UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe
v. Civil No. 18-cv-040-LM
Opinion No. 2018 DNH 088
Trustees of Dartmouth College
O R D E R
Plaintiff brings this lawsuit against defendant Trustees of
Dartmouth College (“Dartmouth”), alleging violations of his
rights under Title IX, along with a number of related state-law
claims. Contemporaneously with his complaint, plaintiff filed a
motion to proceed under the pseudonym “John Doe” (doc. no. 2).
Dartmouth takes no position on the motion. For the following
reasons, plaintiff’s motion is granted.
BACKGROUND
Plaintiff’s central claim is that Dartmouth discriminated
against him on the basis of his sex when it expelled him for
misconduct stemming from a drunken sexual encounter with a
female student. A detailed recitation of the allegations in the
complaint is necessary to understand the context of plaintiff’s
desire for anonymity.
Plaintiff alleges that, in August 2016, while a student at
Dartmouth, he engaged in sexual contact with a female student— hereinafter referred to by the pseudonym “Sally Smith”—after a
fraternity party. Plaintiff describes Sally as the sexual
aggressor, and as someone he knew to be interested in
sadomasochistic sex. Plaintiff claims that he “blacked out”
from intoxication before the encounter and had no memory of
seeing Sally that night. The next morning, plaintiff awoke to
find Sally in his bed, and the two engaged in consensual sexual
intercourse. Sally then explained what had occurred the
previous night, and stated that “things had gotten a bit
‘rough.’” Doc. no. 1-3 at ¶ 18. Plaintiff told Sally that he
had no memory of the previous night. When Sally left his room,
plaintiff fell back to sleep.
Plaintiff alleges that when he woke up, he was in physical
pain. He had bruises and scratches on his back, his nipple was
bleeding, and he felt “extreme pain” in his genitalia.
Plaintiff claims that Sally sent him a text message that day,
describing the night as “fun” and enclosing photos of herself
that showed bruises on her body. Later that day, they met to
talk, and Sally stated that they had engaged in “rough foreplay”
and slapping, and had fallen off the bed multiple times. Id. at
¶ 23. Sally also told plaintiff that he had asked her to leave
several times on that night.
2
In October 2016, Sally filed a complaint against plaintiff
with Dartmouth’s Title IX office. She alleged that plaintiff
had physically assaulted her during their sexual encounter in
August, but she told a Dartmouth official that the sexual
contact was itself consensual. After receiving the complaint,
Dartmouth notified plaintiff that it was instituting an
investigation into whether he had violated standards governing
both physical and sexual misconduct. On November 2, 2016,
plaintiff filed a complaint against Sally, alleging that his
intoxication rendered him incapable of consenting to the sexual
encounter on August 4, and that she had caused him physical harm
during that encounter. Dartmouth jointly investigated both
complaints.
According to plaintiff, his version of events was borne
out by the evidence. After receiving the preliminary report and
factual findings, Sally and plaintiff communicated to Dartmouth
that they had reached an agreement and wished to terminate the
investigation. Thereafter plaintiff filed a written response to
the preliminary report, noting its alleged inaccuracies and
discrepancies.
On March 3, 2017, Dartmouth notified plaintiff that it
found a violation of the physical misconduct standard (i.e.,
placing another student at risk of physical harm), but found no
3
violation of the sexual misconduct standard. Dartmouth found
that Sally had not violated either standard.
Dartmouth then instituted the process to determine the
sanction. Plaintiff alleges that, over his objection, Dartmouth
deprived him of the ability to appear before or write to the
people deciding his sanction. Dartmouth decided that expulsion
was the appropriate sanction. Plaintiff appealed that sanction,
and it was upheld. Plaintiff alleges that the appellate
decision-maker was biased against him because of his gender, and
that her bias was evident in an article she had written in 2014
about sexual assault on college campuses.
Plaintiff further alleges that the climate at Dartmouth
infected his investigation with gender bias. He claims that his
investigation occurred at a time when students were hyperfocused
on allegations of violence against women, and while Dartmouth
was under federal investigation for its handling of sexual
misconduct complaints.
Plaintiff brought this action in January 2018, raising
claims for violation of Title IX, breach of contract, breach of
the implied covenant of good faith and fair dealing, and
negligence. On March 19, 2018, the court held a hearing on the
present motion.
