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Wednesday, October 27, 2010

Should the Girls Gone Wild Plaintiffs Be Able to Sue as Jane Does? A New Approach to Pseudonymity

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.

Posted by Lior Strahilevitz on October 27, 2010 at 11:15 AM | Permalink

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Comments

This is an interesting proposal, Lior. I'm not sure I'm completely on board that an Internet gripe site necessarily provides a potential plaintiff with as much value as litigation, unless the only desire is to vent.

It seems to me that Internet gripe sites are most effective when there are several participants who raise the same concerns about an individual or business. I may not change my behavior if one person tells a terrible tale about her experience at a local restaurant, but if several people post that the food is often cold and the service often poor, I get a consistent signal that I can use. To the extent the potential plaintiff is "crying alone in the wilderness" on the relevant blog, she is unlikely to engender broad social sanctions against a business or individual, and without a binding mechanism, she is unlikely to get any specific relief.

That said, I think your paper makes an important contribution by encouraging courts to reconsider how they handle the claims of plaintiffs who may not litigate those claims if they are not allowed to proceed with anonymity.

Posted by: Jake Linford | Oct 28, 2010 4:28:48 PM

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