Doe v. The New Mexico Board of Bar Examiners et al

Filing 96

ORDER by Magistrate Judge Steven C. Yarbrough quashing 6 Order to Show Cause and denying 12 Petition for Permission to File Anonymously. Within 15 days of the entry of this Order, Plaintiff shall re-file her Third Amended Complaint on the docket under her name. The Clerk's office is also directed to unseal Docs. 12, 14, 15, 16, 27, 28, 33, 34, 36, 37, 38, 92. (cm)

Case 1:21-cv-00709-GBW-SCY Document 96 Filed 11/18/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JANE DOE,
Plaintiff,
vs.

Civ. No. 21-709 GBW/SCY

THE NEW MEXICO BOARD OF
BAR EXAMINERS, et al.,
Defendants.
ORDER DENYING PETITION TO PROCEED ANONYMOUSLY
This matter comes before the Court following its Notice and Order to Show Cause, filed
August 3, 2021. Doc. 6. In that Order, the Court noted that Plaintiff filed her complaint under the
pseudonym “Jane Doe.” However, proceeding anonymously is not contemplated by the Federal
Rules of Civil Procedure. Rather, Rule 10(a) requires that the title of a complaint “name all the
parties,” and Rule 17(a) prescribes that “[a]n action must be prosecuted in the name of the real
party in interest.” Nonetheless, the Tenth Circuit has recognized there may be cases in which
“exceptional circumstances” warrant permitting a party to proceed anonymously. Femedeer v.
Haun, 227 F.3d 1244, 1246 (10th Cir. 2000). Accordingly, the Court required Plaintiff to show
cause why her full name should not be fully disclosed in public filings with the court. In
response, Plaintiff filed a Petition for Permission to File Anonymously, Doc. 12, and both the
National Conference of Bar Examiner (“NCBE”) Defendants and the New Mexico Board of Bar
Examiners (“NMBBE”) Defendants filed a response in opposition to her petition. Docs. 92, 94.
As discussed in the Notice and Order to Show Cause, whether a plaintiff may proceed
anonymously is subject to the discretion of the trial court. M.M. v. Zavaras, 139 F.3d 798, 802
(10th Cir. 1998). In exercising that discretion, the court must “weigh[] the plaintiff’s claimed
right to privacy against the countervailing public interest.” Id. at 803. The public has an

Case 1:21-cv-00709-GBW-SCY Document 96 Filed 11/18/21 Page 2 of 5

“important interest in access to legal proceedings.” Femedeer, 227 F.3d at 1246. Moreover,
without a party’s name in the public record, “it is difficult to apply legal principles of res judicata
and collateral estoppel.” Id. “Ordinarily, those using the courts must be prepared to accept the
public scrutiny that is an inherent part of public trials.” Id. “A plaintiff should not be permitted to
proceed under a pseudonym unless the need for anonymity outweighs the public interest in favor
of openness.” Raiser v. Brigham Young Univ., 127 F. App’x 409, 411 (10th Cir. 2005).
Lawsuits are public events. A plaintiff should be permitted to proceed
anonymously only in exceptional cases involving matters of a highly sensitive and
personal nature, real danger of physical harm, or where the injury litigated against
would be incurred as a result of the disclosure of the plaintiff’s identity. The risk
that a plaintiff may suffer some embarrassment is not enough.
Femedeer, 227 F.3d at 1246 (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)).
In her petition to proceed anonymously, Plaintiff alleges that this case involves
matters of a highly sensitive and personal nature because it alleges discrimination based
on her disability; accordingly, her medical information will become part of the case. She
is concerned that attaching her name to the case will trigger mental and physical stressors
and will allow the public (including future employers and clients) access to her medical
records. She cites generally to her privacy rights under the ADA and HIPPA.
Plaintiff’s desire for anonymity does not outweigh the public’s interest in open court
proceedings. Disclosure of the general nature of a plaintiff’s disability occurs in virtually all
ADA and disability discrimination cases. Concern about such generalized disclosure is not an
exceptional circumstance that warrants anonymity. See Doe v. Regents of Univ. of New Mexico,
No. CV 98-725 SC/DJS, 1999 WL 35809691, at *2 (D.N.M. Mar. 10, 1999) (finding the
plaintiff’s allegations of clinical depression insufficient to allow her to proceed anonymously:
“Clinical depression, like any mental illness, may carry with it the perception of a societal

2

Case 1:21-cv-00709-GBW-SCY Document 96 Filed 11/18/21 Page 3 of 5

stigma; Plaintiff has, however, made no exceptional showing of the need for privacy in this
case.”). Likewise, Plaintiff’s speculative concerns about future employment are insufficient to
allow her to proceed anonymously. See Raiser, 127 F. App'x at 411 (“The risk that a plaintiff
may suffer some embarrassment is insufficient to permit anonymity.”)
To be clear, the Court is not requiring Plaintiff to file medical records or other detailed
medical information publicly. In her complaints, Plaintiff only generally describes her alleged
medical conditions. See Docs. 1, 15, 25, 38 (mentioning permanent pulmonary disabilities,
multiple permanent and terminal disabilities, visual impairment, and chronic pain). As the case
proceeds, Plaintiff is welcome to propose a protective order for specific documents and medical
records she believes should remain protected and the Court will address any such requests at that
time. However, a disability-discrimination plaintiff’s concern that the general nature of her
alleged disability will be disclosed as part of her lawsuit does not override the strong
presumption in favor of open proceedings and, therefore, does not serve as a basis to proceed
anonymously.
For these reasons, the Court denies Plaintiff’s petition to proceed anonymously. Within
15 days of the entry of this Order, Plaintiff shall re-file her Third Amended Complaint on the
docket under her name.
Lastly, in addition to using a pseudonym, Plaintiff has filed several documents on the
docket under seal. The Court previously held that when it decided the pseudonym issue, it would
also decide whether to allow those documents to stay under seal. See Doc. 17, 22, 32, 35, 40.
“Courts have long recognized a common-law right of access to judicial records.” Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). However, this right is not absolute and “can be
rebutted if countervailing interests heavily outweigh the public interests in access.” Id. “The

3

Case 1:21-cv-00709-GBW-SCY Document 96 Filed 11/18/21 Page 4 of 5

party seeking to overcome the presumption bears the burden of showing some significant interest
that outweighs the presumption.” Id. That party “must articulate a real and substantial interest
that justifies depriving the public of access to the records that inform our decision-making
process.” JetAway Aviation, LLC v. Bd. of Cnty. Com’rs of Cnty. of Montrose, 754 F.3d 824, 826
(10th Cir. 2014).
Here, