No Anonymity for This Plaintiff

Anonymous v Lerner,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00469 [1st Dept., 2015]

The anonymous plaintiff claimed that the defendant negligently and fraudulently gave her herpes. The defendant moved to compel her to be named in the action, which Supreme Court granted and the First Department here affirmed. Clearly, the allegations of a sexually transmitted disease implicate substantial privacy rights, but then the complaint implicates the defendant’s privacy rights to the same extent. The plaintiff didn’t help herself by giving interviews to the news media before serving the summons and complaint on the defendant. The court’s discretion is to be guided by balancing the plaintiff’s privacy claims against the presumption favoring open trials and prejudice to the defendant. The court noted that mere claims of public humiliation and embarrassment will not justify allowing a party to proceed anonymously.

There is not a lot of law on this point. “J. Doe No. 1” v CBS Broadcasting Inc., involved a claim of damage to chattels, and the plaintiff’s attempt to remain anonymous was rejected since the privacy right involved was insufficiently substantial to allow intrusion into the basic principle of open court proceedings. The complaint was dismissed, however, because the complaint also failed to state a cause of action. The closest reported case is Doe v. Kidd, where the plaintiff alleged she had been groped in a nightclub by a prominent athlete. The privacy concerns there, too, did not justify anonymous proceedings. There, too, the plaintiff’s claim to anonymity was undercut by interviews given to the news media by her attorney.

It is interesting that the motion here was made by the defendant. The plaintiff apparently simply filed and served a complaint naming herself only as “Anonymous,” without prior court order. By contrast, the application in Doe v. Kidd was made by the plaintiff, by order to show cause at the very outset of litigation. If the motion had been granted the order would presumably have enjoined the defendant from public disclosure of the plaintiff’s identity. What, if anything, was there to prevent the defendant here from publicly revealing the plaintiff’s name, indeed from broadcasting it to anyone who would listen?