Our legal system generally requires parties to name themselves; pseudonymous cases—Doe v. Jones—are allowed only in exceptional categories of cases. ¹ Open footnote #1 1 Footnote #1 content: See infra Part I. close Some of those cases have been litigated as pseudonymous on both sides (i.e., as Doe v. Roe or the like). ² Open footnote #2 2 Footnote #2 content: For more on dealing with the proliferation of confusing Doe v. Roe cases, see infra Part IX. close But even when the plaintiff’s identity is kept secret from the public (though not from the defendant ³ Open footnote #3 3 Footnote #3 content: See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 HASTINGS L.J. 1353, 1362 n.25 (2022). Some cases involve named plaintiffs suing John Doe defendants because they do not yet know the defendants’ identities. But the goal there is usually to use discovery (for instance, subpoenas to Internet Service Providers) to identify the defendants, and then to name them. close ), the defendant’s is often publicized.

I will argue below that, in at least some classes of cases, this one-sided pseudonymity is unfair to the defendant—especially where the plaintiff alleges sexual assault by the defendant.

To begin with, when plaintiffs are allowed to proceed pseudonymously, it is often out of concern that being identified will stigmatize them. But facing allegations of sexual assault as a defendant is at least as stigmatizing. ⁴ Open footnote #4 4 Footnote #4 content: See infra Part V.A. close

Relatedly, one reason for plaintiff pseudonymity is that some plaintiffs may otherwise be deterred from filing even meritorious lawsuits, for fear that being publicly identified will stigmatize them. ⁵ Open footnote #5 5 Footnote #5 content: See infra Part V.C. close But defendants may be equally deterred from raising even meritorious defenses (such as “I didn’t do it” or “the sexual behavior was consensual”), for fear that being publicly identified will stigmatize them. In this respect, the case for pseudonymity for defendants in sexual assault cases stands on roughly the same footing as that for pseudonymity for plaintiffs in those cases.

One-sided pseudonymity can also be unfair to the named defendant because of how it affects the litigation process. One-sided pseudonymity can change the settlement value of a case. ⁶ Open footnote #6 6 Footnote #6 content: See infra Part III.E. close Pseudonymity granted to party witnesses may diminish incentives to tell the whole truth. ⁷ Open footnote #7 7 Footnote #7 content: See infra Part III.B. close Party pseudonymity may also prevent other witnesses from coming forward. ⁸ Open footnote #8 8 Footnote #8 content: See infra Part III.C. close And allowing one party to proceed pseudonymously may signal to the jury that the other party is dangerous, suggesting culpability. ⁹ Open footnote #9 9 Footnote #9 content: See infra Part III.F. close To quote Fourth Circuit Judge J. Harvie Wilkinson’s concurrence in Doe v. Sidar:

Allowing one party to proceed anonymously increases the potential for abusive suits that use the threat of reputational damage to exact revenge or to extract settlements from innocent parties. Having one party incognito but not the other can tilt the scales of justice in the direction of guilt by anonymous accusation, a prospect which would be just as abhorrent to civil litigation as it is to our criminal justice system. . . . Pseudonymity may enhance the incentives for well-founded complaints to be filed, but it may also serve as a cover for actions that tarnish the innocent. ¹⁰ Open footnote #10 10 Footnote #10 content: Doe v. Sidar, 93 F.4th 241, 250 (4th Cir. 2024) (Wilkinson, J., concurring). The phrase “onesided pseudonymity” stems from this case. See id. (Wilkinson, J., concurring) (citing Brief of Amicus Curiae Prof. Eugene Volokh in Support of Neither Party, id., 2023 WL 4447864). One court has labeled this “unilateral anonymity” and “asymmetric anonymity,” Doe v. Liberty Univ., Inc., No. 6:21-CV-00059, 2022 WL 4781727, at *4–5 (W.D. Va. Sept. 30, 2022), but those are rarer terms; and “unilateral anonymity” is ambiguous, because it sometimes refers just to a plaintiff’s decision to file under a pseudonym without court approval. See, e.g., Patton v. Entercom Kan. City, LLC, No. CIV.A. 13-2186-KHV, 2013 WL 3524157, at *1 (D. Kan. July 11, 2013), and cases that cite this passage; Doe # 1 v. Laurel Sch. Dist., No. CIV.A. 09C-06020 WLW, 2011 WL 7063231, at *1 (Del. Super. Ct. Dec. 19, 2011). close

This is why many courts have rejected one-sided pseudonymity, ¹¹ Open footnote #11 11 Footnote #11 content: See infra Part II. close and some have accepted two-sided pseudonymity. ¹² Open footnote #12 12 Footnote #12 content: See infra Part IV. close

These factors, of course, are present to different degrees in different kinds of cases. For instance, say a plaintiff alleging sexual assault (or a wrongful university finding of sexual assault) is suing a university, claiming negligent supervision or a biased investigation. There is still the risk of damage to the institutional defendant’s reputation. But that damage is far less—and the unfairness stemming from one-sided pseudonymity is far less—than if the lawsuit involves allegations of, say, sexual assault by a named individual defendant. ¹³ Open footnote #13 13 Footnote #13 content: See infra Part VI.A. close The same is true in many lawsuits against the government. ¹⁴ Open footnote #14 14 Footnote #14 content: See infra Part VI.B. close

To be sure, one possible solution to the problem—mutual pseudonymity— interferes with the public’s right of access to court proceedings even more than one-sided pseudonymity
does. ¹⁵ Open footnote #15 15 Footnote #15 content: See infra Part VII. close But, on balance, the unfairness of one-sided pseudonymity should generally cut against the practice of allowing it, whether the optimal solution for a case would be mutual pseudonymity or none at all.

If this analysis is right, then a plaintiff who seeks pseudonymity (at least in the cases discussed above, where one-sided pseudonymity risks serious unfairness) must offer pseudonymity: The plaintiff should file with pseudonyms for both parties and move for leave for both parties to proceed pseudonymously. The judge should then decide whether to allow pseudonymity for both parties, for only one, or for neither. But, if the plaintiff seeks one-sided pseudonymity, despite publicly naming the defendant in the caption, and the judge concludes that one-sided pseudonymity is improper, then the plaintiff’s motion for leave to proceed pseudonymously should be denied. ¹⁶ Open footnote #16 16 Footnote #16 content: This article deliberately focuses on one-sided pseudonymity favoring plaintiff. One-sided pseudonymity favoring defendant may raise somewhat different concerns. First, the plaintiff chooses to go to court; defendants are generally dragged into court against their will, and may thus in some situations have a stronger claim for pseudonymity (though even for defendants the norm is litigating under their own names). Second, in some kinds of cases, such as defamation cases, there may be special reasons to not allow plaintiffs to proceed pseudonymously, whether or not the plaintiffs are willing to accept defendants’ doing so. See Doe v. Doe, 85 F.4th 206, 217–18 (4th Cir. 2023) (rejecting pseudonymity for a defamation plaintiff, because “[i]t is apparent that Appellant wants to have his cake and eat it too. Appellant wants the option to hide behind a shield of anonymity in the event he is unsuccessful in proving his claim, but he would surely identify himself if he were to prove his claims.”); DL v. JS, No. 1:23-CV-1122-RP, 2023 WL 8102409, at *3 (W.D. Tex. Nov. 21, 2023) (likewise); Doe v. Roe, No. 23-CV-01149-NYW-KLM, 2023 WL 4562543, at *3 (D. Colo. July 17, 2023) (likewise); Doe v. Roe, 247 N.E.3d 1143 (Ohio Ct. App.), appeal not allowed, 175 Ohio St. 3d 1531 (2024). close

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