[Eugene Volokh] Alleged Rape Victim Can't Litigate Against Sean Combs (P. Diddy) Pseudonymously …

[though she had been temporarily allowed to do so at first.]

From yesterday's decision in Doe v. Combs by Judge Lewis Liman (S.D.N.Y.) (for more on the split among the Doe v. Combs judges on this, see this post; for more on the split among federal judges generally on pseudonymity in lawsuits alleging sexual assault, see PDF pp. 78-85 of this article):

Plaintiff alleges that nearly 30 years ago, in or around June 1995, she was raped by Combs at a party at Elks Plaza in New York City…. Federal Rule of Civil Procedure 10(a) requires that the title of a complaint name all the parties to a litigation. This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." "[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." "The people have a right to know who is using their courts." … The presumption is that a plaintiff will disclose her identity. "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption." …

[One] factor, whether the litigation involves matters of a sensitive or personal nature, "favors the plaintiff's use of a pseudonym." … "Allegations of sexual assault are 'paradigmatic example[s]' of highly sensitive and personal claims'" …. "However, allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." … "A claim by an adult plaintiff to have been the victim of sexual abuse and to have suffered physical or psychological damage as a result, accompanied by sufficient facts to support that claim, is not enough to entitle a plaintiff to proceed anonymously. Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously." …

[As to the risk of physical or mental harm, as opposed to privacy harm,] "[c]ourts in this District have held that speculative claims of physical or mental harms are insufficient to bolster a request for anonymity." Rather, "[o]vercoming the presumption of openness requires particularized evidence that disclosure will cause injury."

Plaintiff argues that there is a significant risk of physical harm if her identity is disclosed because Combs said to her after the rape that, "[y]ou better not tell anyone about this, or you will disappear," and counsel declares that an overwhelming number of his clients have stated that Combs threatened them similarly. However, the complaint relates to an event nearly thirty years ago; there is no evidence that Combs has been in contact with Plaintiff or made any threats in the last three decades. As important, the Court takes judicial notice that Combs is now under criminal indictment and is in federal custody at the Metropolitan Detention Center. The complaint identifies by name a number of persons who have accused Combs of rape and/or sexual assault. Plaintiff offers no evidence that those persons have been subject to threats as a result of their accusations. Although counsel declares generally that others have similar fears, the declaration is not sworn or made under penalty of perjury under the laws of the United States and is thus inadmissible. Plaintiff has not shown that Combs poses any threat to Plaintiff now or in the future or that the disclosure of Plaintiff's identity will create any harms to any third party.

Plaintiff additionally argues that having her experiences played out in a public forum, including "unwanted attention from the media," would result in "extreme psychological distress." However, Plaintiff relies only on "generic allegations" of mental harm applicable to any litigant bringing a sexual assault claim.

Similarly, the potential for media attention is present in every case against a public figure, but those are correspondingly the cases for which the public interest in understanding the allegations is highest. Without trivializing the difficulties of litigating a sexual assault claim against a high-profile defendant, the fact that a claim is of this type is not by itself sufficient to allow a plaintiff to proceed anonymously. Plaintiff has not introduced particularized medical or other evidence that revelation of Plaintiff's identity would cause "exceptional" emotional harm of the type that justifies anonymity….

In examining {whether the defendant is prejudiced by allowing the plaintiff to press her claims anonymously} …, "courts look at the damage to a defendant's reputation caused by the anonymous proceeding, the difficulties in discovery, as well as at the fundamental fairness of proceeding in this manner." … If Plaintiff's name is kept from the public, information about only one side may thus come to light. In particular, "persons with information about [Plaintiff] or [her] allegations that would be helpful to the defense but were unknown to the defendant might not come forward." "This asymmetry between the parties not only would prejudice [Defendants], but would hinder 'the judicial interest in accurate fact-finding and fair adjudication.'"

Moreover, "courts have found that defending against such allegations publicly, while a plaintiff is permitted to make her accusations from behind a cloak of anonymity, is prejudicial." "Additionally, the plaintiff's anonymity may undermine the defendants' efforts to mitigate the alleged reputational damage stemming from these serious allegations."

[As to the public interest, t]he public has an interest in knowing who has made an allegation against a public figure for, as the case comes before the Court, it may be that the allegation is untrue…. [T]he Court "must not … make any assumptions about whether [plaintiff's] allegations are true or false" … However, "[t]his interest is weighed against the public's competing 'interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes.'" …

Plaintiff allegedly was a victim of a heinous sexual assault and has kept that assault confidential. But Plaintiff cannot be granted anonymity merely because she brings a sexual assault claim, regardless of the severity of her allegations. The very gravity of the charges, combined with the fact that Plaintiff has presented no evidence of specific and concrete harm from disclosure of her identity and the severe prejudice to Defendants from keeping that identity confidential, undermine her claim to proceed anonymously….

Here is the preliminary decision from October, which temporarily allowed pseudonymity:

Plaintiff has made a preliminary showing sufficient to permit the filing of the complaint and the issuance of a summons.  The nature of Plaintiff's sexual assault allegations is highly personal, and Plaintiff states that Defendant Sean Combs threatened her with violence if she spoke of the alleged assault.  Given that Defendant is a public figure, revelation of Plaintiff's identity may also lead to significant, potentially harmful attention from media and the public.  However, Defendants have a right to be heard, the Court must take the interests of the public into account, and "the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses."

Therefore, Plaintiff shall file a renewed motion to continue to proceed anonymously within 30 days after service of the complaint.  In the absence of a timely filed motion, the Court shall order the name of the Plaintiff be disclosed.

Mark Cuccaro, Michael Tremonte, Erica Wolff & Raphael A. Friedman (Sher Tremonte LLP) represent Combs.

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