Volokh conspiracy lawyer scrgruppen
From a memorandum supporting a motion to permanently close the entire case Doe v. Crawford (Miss Lady.):
Adopting the alias “Jane Doe,” Plaintiff brought this case against Defendant Crawford pursuant to 15 USC § 6851. It alleges that Crawford engaged in “revenge porn” by transmitting an intimate sexual photograph of Doe to another man – Doe’s current romantic partner – With the intention of embarrassing the doe. In describing her relationship with Crawford, Doe only stated that they were in a “romantic relationship.” In fact, Doe’s relationship with Crawford was more than just a “romantic” one. …
The court must seal the record of this case because Crawford’s defense necessarily requires him to establish Doe’s identity and her relationship to Crawford, as well as reveal the intimate details of their relationship…. To defend himself, Crawford must (1) establish Doe’s identity and her relationship to Crawford, and (2) disclose the intimate details of that relationship in all substantive pleadings, including exhibits, before the court…
Other action would not be sufficient because 15 USC § 6851 allows Doe to remain anonymous, yet Crawford must necessarily disclose Doe’s identity to defend himself; Therefore, closing the entire case is the only option that allows Doe to file a lawsuit anonymously And Crawford is allowed to defend himself….
The legal basis for Doe’s claim is 15 USC § 6851(b)(1)(A), which states:
Except as provided in paragraph (4), an individual whose intimate visual image is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the individual’s consent, where Such disclosure by any person who becomes aware of, or recklessly ignores if the individual did not consent to such disclosure, may bring a civil action against such person in an appropriate district court of the United States to obtain relief as provided in paragraph (3).
By design, claims brought under this law relate to intimate, personal and private evidence. Furthermore, because of the sensitivity of the topic, Section 6851 allows plaintiffs to use a pseudonym to protect their privacy. The use of a pseudonym is subject to the discretion of the court and its judicial authority. Here, Do chose to use a pseudonym, expressing her desire to remain anonymous.
However, Doe’s alias and her allegations against Crawford work together to distort the relationship between Doe and Crawford. Doe’s identity and actual relationship with Crawford are material elements of Crawford’s defense. In other words, Crawford must reveal Doe’s identity and her relationship to Crawford while revealing other intimate and sensitive details to defend himself.
This is a new issue. Section 6851 is a new law that took effect in October 2022, and the undersigned attorney has found no case in the Fifth Circuit or any other circuit that addresses court record sealing for such a case.
“In determining whether to seal a portion of the judicial record, the court must balance the public’s right to access filings against interests that prefer nondisclosure.” “Notwithstanding the public’s general right to inspect and copy the public record, a court may order documents sealed when a party’s interest in sealing them outweighs the public’s interest in open access to judicial records.”
In this case, the public’s right to access the files in this case does not outweigh Crawford’s right to defend himself against Doe’s claim. Otherwise, Crawford will not be able to present his defense. Therefore, to resolve the tension between Doe’s anonymity under Section 6851(b)(3)(B) and Crawford’s right to defend himself, the court must seal the entire record…permanently.
Here’s my thinking: I appreciate that when a defendant necessarily explains his or her relationship to the plaintiff (for example, if he is her ex-husband, just to give one possible example), that may ultimately make the plaintiff’s identity clear to those who know the defendant. And 15 USC § 6851(b)(3)(B) states: “[i]In ordering relief…, the court may grant injunctive relief to preserve the confidentiality of a plaintiff who uses a pseudonym.”
But I do not think that this concern for privacy is sufficient to justify completely secret judicial processes, just as a concern for the privacy of rape victims, for example (or even child rape victims) does not justify complete secrecy in litigation (even when identity can be inferred from the identity of the defendant). . As he put it Fifth CircuitIt is the federal court of appeals that oversees the federal courts in Mississippi.
“Judicial records belong to the American people, and they are public documents, not private.” And “[t]“The public’s right to access judicial records is an essential element of the rule of law.” “The public has an interest in judicial proceedings that are transparent and independent of the interests of the parties.” This right “works to enhance the credibility of the judicial process.” , to reduce judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its integrity.” Accordingly, we strongly discourage the sealing of information placed in the judicial record.
And to quote Another federal appeals court,
It is desirable that a trial be conducted [civil] Cases should be conducted under the eyes of the public, … not because the controversies between one citizen and another are of public importance, but because it is one of the most important moments that those who dispense justice should always act under a sense of public responsibility, and that every citizen should be able to To be satisfied with his own eyes regarding the manner in which public duty is performed.
More broadly, the plaintiff chose to name a defendant in her lawsuit; She could have sought to sue him under a false name, but she did not. (The alias is also Forbidden suspicion In the civil justice system, but it is sometimes allowed in part because it is a less restrictive alternative to full sealing.) As a result, if her identity can be inferred by people who know the defendant, this flows from her litigation decision.
I don’t think federal law would prevent Crawford from saying what he needs to say about the relationship to defend himself. (If there are some questions about that, or some need to redact information about the relationship from all the filings, Crawford could seek a court decision clarifying that, by moving to submit the information in the open record.) I don’t think federal law allows By completely closing the case in this type of situation.
