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John v. Kolko

November 3, 2006

JOHN DOE NO. 2, PLAINTIFF,
v.
RABBI YEHUDA KOLKO AND YESHIVA & MESIVTA TORAH TEMIMAH, INC. F/K/A YESHIVA TORAH VODAATH OF FLATBUSH, INC., DEFENDANTS.



The opinion of the court was delivered by: Go, United States Magistrate Judge

ORDER

Plaintiff, who filed his complaint under the pseudonym John Doe No. 2, brought this action against defendants Rabbi Yehuda Kolko and Yeshiva & Mesivta Torah Temimah, Inc. (the "Yeshiva") alleging that Rabbi Kolko sexually abused him as a child, while plaintiff was a student at the Yeshiva. Plaintiff moves to proceed anonymously and for extension of a protective order entered pending decision on the instant motion.

BACKGROUND

Plaintiff alleges that beginning in 1978, Rabbi Kolko sexually abused him while plaintiff was a minor student at the Yeshiva and Rabbi Kolko was employed there as a rabbi and teacher. Amended Complaint ("Am. Compl.") (ct. doc. 17) at ¶¶ 8, 9. Plaintiff further alleges that the Yeshiva engaged in a campaign of intimidation, concealment and misrepresentations in order to prevent Rabbi Kolko's victims from filing civil lawsuits and obtaining facts necessary to bring civil claims. Id. at ¶ 12.

John Doe No. 1, originally a plaintiff in this case, dismissed his claims without prejudice to refiling a complaint in his true name. See ct. doc. 16. In a related case, 06-CV-2215, plaintiff Israel Tsatskis had also originally filed his complaint under the pseudonym, John Doe No. 3. See 06-CV-2215, ct. docs. 1, 18. Both plaintiffs also accuse Rabbi Kolko of sexually abusing them as children and the Yeshiva of concealing his crimes.

On June 2, 2006, this Court ordered plaintiff's counsel to disclose plaintiff's identity to defendants' counsel, with the instruction that counsel should not disseminate plaintiff's name to anyone other than the parties, personnel of the entity defendant and the attorneys' support personnel who need to know such information in preparing this case. See ct. doc. 4. After hearing from the parties on the terms of a formal protective order, this Court entered a protective order requiring, inter alia, that prior to disclosure of plaintiff's identity to potential witnesses, the intended recipient execute an Acknowledgment of Protective Order and Agreement to be Bound (the "Acknowledgment") acknowledging the existence of the protective order and agreeing to be bound by its terms. See ct. docs. 16, 20 and Exh. A (the "Protective Order"). As noted at a conference on June 21, 2006, this Court would entertain any future application to modify the terms of the order in light of discovery concerns and would consider the need for such an order in ruling on the instant motion to proceed anonymously.

In support of his motion, plaintiff states that he suffers from post traumatic stress disorder, bipolar disorder and depression and will experience psychological harm if his identity is revealed in this case, a claim supported by his treating psychiatrist. Declaration of Ronen Hizami, M.D. at ¶¶ 3-4 ("Hizami Decl.") (ct. doc. 27); Affidavit of John Doe No. 2 dated June 28, 2006 ("John Doe Aff.") (ct. doc. 24) at ¶¶ 2-3. Plaintiff further claims that he will suffer intimidation and retaliation by members of the Orthodox Jewish community, of which he is a member, if his identity is publicly disclosed. See John Doe Aff. at ¶ 3.