4
DISCUSSION
Plaintiff argues that, given the nature of the underlying
facts and Dartmouth’s findings, his reputation, career
prospects, and mental health will be significantly damaged if he
is not permitted to proceed under a pseudonym. He contends that
the mere public identification of a person “accused of and found
responsible for assault by a college is severe and can have
life-long effects on the [person’s] ability to complete his
education and gain employment,” and can also increase the
likelihood that the person will be the target of threats,
harassment, and intimidation. Doc. no. 21 at 4. He maintains
that, if the court requires him to reveal his identity, the
purpose of his lawsuit will be defeated and the very harms he is
trying to undo will be compounded and exacerbated.
Before delving into the merits, however, there is a
threshold question to address regarding the appropriate standard
of review. As plaintiff notes, neither the U.S. Supreme Court
nor the First Circuit has definitively articulated the
circumstances under which a plaintiff may use a pseudonym.
Plaintiff relies on certain balancing tests developed by other
federal courts of appeals to support his position. At the
hearing, the court expressed some skepticism as to whether it
should apply one of these balancing tests over the First
5
Circuit’s test for determining whether to seal judicial records.
Plaintiff has filed a supplemental memorandum further expanding
on his view of the relevant law.
Therefore, the court begins by addressing the appropriate
standard of review, before applying that standard to the
circumstances presented. As will be discussed below, the court
concludes that plaintiff may proceed under a pseudonym, at least
during pretrial proceedings.
I. Standard of Review
The starting point for the court is the Federal Rules of
Civil Procedure, which “make no provision for pseudonymous
litigation.” Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C.
2005); see also Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir.
2000) (stating that “there does not appear to be any specific
statute or rule supporting the practice” of pseudonymous
litigation). Rather, Rule 10(a) requires that the caption of a
complaint name all of the parties. “This rule serves more than
administrative convenience. It protects the public's legitimate
interest in knowing all of the facts involved, including the
identities of the parties.” Plaintiff B v. Francis, 631 F.3d
1310, 1315 (11th Cir. 2011) (quotation omitted).
Nevertheless, many circuit courts “have condoned
pseudonymous litigation.” Qualls, 228 F.R.D. at 10 (collecting
6
cases); see, e.g., Doe v. Megless, 654 F.3d 404 (3d Cir. 2011);
Francis, 631 F.3d at 1315-16; Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185 (2d Cir. 2008). While recognizing that
one of the “essential qualities of a Court . . . is that its
proceedings should be public,” courts have accepted that
exceptional circumstances may justify the use of a pseudonym,
including in cases involving “abortion, birth control,
transsexuality, mental illness, welfare rights of illegitimate
children, AIDS, and homosexuality.” Megless, 654 F.3d at 408
(internal brackets omitted); see also Francis M. Dougherty,
Propriety and Effect of Use of Fictitious Name of Plaintiff in
Federal Court, 97 A.L.R. Fed. 369 (1990) (collecting cases).1
The First Circuit has yet to explicitly permit the
practice. In the related context of a request to seal judicial
records, however, the First Circuit makes clear that the
“starting point must always be the common-law presumption in
1 There has also been a significant amount of scholarship on the question. See, e.g., David S. Ardia, Court Transparency and the First Amendment, 38 Cardozo L. Rev. 835 (2017); Benjamin P. Edwards, When Fear Rules in Law’s Place: Pseudonymous Litigation As a Response to Systematic Intimidation, 20 Va. J. Soc. Pol’y & L. 437 (2013); Lior J. Strahilevitz, Pseudonymous Litigation, 77 U. Chi. L. Rev. 1239 (2010); Donald P. Balla, John Doe is Alive and Well: Designing Pseudonym Use in American Courts, 63 Ark. L. Rev. 691 (2010); Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U. Kan. L. Rev. 195 (2004); Joan Steinman, Public Trial, Pseudonymous Parties: When Should Litigants Be Permitted to Keep Their Identities Confidential?, 37 Hastings L. J. 1 (1985).
7
favor of public access.” Nat’l Org. For Marriage v. McKee, 649
F.3d 34, 70 (1st Cir. 2011). “[P]ublic access to judicial
records and documents allows the citizenry to monitor the
functioning of our courts,” which ensures “quality, honesty and
respect for our legal system.” Id. (internal quotation marks
removed). “[O]nly the most compelling reasons can justify” the
sealing of a judicial record. Id. (internal quotation marks
removed); see also F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d
404, 412 (1st Cir. 1987) (describing test as one requiring a
showing of “exceptional circumstances” to “overbear the public’s
right of access”).
