Oral Argument Preview: Filing Suit Under a Pseudonym in a Sex Abuse Case. John Doe v. Brandon Bruner.

Update: On March 19, 2013 this appeal was dismissed as improvidently accepted.

Read the analysis of the oral argument here.

On February 27, 2013, the Supreme Court of Ohio will hear oral argument in the case of John Doe v. Brandon Bruner, 2012-0556. The issue is whether and when a litigant may use a pseudonym in civil litigation.


Plaintiff John Doe filed this lawsuit alleging that Brandon Bruner, a fellow student at Wilmington College, sexually assaulted and molested Doe on several occasions on campus. Before the magistrate, Doe used a pseudonym to assert claims of assault and battery, and intentional infliction of emotional distress. While Bruner did not challenge Doe’s use of a pseudonym, the magistrate sua sponte requested briefing on this issue, and denied Doe’s request to proceed under a pseudonym.

The trial court affirmed the magistrate’s order requiring Doe to amend the title of the action to include his true name.

Court of Appeals Decision

The Twelfth District Court of Appeals affirmed, finding no abuse of discretion in the trial court’s ruling. One judge concurred in judgment only.  The court observed that little to no Ohio case law provided guidance on the proper use of pseudonyms. Although the practice of proceeding under a pseudonym is well-established in Ohio, neither the Ohio Supreme court nor any appellate court has previously addressed a challenge to this practice. However, the federal courts have developed a body of law on this matter. The Twelfth District chose to rely on the approach of the U.S. Court of Appeals for the Sixth Circuit (which includes Ohio, and in fact, sits in Cincinnati.), which has held that a party can proceed under a pseudonym where a plaintiff’s privacy interest substantially outweighs the presumption of open judicial proceedings, noting that a trial court should carefully review all the circumstances of a given case in balancing these concerns. Other federal circuits consider both the public interest in disclosure and any prejudice to the opposing party.

The factors deemed significant by the Sixth Circuit include: (1) whether the plaintiff is suing to challenge governmental activity; (2) whether prosecution of the suit will compel plaintiff to disclose information of the utmost intimacy; (3) whether litigation compels the plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiff is a child. Only the second factor is relevant in this case. The Twelfth District held that factor alone was not enough to allow Doe to proceed anonymously.

The concurring judge agreed with the majority decision to adopt the Sixth Circuit test to weigh the plaintiff’s privacy interest against the presumption of open judicial proceedings. Noting that the federal factors are not exclusive, he suggested several factors of his own as guidelines in this area, and argued that the quality of the factors, not the quantity, should be weighed.

At the Supreme Court

Because Bruner, proceeding pro se, did not file a merit brief in the supreme court case, he has waived the right to be heard at oral argument. Therefore only John Doe will be heard at argument.

John Doe’s Argument

Doe claims that a sexual abuse victim’s right to proceed under a pseudonym is supported by both law and public policy. He suggests that the lower courts did not recognize the impact of requiring him to reveal matters of utmost humiliating intimacy without the protection of a pseudonym. He warns that an approach that discourages the use of pseudonyms will have a chilling effect on an already-incapacitated body of victims in seeking civil justice.

Rather than adopt the Sixth Circuit factors set out in the appellate court’s majority opinion, Doe suggests that the factors set forth in the concurring opinion are better suited to the times, and urges the Supreme Court to consider the following circumstances: a) the extent to which the identify of the litigant has previously been kept confidential; b) the reason disclosure is feared; c) the chilling effect of disclosure; d) the need of the public to know the litigant’s identity; e) whether the party seeking anonymity has an ulterior motive; f) whether either party is a public figure, creating a public interest in knowing the identity. Furthermore, Doe asks that the Court adopt the concurring opinion’s approach in weighing the quality, not quantity, of the factors, with its implicit recognition that any one factor can be strong enough to make the determination solely on that basis.

John Doe’s Proposed Propositions of Law

Proposition of Law No. 1

Ohio courts recognize an exception, in limited matters of sensitive and highly personal nature, to the requirement of Civ. R. 10(A) that a plaintiff must proceed in civil litigation under his or her own name.

Proposition of Law No. 2

There is substantial public interest in ensuring that plaintiffs who would suffer extreme distress or danger by disclosing their names are protected throughout the judicial process.

Proposition of Law No. 3

A plaintiff may proceed under a pseudonym where the plaintiff’s privacy interest outweighs the presumption of open judicial proceedings.

Proposition of Law No. 4

In determining whether a plaintiff’s privacy interest outweighs the presumption of open judicial proceedings, a court should consider the following non-exhaustive list of factors: a) the extent to which the identify 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 of disclosure; d) the need of the public to know the litigant’s identity; e) whether the party seeking anonymity has an ulterior motive; f) whether either party is a public figure creating a strong public interest in knowing the identity of the litigant.

Proposition of Law No. 5

The court shall weight the quality rather than the quantity of the factors.

Proposition of Law No. 6

Any one factor, standing alone, may justify use of a pseudonym if the factor is sufficiently compelling.

Amicus Brief in Support of John Doe

Amici arguing in support of the permissibility of pseudonyms in such cases include the National Center for Victims of Crime, National Crime Victim Law Institute, The Justice League of Ohio, The Ohio Coalition for Battered Women, among others. They filed a joint merit brief.

The Amici argue that denying victims of crimes of a personal or intimate nature (such as rape and child sexual abuse) the right to use pseudonyms in proceedings impedes the interests of justice, as well as infringes on the victims’ constitutional right to privacy; the psychological damage caused by crimes of such a nature makes it difficult for victims to acknowledge the crime itself, much less take steps to seek relief in court. While acknowledging the common law presumption in favor of open courtrooms, the Amici urge the Court to find that such a presumption may be overcome in the interest of protecting certain fundamental privacy interests.

 Amici’s Proposed Proposition of Law

Permitting a victim of crime to proceed pseudonymously removes a barrier to civil justice.

Student Contributor: Elizabeth Chesnut

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