Doe v. BrunerDoe v. Bruner
Brandon Bruner, 6443 Hamilton Avenue, Cincinnati, Ohio 45224, defendant-appellee, pro se
O P I N I O N
POWELL, P.J.
{¶ 1} Plaintiff-appellant, John Doe, appeals a decision of the Clinton County Court of Common Pleas denying his motion to proceed under a pseudonym.1 For the reasons stated below, we affirm the trial court‘s decision.
{¶ 2} During the months of September and October 2009, Doe was allegedly sexually assaulted and molested by defendant-appellee, Brandon Bruner. Both parties were
{¶ 3} THE TRIAL COURT ERRED IN REQUIRING DOE TO PROCEED PUBLICLY IN HIS TRUE NAME, WHEN PUBLIC POLICY AND COMMON LAW SUPPORT THE RIGHT OF A SEXUAL ABUSE VICTIM TO PROCEED UNDER A PSEUDONYM.
{¶ 4} In his sole assignment of error, Doe argues that the trial court erred when it ordered him to proceed under his real name. Specifically, he claims that a sexual abuse victim‘s right to proceed under a pseudonym is supported by Ohio common law and public policy. Although the practice of proceeding under a pseudonym is well established in Ohio, neither the Ohio Supreme Court nor any Ohio appellate court has yet addressed a challenge to this practice. See, e.g., Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186 (Noting the plaintiff‘s name has been changed); Doe v. George, 12th Dist. No. CA2011-03-022, 2011-Ohio-6795 (Allowing but not commenting on use of pseudonyms for plaintiffs); Doe v. Trumbull Cty. Children Servs. Bd., 11th Dist. No. 2004-T-0034, 2005-Ohio-2260 (Mother‘s name changed during malicious prosecution action against child services agency). However, the federal courts have developed a body of law regarding this issue. As discussed below, we find persuasive and chose to follow the Sixth Circuit‘s approach.
{¶ 5} Both the Ohio and Federal Rules of Civil Procedure require that every complaint list the names and addresses of all parties involved in the suit.
{¶ 6} Although there is a strong policy towards open judicial proceedings, parties have been permitted to proceed under a pseudonym in exceptional circumstances. All of the federal circuits weigh the anonymous party‘s privacy interest against the opposing party‘s interest in disclosure. In balancing these interests, the second, seventh, and ninth circuits consider both the public interest in disclosure and any prejudice to the opposing party. E.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2nd Cir.2008); Doe v. City of Chicago, 360 F.3d 667, 668 (7th Cir.2004); Doe I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000). Many of the remaining circuits, including the sixth circuit, only weigh the plaintiff‘s privacy interest against the presumption of open judicial proceedings. E.g., Doe v. Porter, 370 F.3d 558, 560 (6th Cir.2004); Doe v. Megless, 654 F.3d 404, 408 (3rd Cir.2011); Plaintiff B v. Francis, 631 F.3d 1310, 1315-1316 (11th Cir.2011); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998). We chose to follow the latter approach and hold that a party can proceed under a pseudonym where a “plaintiff‘s privacy interest substantially outweighs the presumption of open judicial proceedings.” Porter at 560.
{¶ 8} Having determined to follow the sixth circuit‘s approach, we now apply this test to the facts of this case. We begin with the principle that a trial court‘s ruling regarding a party‘s request to proceed pseudonymously will not be overturned absent an abuse of discretion. E.g., Porter at 560; Megless at 406; Frank at 323. See Compston v. Automanage, Inc., 79 Ohio App.3d 359, 367 (12th Dist.1992) (Generally, a trial court‘s pretrial decisions are reviewed for an abuse of discretion). An abuse of discretion is more than mere error of law or of judgment; it implies an attitude that is unreasonable, unconscionable, or arbitrary. State v. Adkins, 144 Ohio App.3d 633, 644 (12th Dist.2001).
{¶ 9} As mentioned above, the trial court denied Doe‘s request to proceed under a pseudonym. We agree with the trial court and find that Doe‘s privacy interests do not substantially outweigh the presumption of open judicial proceedings. Doe concedes and we agree that three of the four factors do not apply. Doe is not a child, the litigation will not compel him to disclose an intention to violate the law, and he is not challenging governmental activity. In fact, in cases where plaintiffs are challenging the actions of a private individual, courts have reasoned that this weighs towards disclosure because of the reputation and credibility concerns that a lawsuit implies for an individual defendant. See Indiana Black Expo, 923 F.Supp. 137, 141 (“Basic fairness requires that where a plaintiff makes such accusations publicly, he should stand behind those accusations and the defendants should be able to defend themselves“); Doe v. Shakur, 164 F.R.D. 359, 361 (S.D. New York 1996). Moreover, Doe has not alleged he has suffered threats of retaliation for filing this suit.