It is the burden of the party asking for secrecy to make a
showing sufficient to overcome the presumption. McKee, 649 F.3d
at 71. In applying the balancing test in this Circuit, the
district court must be mindful that “the scales tilt decidedly
toward transparency.” Id. at 70. The balance “must be struck,
of course, in light of the relevant facts and circumstances of
the particular case.” F.T.C., 830 F.2d at 410 (internal
quotation marks omitted).
Two cases illustrate the First Circuit’s approach. In
McKee, the First Circuit upheld the lower court’s decision to
make public previously sealed trial documents in a suit
concerning the constitutionality of certain state election laws.
8
McKee, 649 F.3d at 40-41. The plaintiff, National Organization
for Marriage (“NOM”), claimed that the documents should remain
sealed because release would “severely burden” NOM’s ability to
engage in political activities, would invade the privacy of its
third-party contractors, and would subject those contractors to
harassment. Id. at 71.
The court was not persuaded by NOM’s arguments, finding
that they lacked support in the record. Specifically, NOM failed
to identify “any specific information that, if made public, would
damage or chill its political advocacy efforts,” and its claim
regarding harm to contractors rested upon allegations of
harassment that occurred to contractors in a completely
different, albeit highly-charged, political campaign. Id. at 71-72. The court noted, however, that “privacy rights of
participants and third parties are among those interests which,
in appropriate cases, can limit the presumptive right of access
to judicial records.” Id. at 72.
In F.T.C., the First Circuit upheld the lower court’s
decision to make public personal financial statements of
defendants—owners of corporations—in a deceptive trade action
brought by the Federal Trade Commission. F.T.C., 830 F.2d at
408-09. The defendants claimed that release of the documents
would “intrude impermissibly upon their privacy (and that of
9
their families).” Id. at 411. In reviewing that claim, the court
noted that the fact that a government agency was a party weighed
heavily in favor of public access. Id. at 412. And, in the end,
disclosure was warranted because defendants failed either to
point to “a single particularized harm which might befall them”
or to substantiate with affidavits or other evidence the “broad
generalization” that disclosure would be harmful to their privacy
interests. Id.; see also id. (stating that a “naked conclusory
statement of feared injury falls woefully short of the kind of
showing which raises even an arguable issue” (quotation and
brackets omitted)).
These cases enunciate certain guiding principles that must
attend this court’s analysis of plaintiff’s motion, including the
presumption of public access and the need for a compelling
countervailing interest to justify limitations to that access.
But, beyond that, the First Circuit has not addressed the
particular question at issue here.
For that reason, this court turns to the standards
developed by other courts of appeal. Although circuit courts are
generally “in agreement that district courts should balance a
plaintiff’s interest and fear against the public’s strong
interest in an open litigation process,” they present slightly
different lists of relevant factors. Megless, 654 F.3d at 408.
10
The Third Circuit set forth one such balancing test in Doe
v. Megless, 654 F.3d 404 (3d Cir. 2011). Under that test, the
district court’s task is to “determine whether a litigant has a
reasonable fear of severe harm that outweighs the public’s
interest in open litigation.” Megless, 654 F.3d at 409. It is
not enough that the plaintiff may suffer embarrassment or
economic harm as a result of public identification; the plaintiff
must show both a fear of severe harm and that the fear is
reasonable. Id. at 408. The Third Circuit has adopted a nonexhaustive set of nine factors that should be considered:
(1) the extent to which the identity of the litigant
has been kept confidential; (2) the bases upon which
disclosure is feared or sought to be avoided, and the
substantiality of these bases; (3) the magnitude of
the public interest in maintaining the confidentiality
of the litigant's identity; (4) whether, because of
the purely legal nature of the issues presented or
otherwise, there is an atypically weak public interest
in knowing the litigant's identities; (5) the
undesirability of an outcome adverse to the
pseudonymous party and attributable to his refusal to
pursue the case at the price of being publicly
identified; [] (6) whether the party seeking to sue
pseudonymously has illegitimate ulterior motives
. . . . [(7)] the universal level of public interest
in access to the identities of litigants; [(8)]
whether, because of the subject matter of this
litigation, the status of the litigant as a public
figure, or otherwise, there is a particularly strong
interest in knowing the litigant's identities, beyond
the public's interest which is normally obtained; and
[(9)] whether the opposition to pseudonym by counsel,
the public, or the press is illegitimately motivated.
Id. at 409.
