Volokh conspiracy lawyer scrgruppen
from Do v. Federal Republic of Germanydecided today by Judge Gary Stein (SDNY):
The plaintiff claims to be the person who leaked the famous set of offshore financial records known as the “Panama Papers.” Use the alias “John Doe” and continue For professionalsthe plaintiff brought an action for breach of contract under the Foreign Sovereign Immunities Act against the Federal Republic of Germany … and the Bundeskriminalamt of Germany … on July 24, 2023. The plaintiff alleges that the defendants failed to pay amounts due under the contract under which the defendants purchased access to the papers Panama for use in identifying tax fraud and other financial crimes.
In a declaration supporting his request to be allowed to proceed anonymously, the plaintiff stated that to protect his safety, he exclusively used the pseudonym “John Doe” in connection with the Panama Papers. He asserts his belief that “if my identity became known, my life would be in immediate danger” and “I would likely be killed.” The plaintiff refers to a 2017 docudrama video shown in Russia which he interprets as “an explicit and credible death threat against me by the government of the Russian Federation,” and claims that he faces similar threats from the governments of China and Saudi Arabia, and international drug organizations. Human trafficking organizations, and ultra-high-net-worth individuals whose activities were exposed through the Panama Papers. Plaintiff’s motion argues that under the multifactor test set forth in Sealed plaintiff against sealed defendant (2d Cir. 2008), in assessing the motions to proceed under an assumed name, these serious threats to the physical safety of the plaintiff as well as his family, friends, colleagues, and other individuals outweigh the grant of the relief sought….
Plaintiff’s presentation was sufficiently compelling to persuade Chief Justice Boasberg, applying the D.C. Circuit’s analogous test, to allow Plaintiff to proceed under a pseudonym in the DDC action [a nearly identical case the court filed in D.C. and then dismissed -EV]Provided that he reveals his sealed identity to the court [see here for that opinion -EV]. Without indicating any disagreement with Judge Boasberg’s considered analysis or conclusion, this court finds that it would be inappropriate to rule on plaintiff’s motion in this action at this time, for several reasons.
First,…the defendants have not yet been notified and the court rejected the plaintiff’s request to implement the service through alternative means. Unless the plaintiff serves the defendants through the prescribed methods set forth in 28 USC § 1608(a), this action will not proceed. It would be premature to decide whether the claimant can proceed anonymously when it is still unclear whether the action will proceed at all.
Second, the court believes that it must resolve the plaintiff’s request with the benefit of the defendants’ views rather than based on from one side Basis. under The sealed plaintiff In the analysis, the interests of the defendant are an important factor to take into account. Defendants are in the best position to express their interests in this matter; However, since the defendants have not yet appeared, the court lacks the ability to compel them to respond at this stage.
{Under the circumstances here, Defendants may choose to support Plaintiff’s request to proceed anonymously, given Defendants’ institutional interest in encouraging whistleblowers to come forward and Plaintiff’s claims that BKA promised to ensure his safety and protect his confidentiality. Or maybe not. Regardless, the position of the defendants should be taken into account.}
Third, it is unclear what the plaintiff’s position in this court is on the issue that ultimately hampered his efforts to proceed pseudonymously in the DDC suit: his willingness to submit his sealed identity to the court….
If the plaintiff abandoned the DDC claim and filed the immediate suit in the hope that he could somehow avoid having to disclose his identity to this court, he was mistaken. Also in this area, parties acting anonymously must disclose their names (and other identifying information) under seal to the court….
Second Circuit [has] She explained several “vital purposes.”[s]“This requirement is apparently served by pedestrians.” The requirement that a party or his attorney identify himself to the court by his signature “guarantees[s] That the attorney or readily identifiable party assume responsibility for each paper, thus enabling the court to exercise its authority to sanction attorneys and parties who file papers containing misleading or frivolous assertions. The court to fulfill its legal obligations under 28 USC §§ 144 and 455 to investigate conflicts of interest. Moreover, “without knowing” the true identity [the] Parties at the beginning of the case” The court may not give a precluding effect to the rulings in cases between the same parties.
Thus, governing rules and case law make clear that parties who wish to utilize this forum to seek injunctive relief must submit identifying information to the court, even if they have been granted permission to proceed under an assumed name. Accordingly, if the plaintiff reiterates his or her request to proceed anonymously in a timely manner, the court, if inclined to grant such a request, will nonetheless require the plaintiff to disclose his or her identity information to the court under seal in some manner. Unless the plaintiff expresses a willingness to do so, no analysis is necessary The sealed plaintiff factors and determine whether the plaintiff has demonstrated the right to proceed anonymously.
The court takes into account plaintiff’s concerns that the risks to his physical safety, and the corresponding need to protect his identity, are unusually acute in this case. These concerns may support the formulation of a sealing procedure that protects plaintiff confidentiality as much as possible (for example, by allowing sealed documents to be filed and maintained in paper rather than electronic form). However, it does not justify completely dispensing with the “established requirement” that court files reveal the identity of the applicant.
