and finding that asking is required.
She noted that “no California case has articulated the standard that applies to determine whether a party may proceed anonymously absent specific statutory authorization.”
NBC Subsidiary Cited
Grover pointed to the California Supreme Court’s 1999 opinion in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court in which the closure of a civil trial was denounced. That opinion, by then-Chief Justice Ronald George, says:
“The need to comply with the requirements of the First Amendment right of access may impose some burdens on trial courts. But courts can and should minimize such inconveniences by proposing to close proceedings only in the rarest of circumstances….”
In Friday’s Court of Appeal opinion, Grover wrote:
“Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings.”
The opinion adds that “[o]utside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur”—quoting from NBC Subsidiary—“only in the rarest of circumstances.”
Prescribing the procedure to be followed in seeking anonymity, Grover said in a footnote:
“Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party’s true name.”
Factor Erroneously Ignored
Grover’s proclamation that judicial consent to anonymity must be obtained comes in an opinion acknowledging that one of those “rarest of instances” might be presented. It holds that a judge erred in denying permission for a man to be referred to in litigation pseudonymously after declining to consider the contention that revealing his identity in the case—in which employment discrimination is claimed based on his being of a lower caste—could cause retaliation in India against his family there.
The opinion grants a petition for a writ of mandate sought by the California Department of Fair Employment and Housing. The department is suing Cisco Systems, Inc. and two of its supervisors, Ramana Kompella and Sundar Iyer, under the Fair Employment and Housing Act (“FEHA”) based on alleged employment discrimination against a man, the real party in interest, whom it has fictionally denominated “John Doe.”
Grover recited that the department has put forth evidence that if it is known in India that the family is of a lower cast, violence against that family might result. Papers publicly filed in California revealing the basis of the discrimination against Doe, it argued, might gain attention in that nation.
The department explains in its Superior Court complaint that Doe “is Dalit Indian, a population once known as the ‘Untouchables’ who are the most disadvantaged people under India’s centuries-old caste system,” noting that “lower caste persons like Dalits continue to face de facto segregation and discrimination in all spheres.” It asserts “upon information and belief, the same is true of the Indian employees in Cisco’s workforce in San Jose, California,” where “Doe worked with a team of entirely Indian employees.”
Trial Court Decision
The contention that Doe needed anonymity did not find favor with Santa Clara Superior Court Judge Drew C. Takaichi. In denying the motion to conceal his identity, the judge said:
“While the Court has great sympathy for the plight of those members of the Dalit in India, research has not revealed any case authority—and Plaintiff has not pointed to any case authority—as to whether residents of another country or another country’s discriminatory practices is a consideration as to whether a party in California may remain anonymous in a lawsuit alleging violation of the California FEHA against a corporation in California.”
In her opinion granting a writ ordering that the Superior Court reconsider its ruling, Grover declared:
“We conclude evidence of potential harm to family members anywhere is a legitimate consideration in determining whether a party should be granted anonymity in litigation.”
Geographical Remoteness Irrelevant
She elaborated:
“Retaliatory harm to family members—wherever they are located—is precisely the kind of interest that may justify allowing a party to litigate under a pseudonym. As the trial court acknowledged, substantial risk of harm to the employee himself would be sufficient to allow for anonymity. An identifiable risk that family members will suffer retaliatory physical harm should be treated the same way. Indeed, specific concerns for the safety of family members may sometimes be greater than the concern for one’s own safety. The fact that the family members are geographically distant does not render the concern irrelevant as a threshold matter.
“A party seeking anonymity has the burden to show that geographically distant family members are at risk. The trial court’s task is to consider the evidence produced on that point and assign it the appropriate weight.”
The case was remanded with instructions “reconsider the motion based on the views expressed in this opinion.”
The case is Department of Fair Employment and Housing v. Cisco Systems Inc.. 2022 S.O.S. 3492.
Hathaway Comments
Los Angeles attorney Mark Hathaway of Hathaway Parker Inc., who with frequency brings actions in the names of college students he identifies as “Jane Doe” or “John Doe,” commented yesterday: “The public has little or no interest in learning the true name of this unknown employee and their family in India, but has a great interest in the enforcement of fair employment laws and equality. Sometimes private individuals can only proceed under a fictitious name because of the permanent damage from the public exposure even if they prevail. No public interest is served where important rights are abandoned and never enforced because a private person is too intimidated to proceed.
“Justice Grover is absolutely correct that the trial court must consider the complete circumstances, including possible retaliation against family elsewhere, when balancing the public right of access with an individual’s privacy interests.”
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