11
The Third Circuit’s test is consistent with the overall aim
of the First Circuit’s framework for sealing judicial records,
insofar as the district court must proceed from the presumption
of an open litigation process and may only limit such access in
compelling circumstances. Accordingly, this court will apply the
Third Circuit’s test in evaluating plaintiff’s motion.
II. Analysis
The court begins by examining the first six factors of the
Megless test, which, if satisfied, favor anonymity. See id.
First is the extent to which the identity of the litigant
has been kept confidential. Plaintiff asserts that he has
avoided publicity in the matter and that Dartmouth’s
disciplinary process was itself confidential. Nothing in the
record suggests that plaintiff’s identity is publicly known.2
This factor supports plaintiff’s position.
The second factor is the basis upon which disclosure is
feared or seeks to be avoided, and the substantiality of that
basis. Here, plaintiff contends that public identification will
significantly harm his reputation, as well as future educational
2Plaintiff does state that individuals in his immediate social circle “learned about the allegations from Sally Smith,” doc. no. 22-2 at ¶ 6, but that his identity has not been more widely disseminated in the Dartmouth community or amongst the general public.
12
and career prospects. He also states that he may be subjected
to harassment if he is publicly identified.
Based on the evidence presented by plaintiff, the court is
persuaded that these potential harms are severe and reasonable.
Undoubtedly, “one's sexual practices are among the most intimate
parts of one's life,” and the public disclosure of such
information may subject one to embarrassment or ridicule. Doe
v. Blue Cross & Blue Shield of R.I., 794 F. Supp. 72, 74 (D.R.I.
1992) (discussing in context of transgender plaintiff). Still,
mere embarrassment does not generally suffice to permit the use
of a pseudonym. See, e.g., Doe v. Word of Life Fellowship,
Inc., No. 11-40077-TSH, 2011 WL 2968912, at *2 (D. Mass. July
18, 2011).
More significant in this case is plaintiff’s argument that
public disclosure will subject him to reputational damage and
will impair his future educational and career prospects,
regardless of the actual outcome of this action. Plaintiff
cites other campus sexual-assault cases to show that the mere
accusation that one has committed a sexual assault can subject
the accused to lasting reputational damage and harassment, even
where, as here, the accused is ultimately found not culpable of
sexual assault. See doc. no. 21 at 6-7 (discussing other
cases). Such a concern is only exacerbated in the Internet age,
13
which can provide additional channels for harassment and will
connect plaintiff’s name to Dartmouth’s findings and sanction
forever, whether or not he is successful in this litigation.
Cf. Francis, 631 F.3d at 1318 (noting that, absent anonymity,
plaintiff would be forever linked to certain pornographic
videos); Doe v. Cabrera, 307 F.R.D. 1, 7 (D.D.C. 2014) (in suit
alleging sexual assault against professional baseball player,
stating that “[h]aving the plaintiff's name in the public
domain, especially in the Internet age, could subject the
plaintiff to future unnecessary interrogation, criticism, or
psychological trauma”).
Thus, this is not a case where, far from damaging
plaintiff’s reputation, the litigation will afford plaintiff an
opportunity to “clear his name in the community.” Megless, 654
F.3d at 410. Plaintiff has a reasonable fear that, whatever the
outcome of the action, public identification will subject him to
severe reputational harm and harassment, and will defeat the
very purpose of this litigation.
Even more salient to the court is Sally Smith’s interest in
anonymity. Should plaintiff be publicly identified, Sally would
likely be identified as well, and Sally has a stronger case for
anonymity. Unlike a litigant, who in “using the courts must be
prepared to accept the public scrutiny that is an inherent part
14
of public trials,” Femedeer, 227 F.3d at 1246, Sally Smith is a
nonparty. Furthermore, Dartmouth has submitted a declaration
from Sally Smith, in which she states that plaintiff’s complaint
has already generated “hateful and threatening comments about
[her] on the internet,” causing her “extreme emotional distress
and trauma.” Doc. no. 17-2 at ¶ 13.
Given the underlying facts of this case, in conjunction
with the evidence presented by the parties, the court finds
reasonable plaintiff’s and Sally’s fears relating to public
identification. Accord Doe v. Colgate Univ., No. 5:15-cv-1069,
2016 WL 1448829, at *2 (N.D.N.Y. Apr. 12, 2016) (“[C]ases
stemming from investigations of sexual abuse on college and
university campuses have garnered significant media attention,
posing the risk of further reputational harm to both the
plaintiffs in these cases and their accusers.”); Doe v. Purdue
Univ., 321 F.R.D. 339, 342-43 (N.D. Ind. 2017). The second
factor weighs in plaintiff’s favor.