{¶ 10} Doe argues in his brief that his identity should be kept confidential because he will be forced to disclose information that will be of the “utmost intimacy.” Although, it is likely that disclosing facts surrounding the sexual assault will include information that falls in this category, this factor alone is not enough to allow Doe to proceed pseudonymously. In addressing similar arguments, a federal court prohibited a plaintiff from proceeding under a pseudonym despite the fact that the case involved allegations of sexual abuse. Wolowitz, E.D. Michigan No. 01-73907, 2002 WL 130614. The court reasoned that even though the sexual abuse charges likely included information of the “utmost privacy,” this single factor was not so persuasive that it substantially outweighed the presumption of open judicial proceedings. Id. at *2. Other courts have applied similar reasoning to claims regarding intimate disclosure. A New York court found that a sexual assault victim‘s privacy interests
{¶ 11} Thus, the trial court did not abuse its discretion in denying Doe‘s request to proceed under a pseudonym. Doe‘s assignment of error is overruled.
{¶ 12} Judgment affirmed.
YOUNG, J., concurs.
RINGLAND, J., concurs separately.
RINGLAND, J., concurring separately.
{¶ 13} I concur with the judgment of the majority. However, I write separately because I do not entirely agree with the rationale the majority propounded in affirming the trial court‘s decision.
{¶ 14} Initially, a review of the record indicates that following a hearing on the matter the magistrate denied appellant‘s request to use a pseudonym to bring his suit based on
{¶ 15} Furthermore, a review of the record also indicates that the trial court modified the magistrate‘s order denying appellant‘s request without holding a hearing by finding “[appellant] had no issue identifying the name of the Defendant in Court pleadings. To now claim [appellant‘s] interest in keeping his own identity secret is superior to Defendant‘s
{¶ 16} Nevertheless, I concur in judgment because no transcript of the hearing before the magistrate was filed in this case. Without a transcript, this court is unable to determine what evidence was presented regarding appellant‘s privacy interests against those favoring disclosure. In addition, without a transcript, this court is unable to determine what evidence was presented to the magistrate explaining the reasoning process behind the trial court‘s vague conclusion. As this court has consistently stated, without a transcript we have no choice but to presume the regularity of the trial court‘s proceedings. See Cox v. Zimmerman, 12th Dist. No. CA2011-03-022, 2012-Ohio-226, ¶ 19, citing Geico Indemn. Co. v. Alausud, 12th Dist. No. CA2010-11-315, 2011-Ohio-2599, ¶ 16. I would affirm the trial court‘s decision on this basis.
{¶ 17} That said, as noted previously, the Ohio Civil Rules and Ohio case law provide virtually no guidance on the proper use of pseudonyms. In turn, had a transcript been provided in this case, I agree with the majority that we would then turn our attention to federal case law in order to determine this issue. Unfortunately, the federal courts are not uniform in handling the use pseudonyms in pleadings. However, after reviewing the various tests
{¶ 18} In looking at the Sixth Circuit‘s analysis, I find that the enumerated factors are not inclusive, but are without limitation. I also find that it is not the quantity of the factors presented, but the quality of the factors that should be weighed. For example, considerations of whether prosecution of a suit would compel the plaintiff to disclose information of the utmost intimacy may be in and of itself more significant than whether threats of retaliation have not been made.
{¶ 19} Until the Ohio Supreme Court sets down a protocol or guidelines for the courts of this state to use when dealing with a request to proceed under a pseudonym, I would suggest the following: (1) the trial court hold a hearing allowing all evidence to be presented to assist it in weighing the plaintiff‘s privacy interests versus the presumption of open judicial proceedings; (2) that the hearing be recorded, or if necessary, transcribed for appellate review; (3) that the court memorialize its findings either orally or by written decision; (4) in reaching its decision, the court consider: (a) the extent to which the identity of the litigant has previously been kept confidential; (b) the reason upon which disclosure is feared or sought to be avoided; (c) the chilling effect, if any, of disclosure and being publically identified; (d) the strength or need of the public to know the litigant‘s identity; (e) whether the parties seeking pseudonym has a legitimate or illegitimate ulterior motive; (f) whether either party is a public figure creating a strong public interest in knowing the identity of the litigant; and (g) whether
{¶ 20} For the reasons outlined above, I concur in judgment only.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.