Felix v. Symantec Corporation et al

Filing 400

ORDER RE 354 311 314 REQUESTS TO PROCEED PSEUDONYMOUSLY. (whalc1, COURT STAFF) (Filed on 8/9/2021)

Case 3:18-cv-02902-WHA Document 400 Filed 08/09/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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SEB INVESTMENT MANAGEMENT AB,
individually and on behalf of all others
similarly situated,
Plaintiff,

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No. C 18-02902 WHA

v.
SYMANTEC CORPORATION and
GREGORY S. CLARK,

ORDER RE REQUESTS TO
PROCEED
PSEUDONYMOUSLY

Defendants.
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Two non-party witnesses seek leave to proceed under monikers, “FE1” and “FE2,” to

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preserve their privacy. Unusual circumstances, the particularities of the subject matter, and the
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lack of prejudice to defendants (who most likely already know the non-party witness’
identities) weigh in movants’ favor. Leave is GRANTED, to the extent stated below. This order

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does not, however, decide FE1 and FE2’s requests for sealing their responses to other parties’
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administrative motions to seal.
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In general, the public has every right to inspect court records. See Nixon v. Warner
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Commnc’ns, Inc., 435 U.S. 589, 597 (1978). Our court of appeals has established a strong

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presumption in favor of access. Public confidence in the administration of justice rests on
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accountability — knowing to whom courts afford relief, against whom judgments run, and

Case 3:18-cv-02902-WHA Document 400 Filed 08/09/21 Page 2 of 4

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why. See Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1096–97 (9th Cir. 2016), citing

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United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995).

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When necessary, however, courts must weigh personal harm against the value of public

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scrutiny. Courts may seal select records, such as those tending to spite, scandalize, or

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irreparably harm. See id. at 1097. And, relevant for our purposes, both the United States

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Supreme Court and our court of appeals have long recognized the need for certain parties to

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proceed pseudonymously where identification might subject one to “harassment, injury,

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ridicule or personal embarrassment,” such as an inmate cooperating as a witness, a mother

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bringing an Establishment Clause claim in a small town, or, famously, a woman seeking an
abortion. See United States v. Doe, 655 F.2d 920, 922 fn. 1 (9th Cir. 1980); e.g., Doe v.

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United States District Court
Northern District of California

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Madison School Dist. No. 321, 147 F.3d 832 (9th Cir. 1998); Roe v. Wade, 410 U.S. 113

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(1973).

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In Does I thru XXIII v. Advanced Textile Corporation, 214 F.3d 1058 (9th Cir. 2000), our

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court of appeals permitted textile-factory workers in Saipan, who feared deportation to and

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imprisonment upon arrival in China, to sue pseudonymously for wage and hour violations and

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articulated the standard for evaluating requests to obscure a party’s name. “[A] party may

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preserve his or her anonymity in judicial proceedings in special circumstances when the party’s

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need for anonymity outweighs prejudice to the opposing party and the public’s interest in

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knowing the party’s identity.” Id. at 1068–69. Courts balance the severity of, the party’s

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vulnerability to, and the reasonable proximity of the threatened harm against any prejudice to

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the opposing party and public interest in disclosure. Ibid.

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The standard applicable to nonparties does not clearly differ from the standard for parties.

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Nor do FE1 or FE2 suggest otherwise. Our court of appeals has maintained anonymity for

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both nonparties and parties. For example, in a federal criminal matter at our court of appeals, a

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decision concealed the identities of the minor defendant, his parents, a Tribal Administrator,

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and indeed of the Washington state tribe itself. See United States v. Indian Boy X, 565 F.2d

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585, 588 (9th Cir. 1977). In another matter, our court of appeals recognized the need for

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anonymity for a defendant-appellant and his co-offender. The defendant-appellant was serving
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a long prison sentence, so the “unusual case” warranted anonymity due to a “risk of

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harassment, ridicule,” most relevant there, “injury, or personal embarrassment.” United States

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v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1980).

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This order finds that FE1 and FE2 may proceed by these monikers at this stage. First,

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there will be no prejudice to the defendants, who likely know the parties’ identities and have

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subpoenaed their testimony already. Second, FE1 and FE2 articulate reasonably proximate and

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significant harms should their identity be disclosed. FE1 and FE2 work in a relatively close-

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knit business community. As whistleblowers at a technology company, they reasonably claim

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that current and future employers could learn about their prior whistleblowing. Those

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United States District Court
Northern District of California

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companies could plausibly fire FE1 or FE2 or hire others due to this publicity.
Third, this order notes that the public — and justice — would suffer if courts fail to

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protect whistleblowers from the possibility of retaliation for reporting information, both

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internally and to the SEC, etc. Without reaching the merits of FE1 and FE2s’ allegations about

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defendants, this order finds that the law protects whistle-blowers so that the truth can continue

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to emerge. This matters. Reasonable minds may disagree about the actual degree of

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professional harm (or personal embarrassment), but we focus on whether a reasonable person

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would view the threat as credible. We do not evaluate the degree of threat. Our court of

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appeals found credible the unquestionably far-fetched threat of deportation from a territory of

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the United States and imprisonment in the People’s Republic of China in retaliation for

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complaints against working conditions. See Advanced Textile, 214 F.3d at 1071–72. So too

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here. This order finds FE1 and FE2 face a reasonably credible threat of some professional

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harm.

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Fourth, the threatened harm here for now outweighs the public interest in disclosure of

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FE1’s and FE2’s names. The public interest in disclosure here lies in reviewing the record that

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undergirds the orders in this action. A real interest lies, too, in the public’s watchful eye on the

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credibility of the sources in that record. Confidential sources pose a small risk of lesser

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credibility. But, as our court of appeals recognized, “[t]he public also has an interest in seeing

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this case decided on the merits.” Advanced Textile, 214 F.3d at 1073. Between full
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transparency dissuading future suits and a moniker-laced decision on the merits, the public

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interest favors using with pseudonyms at this stage.

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FE1 and FE2 may proceed by their monikers in all filings. Both parties shall please do

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the same. While the Court is aware of no filings containing FE1’s or FE2’s real names,

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counsel shall diligently review filings to ensure that any documents not under seal contain

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pseudonyms only.

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In as much as the summary judgment motion herein has been stayed pending settlement,

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the identities of the confidential witnesses may remain secret, and they may continue to

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proceed with monikers FE1 and FE2. This is subject to change if the settlement craters.

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United States District Court
Northern District of California

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To the extent stated above, the motions to proceed pseudonymously and the motions to
file under seal by FE1 and FE2 are GRANTED.

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IT IS SO ORDERED.

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Dated: August 9, 2021.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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