DISCUSSION

Motion to Proceed Anonymously

Federal Rule of Civil Procedure 10(a) requires that a complaint "include the names of all the parties." Fed. R. Civ. P. 10(a). Moreover, the public has a right of access to judicial proceedings. See Nixon v. Warner Commc'n., Inc., 435 U.S. 589, 598-99 (1978); Huminski v. Corsones, 396 F.3d 53, 80 (2d Cir. 2005). Nevertheless, the federal courts have permitted a party to proceed under a pseudonym when special circumstances warrant anonymity. See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685-87 (11th Cir. 2001); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir. 2000); James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir. 1993); EW v. New York Blood Center, 213 F.R.D. 108, 110-12 (E.D.N.Y. 2003); Javier v. Garcia-Botello, 211 F.R.D. 194, 196 (W.D.N.Y. 2002); Doe v. Smith, 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999); Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988). The Seventh Circuit, which disfavors the use of fictitious names, has recognized that sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity. See Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir. 1997) ("fictitious names are allowed when necessary to protect the privacy of . . . rape victims, and other particularly vulnerable parties or witnesses"); see also Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004).

Whether to allow a plaintiff to proceed anonymously is within the court's discretion. See Aware Woman Ctr., 253 F.3d at 684; Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 110. Courts will permit a party to proceed under a pseudonym where "the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." Does I Thru XXIII, 214 F.3d at 1068; see Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 111; Smith, 105 F. Supp. 2d at 42-44. Among the factors courts have considered in balancing these competing interests are: 1) whether the plaintiff is challenging governmental activity or an individual's actions, 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy, 3) whether identification would put the plaintiff at risk of suffering physical or mental injury, 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously, and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system. See EW, 213 F.R.D. at 111; Javier, 211 F.R.D. at 195; Smith, 105 F. Supp. 2d at 42. Related to the third factor is the concern "whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties . . . ." James, 6 F.3d at 238.

As to the first and fifth factors, whether the defendants are governmental entities is significant because a challenge to governmental policy ordinarily implicates a public interest and the government has less of a concern with protecting its reputation than a private individual. See EW, 213 F.R.D. at 111. The Yeshiva and Rabbi Kolko are neither governmental entities nor ordinary private parties. However, like the blood center discussed in EW, the Yeshiva "is organized solely to perform an important, public service" and the rabbi is employed to assist in achieving the Yeshiva's goals. EW, 213 F.R.D. at 111-12. Given the significant roles held by these defendants in their community, plaintiff's allegations of sexual abuse of children and the Yeshiva's attempt to conceal such abuse raise concerns affecting a larger association rather than the interest of an individual plaintiff.

Additionally, the public generally has a strong interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes. See Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001) (granting anonymity to sexual assault victim). While the Yeshiva may be correct that its greatest asset is its reputation, it is not different from the blood center at issue in EW, which undoubtedly suffered from allegations that it transfused tainted blood. Although Rabbi Kolko's personal reputation is at stake, he and the Yeshiva will have a public forum to defend the charges of abuse and concealment since the two other plaintiffs originally proceeding anonymously have publicly disclosed their identities.*fn1 On balance, I find that this case is more analogous to one involving a governmental defendant where the private concerns are outweighed by the overriding public interest in regulating the conduct at issue. EW, 213 F.R.D. at 111-12.

With regard to the second factor, courts have granted anonymity to protect against disclosure of a wide range of issues involving matters of the utmost intimacy, including sexual assault. See, e.g., Aware Woman Ctr., 253 F.3d at 685 (abortion); EW, 213 F.R.D. at 111 (infection with hepatitis B); Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001) (sexual assault victim); Smith, 105 F. Supp. 2d at 42 (sexual assault victim); WGA v. Priority Pharmacy, Inc., 184 F.R.D. 616, 617 (E.D. Mo. 1999) (status as AIDS patient); Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988) (sexual orientation); see also Blue Cross, 112 F.3d at 872 (recognizing rape victims as entitled to anonymity). Indeed, many states in this country, including New York, have enacted laws to protect the anonymity of sexual assault victims. See N.Y. Civil Rights Law ยง 50-b. Upon approving New York's rape shield law, then Governor Mario Cuomo stated, "sexual assault victims have unfortunately had to endure a terrible invasion of their physical privacy. They have a right to expect that this violation will not be compounded by a further ...


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