The third factor concerns whether there is a public
interest in maintaining the plaintiff’s anonymity. In other
words, “if this litigant is forced to reveal his or her name,
will other similarly situated litigants be deterred from
litigating claims that the public would like to have litigated?”
Megless, 654 F.3d at 410. Plaintiff does not develop an
15
argument on this factor, so the court considers it to be
neutral. Cf. McKee, 649 F.3d at 71 (noting that it is the party
seeking to keep documents sealed who must make a sufficient
showing). That being said, the court notes that there is
authority for the proposition that precluding pseudonymous
litigation in college disciplinary cases may have a chilling
effect on future plaintiffs who seek to challenge the adequacy
of the process. See Colgate Univ., 2016 WL 1448829, at *3.
The fourth factor is whether there is an atypically weak
public interest in knowing the litigant’s identities given the
purely legal nature of the issues presented or otherwise.
Megless, 654 F.3d at 409. Contrary to plaintiff’s argument, the
issues presented in this case are not purely legal. The dispute
is over how Dartmouth applied its policies in plaintiff’s case,
how it came to its determination of the underlying facts, and
whether the procedure was tainted by any bias. This factor does
not weigh in plaintiff’s favor.
The question for the fifth factor is whether “the litigant
[will] sacrifice a potentially valid claim simply to preserve
[his] anonymity.” Id. at 410. Because plaintiff avers that he
will not prosecute his claims if he must do so in his own name,
this factor weighs in plaintiff’s favor.
16
The sixth factor turns on whether the litigant is seeking
to use a pseudonym for nefarious reasons. There is no such
allegation in this case, so this factor supports plaintiff’s
request.
The court now examines the remaining three factors
disfavoring anonymity. See id. at 409. The seventh factor
amounts to an acknowledgement that there is a “universal
interest in favor of open judicial proceedings,” which weighs in
favoring of disclosing plaintiff’s identity. Id. at 411.
The eighth factor concerns whether there is a stronger
public interest in knowing the litigant’s identity, in light of
the subject matter of the litigation, the status of the litigant
as a public figure, or any other reason. Id. at 409. None of
the relevant actors in this litigation is a public figure. This
litigation concerns not public officials or governmental
entities, but a disciplinary process at a private college
relating to an alleged assault of one college student by
another. In addition, the public’s interest in the subject
matter of, or any proceedings relating to, this litigation, will
not be impeded merely because plaintiff’s identity is kept
private. See Purdue Univ., 321 F.R.D. at 343 (“The actual
identities of Plaintiff and his accuser are of minimal value to
the public.”). This factor does not favor disclosure.
17
The ninth and final factor is whether any opposition to the
use of a pseudonym is illegitimately motivated. There is no
such opposition, so this factor favors plaintiff.
Considering all of these factors, the court concludes that
plaintiff may proceed under a pseudonym. The above-described
considerations—in particular, the reasonable concern of both
plaintiff and Sally Smith that they will be subjected to
harassment and reputational damage absent anonymity, regardless
of the outcome of this litigation—outweigh the public interest
favoring public identification and open proceedings. Accord id.
at 342 (collecting cases).
There is one caveat, however. As plaintiff acknowledges,
the calculus regarding the use of a pseudonym may change
depending on the stage of the litigation. See, e.g., Does I
thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th
Cir. 2000) (court should evaluate use of pseudonym “at each
stage of the proceedings”); Cabrera, 307 F.R.D. at 10 (prejudice
from use of pseudonym may increase during trial stage). At this
point, therefore, the court’s order is limited to pretrial
proceedings. Should the case proceed to trial, the court may
re-evaluate the use of a pseudonym.
18
CONCLUSION
For the reasons stated herein, plaintiff’s motion to
proceed under a pseudonym (doc. no. 2) is granted. To
effectuate that result, the court issues the following
protective order:
(a) The parties shall use the pseudonyms “John Doe”
for the plaintiff and “Sally Smith” for the female
complainant in the underlying disciplinary
proceeding; and
(b) The parties shall redact the true names of John
Doe and Sally Smith from all documents in this
case and refrain from revealing their true
identities.
This protective order shall remain in effect until such time as
a further order is issued.
SO ORDERED.
Landya McCafferty
United States District Judge
May 2, 2018
cc: Counsel of Record
19