Legal Commentary

The Washington Post reports on a civil suit against Girls Gone Wild founder Joe Francis, one of many filed against him.  In this suit, four women who were allegedly between the ages of 13 and 17 at the time that Francis's company filmed them wish to proceed using pseudonyms. The Eleventh Circuit just held oral argument in the case.

In a brand new paper I advocate a novel approach to deciding when litigants should be permitted to sue using a John Doe or Jane Doe pseudonym.  I argue that many of the factors most relevant to determining whether pseudonymous litigation is appropriate cannot be resolved at a preliminary stage in the proceedings.  Rather, courts will have much better information about whether a pseudonym is appropriate after a final judgment is issued and any pertinent appeals are resolved.  In cases involving sensitive privacy matters, courts should provisionally permit parties to litigate pseudonymously but unmask the losing party at the conclusion of the proceedings.  Alternatively, courts might apply a more subjective balancing test at the conclusion of proceedings to determine whether the pseudonymous plaintiff's complaints would have been dealt with more productively via pseudonymous self-help.  

Part of intuition behind the paper is that in the Internet era parties have a variety of channels for airing a grievance anonymously or pseudonymously.  In a low-stakes dispute involving a consumer and a business, or a landlord and a tenant, resort to a Better Business Bureay grievance or even an Internet gripe site may provide a litigant with as much value as litigation at a small fraction of the cost.  But in other disputes, the magnitude of the harm alleged is very high, the parties have disproportionate levels of sophistication in using channels of communication or dispate access to them, and legal issues of first impression may be implicated by the allegations. Pseudonymous litigation is appropriate in these settings.   If the allegations in the suit against Francis have merit, then the four plaintiffs would have very strong arguments for proceeding pseudonymously. Readers interested in learning more about how such a "wait and see" approach to Jane Doe litigation might work can download my essay addressing these questions, Pseudonymous Litigation (University of Chicago Law Review 2010).  The essay discusses Doe v Smith, an earlier Seventh Circuit case that raised similar issues.