In the American legal system, parties are generally expected to participate in their own names, but with several narrow exceptions. One of those exceptions is for certain cases where plaintiffs would have to disclose highly private information about themselves. Courts thus often—but far from always—let plaintiffs proceed pseudonymously when the lawsuit would involve disclosure of alleged sexual assault. (For a list of cases going both ways, see my The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1430-37 (2022).)
In the decision affirmed by the Tenth Circuit in Monday’s Luo v. Wang, the lower court had at first allowed plaintiff Luo to proceed pseudonymously, for this very reason: Luo was suing Wang for libel and invasion of privacy based on Wang’s statement about a third party’s alleged sexual assault of Luo. But the lower court then reconsidered, and denied Luo pseudonymity, because Wang’s counsel uncovered evidence of Luo’s past litigation:
Mr. Wang pointed to a Jane Doe case Ms. Luo identified in her complaints filed in this action, where she had sued a man for sexual battery and other claims. In other Jane Doe cases, Ms. Luo sued several municipalities and a state for allegedly failing to prosecute two men for separate alleged sexual assaults against her. Mr. Wang, through declarations offered by defense counsel, submitted evidence of Ms. Luo’s litigious behavior and discovery abuses in two of her other Jane Doe cases, including her refusal to identify in discovery the other lawsuits she had filed.
In another Jane Doe case, Ms. Luo had persuaded the trial court to allow her to proceed using only her initials, in part, by representing in her motion that the case had gained media attention. In a deposition, Ms. Luo later testified to two additional facts she did not disclose in her motion: (1) the initials she proposed to use did not pertain to her real name but to one or more of her aliases; and (2) the news outlets she claimed had taken an interest had learned of the case from Ms. Luo.
Mr. Wang also submitted evidence that Ms. Luo was subject to a domestic-relations restraining order filed in her real name in state court in Orange County, California. In a decision affirming that order, the court described the underlying dispute:
Plaintiff and [Ms. Luo] had a very short relationship, a matter of weeks, after they met on a dating Web site. When plaintiff sent a message to [Ms. Luo] through the dating Web site to stop contacting him, [Ms. Luo] called plaintiff numerous times using several different phone numbers, which plaintiff had to block. [Ms. Luo] also created fake Facebook, Instagram, and Yelp accounts with plaintiff’s name showing naked pictures of him. She sent those pictures to plaintiff’s various friends and business acquaintances.
Czodor v. Xingfei Luo (Cal. Ct. App. 2019). The appellate court observed the trial court’s findings that the plaintiff and his evidence were “credible,” while Ms. Luo had been “evasive regarding posting pictures of plaintiff online.” Mr. Wang also offered evidence that Ms. Luo was subsequently convicted by a California state-court jury in July 2021 of violating the above protective order, vandalism, and disorderly conduct by disseminating private photographs.
The Tenth Circuit upheld the district court’s ultimate decision to deny pseudonymity, though it did so under an “abuse of discretion” standard, which leaves open the possibility that the Circuit might have equally affirmed a district court’s grant of pseudonymity if the district court had so concluded:
When a district court has exercised its discretion, “we will reverse only upon a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” We will also find an abuse of discretion when the district court “commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling.” …
[The district court] conclude[d] Mr. Wang should not be hampered in challenging Ms. Luo’s credibility as it relates to being a vexatious litigant. Ms. Luo now contends her real identity is irrelevant to Mr. Wang’s ability to challenge her credibility. But she did not argue in her objections to the MJ Order that her real identity is irrelevant to her credibility, so this contention is waived. {In any event, Ms. Luo fails to demonstrate that the district court’s finding was clearly erroneous. See, e.g., Doe v. Delta Airlines, Inc. (S.D.N.Y. 2015) (discussing the various effects of a plaintiff’s anonymity on her credibility).} …
[T]he district court[] reason[ed] that [Ms. Luo’s] admitted and alleged conduct—in connection with her other Jane Doe litigation and otherwise—tipped the scales in favor of the public’s right to know her identity in this case…. [Ms. Luo] shows no abuse of discretion.
[T]he district court found Ms. Luo’s anonymity prejudiced Mr. Wang’s ability to demonstrate she is a vexatious litigator and that her conduct in her other cases justified the public’s right to know her identity. In denying a request to proceed anonymously based, in part, on vexatious litigation, another court summarized the relevant concern:
[P]laintiff has engaged in [a] campaign to conceal his litigation history across the country. Plaintiff’s behavior may make it more difficult for other courts (and the public) to find his litigation history, which could act to conceal future vexatious litigation or behavior…. [O]ther courts have deemed plaintiff a vexatious litigant in the past, so this is already an issue of public concern.
Del Nero v. Allstate Ins. Co. (D. Nev. 2022); see also Smith v. Corizon Healthcare (E.D. Cal. 2016) (unpublished) (recommending denial of motion to proceed under a pseudonym, in part, based on “the public’s right to know who is filing lawsuits” and because “Plaintiff’s identity is relevant also for tracking vexatious litigants”). Here the district court cited evidence of Ms. Luo’s conduct in her other Jane Doe cases, which she did not dispute, and Mr. Wang’s wish to challenge her credibility as a vexatious litigant. The court did not abuse its discretion in weighing these facts against Ms. Luo’s request to proceed anonymously.
I filed an amicus brief in the case on behalf of the Colorado Freedom of Information Coalition, the Colorado Press Association, and myself, supporting the District Court’s decision to deny pseudonymity to Wang; and I had intervened below to unseal certain items that had been sealed in District Court. Disclosure: Doe sued me in California, seeking a restraining order that would require me to remove information about her past cases from my writings; I prevailed on anti-SLAPP motion in trial court, but she is currently appealing that decision.
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