The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In this civil rights action, plaintiffs Jane and John Doe seek damages from defendant police officers and the City of New York for allegedly egregious acts of police brutality and abuse. They have brought the suit pseudonymously, with the permission of a judge of this court obtained ex parte before filing, contending that their interests in privacy outweigh the normal presumption that suits be brought in the parties' proper names. Defendants now move to revoke this permission and require the caption to reflect the true names of the plaintiffs. The motion will be granted.
The complaint in this case alleges the following facts.*fn1 Plaintiffs, a married couple, were accosted by plainclothes police officers late at night on February 20, 2005. Both plaintiffs were recent law school graduates at the time, though not yet admitted to the bar. The officers demanded John Doe's identification and wallet. When plaintiffs, believing they were being robbed, demanded to see badges or identification, the officers threw John Doe first against a wall, then to the ground, injuring him.
At this point, a marked police car containing several uniformed officers, including defendant Scott Brady, a sergeant, arrived on the scene. Brady and the other defendant officers then placed John Doe under arrest and drove him to a police precinct, where he was further beaten into unconsciousness.*fn2 Jane Doe was left on the street, despite her protests that she was left without means of transportation and that her husband was holding their money, cell phone, and apartment keys.
Jane Doe eventually made her way to the police station, where she sought the release of her husband. Although this request was not granted, Brady told her that he would direct the arresting officers to reduce the charges against John Doe, and offered to drive Jane Doe to her apartment. Upon arrival, Brady persuaded Jane Doe to admit him to her apartment, where he poured alcoholic drinks for them. Brady then pulled Jane Doe to him and "fondl[ed] her breasts, arms, neck and back, kissing her, and rubbing his body against her," despite her physical resistance. (Compl. ¶¶ 45-46.) Brady eventually desisted and left the apartment, though the next day he telephoned Jane Doe several times, leaving threatening voicemail messages.
John Doe was charged in criminal complaints with public lewdness, assault, and resisting arrest. The charges eventually were dismissed on speedy trial grounds. After complaints to the police department resulted in no disciplinary action against the defendant officers, plaintiffs filed this lawsuit. Defendants now move to compel the suit to be brought in plaintiffs' true names.
Rule 10(a) of the Federal Rules of Civil Procedure expressly requires that civil actions be brought in the true name of the plaintiffs, providing that every pleading shall carry "the title of the action," and that in the complaint such title "shall include the names of all the parties."*fn3 This rule, moreover, has constitutional overtones. "Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings," Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), a right that is supported by the First Amendment, U.S. Constit. amend. I. See also Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974) ("[T]he public has a right of access to the courts. Indeed, lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.").
Courts, therefore, begin with a presumption against anonymous or pseudonymous pleading. See, e.g., Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (weighing the plaintiff's interest in pseudonymity against the "constitutionally-embedded presumption of openness in judicial proceedings"). While our Court of Appeals has not specifically addressed the issue of pseudonymous pleadings, it has emphasized in other contexts the "presumption of access" to judicial proceedings, noting that this presumption "is based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice . . . . [P]ublic monitoring is an essential feature of democratic control." United States v. Amodeo, 71 F.3d 1044, 1048 (2d. Cir. 1995). The Second Circuit has instructed that "the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 1049. Information most clearly due for disclosure includes any "document which is presented to the court to invoke its powers," id. at 1050, a category encompassing complaints. Requiring a plaintiff to place his or her name on the complaint serves the constitutional goal of enabling public monitoring of the courts: The press and public can hardly make an independent assessment of the facts underlying court cases, or even assess judicial impartiality or bias, without knowing who the litigants are.
Despite this presumption against anonymous or pseudonymous pleading, it is common ground that this presumption can be overcome, and that courts have discretion to permit such pleading in appropriate circumstances. See, e.g., James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) ("The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in the first instance to trial court discretion."). The weight of the presumption of openness is such, however, that courts have granted requests for pseudonymity only "in limited 'matters of a sensitive and highly personal nature.'" Heather K. v. City of Mallard, 887 F. Supp. 1249, 1255 (N.D. Iowa 1995), quoting Deschamps, 64 F.R.D. at 653. As the parties here agree, such matters are "exceptional" (P. Mem. 6, quoting America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 363 (2001); D. Mem. 3, citing Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992)).
In deciding whether to permit pseudonymous pleading, courts must balance "the plaintiff's right to privacy and security against the dual concerns of (1) the public interest in identification of litigants and (2) the harm to the defendant stemming from suppression of plaintiff's name." Smith, 105 F. Supp. 2d 40, 44 (E.D.N.Y. 1999) (internal quotation marks and citation omitted). "The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." Free Speech v. Reno, 98 Civ. 2860 (MBM), 1999 WL 47319, at *2 (S.D.N.Y. Feb. 1, 1999) (internal quotation marks and citations omitted). In undertaking this balance, courts have considered such factors as (1) whether the plaintiff is suing the government or a private person; (2) whether the plaintiff would be compelled to disclose intimate information; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced; (6) the ages of the parties whose identity is to be suppressed; (7) the extent to which the identity of the litigant has been kept confidential; (8) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and (9) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.*fn4
These factors function in different ways. Several of them constitute specific aspects of a plaintiff's potential privacy interests. Three of the factors -- the need to protect intimate information, the risk of injury, and the risk of disclosure of putatively illegal conduct -- are different reasons why privacy may be important to a particular litigant.*fn5 Where one or more particular interests in privacy are present in a case, the weight to be attached to those interests may vary. The risk of injury may be physical or psychological, greater or less, more or less likely.*fn6 The intimacy of the facts to be disclosed may or may not rise to the level of "utmost intimacy" that some courts have suggested is required. Free Speech, 1999 WL 47319 at *2. Some of the factors mentioned affect the weight of the privacy interest involved. The age of the parties is such a factor; courts have been readier to protect the privacy of infant plaintiffs than of adults, see, e.g., James, 6 F.3d at 241; Doe v. Stegall, 653 F.2d 180, 186 (4th Cir. 1981), whether because children are conceived as more vulnerable or because the child whose privacy is at ...