MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Defendant
“John Doe” moves, once again, for an order
permitting him to proceed in this action under pseudonym-this
time with the consent of Plaintiff “Jane Roe, ”
and asking that she be granted a pseudonym as well. Defendant
also requests retroactive sealing or an alternative treatment
of prior proceedings in this matter that would similarly
advance the parties' confidentiality interests.
When
the Court denied Defendant's first attempt to proceed
under pseudonym, the Court recognized its discretion but
found that Defendant had not satisfied a five-factor test
that sister courts in this Circuit often apply to such
requests. See Mem. Op., ECF No. 15. Defendant now
raises several new or previously undisclosed developments
that may affect the exercise of the Court's discretion,
including the Court's application of the relevant test.
Upon
consideration of Defendant's brief, the relevant legal
authorities, and the record as a whole, in an exercise of its
discretion the Court shall GRANT
Defendant's [23] Consent Motion to Proceed Under
Pseudonym.
I.
BACKGROUND
On
several prior occasions, the Court has discussed
Plaintiff's allegations and the subsequent proceedings in
this matter. See Mem. Op., ECF No. 15, at 2; Mem.
Op., ECF No. 19, at 1-3. As Defendant summarizes,
“[t]he allegations in this matter involve an incident
of sexual intercourse between [Plaintiff] and [Defendant]
that the former alleged was nonconsensual and the latter
maintains was fully consensual.” Consent Motion to
Proceed Under Pseudonym, ECF No. 23 (“Def.'s
Mot.”), at 7 (citing Compl, ECF No. 1, ¶¶
33-41). Of note now, Plaintiff's only remaining claim
against Defendant is for sexual assault and battery; the
Court dismissed her claim for negligence and gross
negligence. Mem. Op., ECF No. 19.
II.
LEGAL STANDARD
“Although
it is within the discretion of the district court to grant
the ‘rare dispensation' of anonymity against the
world (but not the plaintiff), even in that situation the
court has ‘a judicial duty to inquire into the
circumstances of particular cases to determine whether the
dispensation is warranted.'” United States v.
Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995)
(quoting James v. Jacobson, 6 F.3d 233, 238 (4th
Cir. 1993)). The D.C. Circuit has indicated that district
courts considering requests for pseudonyms should evaluate
both the likelihood of any unfairness to the non-movant and
the presumption of transparency vis-à-vis the public.
Id. (citing S. Methodist Univ. Ass'n of
Women Law Students v. Wynne & Jaffe, 599 F.2d 707,
713 (5th Cir. 1979); Doe v. Stegall, 653 F.2d 180,
186 (5th Cir. 1981) (“customary and
constitutionally-embedded presumption of openness in judicial
proceedings”)).
The
D.C. Circuit's Microsoft ruling made clear, at
the least, “that courts must be prepared to thoroughly
analyze motions that would permit parties to remain anonymous
throughout the course of litigation.” Doe v.
Teti, No. 1:15-mc-01380, 2015 WL 6689862, at *1 n.1
(D.D.C. Oct. 19, 2015) (citing Microsoft Corp., 56
F.3d 1448). In the absence of a detailed standard from the
D.C. Circuit, courts in this Circuit have often deployed the
following test articulated in the Fourth Circuit's
James decision, which the Microsoft Court
cited approvingly:
[1] [W]hether the justification asserted by the requesting
party is merely to avoid the annoyance and criticism that may
attend any litigation or is to preserve privacy in a matter
of sensitive and highly personal nature; [2] whether
identification poses a risk of retaliatory physical or mental
harm to the requesting party or even more critically, to
innocent non-parties; [3] the ages of the persons whose
privacy interests are sought to be protected; [4] whether the
action is against a governmental or private party; and,
relatedly, [5] the risk of unfairness to the opposing party
from allowing an action against it to proceed anonymously.
James, 6 F.3d at 238; see also, e.g.,
Yacovelli v. Moeser, No. 02-596, 2004 WL 1144183, at
*6 (M.D. N.C. May 20, 2004) (quoting James, 6 F.3d
at 238); Nat'l Ass'n of Waterfront Emp'rs v.
Chao, 587 F.Supp.2d 90, 99 (D.D.C. 2008) (citing
Yacovelli, No. 02-596, 2004 WL 1144183, at *6-*8);
Roe v. Bernabei & Wachtel PLLC, 85 F.Supp.3d 89,
96 (D.D.C. 2015) (quoting Chao, 587 F.Supp.2d at
99). “No single factor is necessarily determinative; a
court ‘should carefully review all the
circumstances of a given case and then decide whether the
customary practice of disclosing the [movant's] identity
should yield' to the [movant's] request for
anonymity.” Teti, No. 1:15-mc-01380, 2015 WL
6689862, at *2 (quoting Doe v. Frank, 951 F.2d 320,
323 (11th Cir. 1992) (discussing Fifth Circuit's standard
in Stegall)).
“Pseudonymous
litigation is for the unusual or critical case, and it is the
litigant seeking to proceed under pseudonym that bears the
burden to demonstrate a legitimate basis for proceeding in
that manner.” Qualls v. Rumsfeld, 228 F.R.D.
8, 13 (D.D.C. 2005).
III.
DISCUSSION
Defendant
does not contest the Court's decision to apply the
James test to his previous motion to proceed under
pseudonym. Rather, he argues that several developments should
affect the outcome of that test. Defendant also takes the
opportunity to argue that the Court misapplied several of the
James factors in the first instance. Rather than
revisiting James in toto, however, ...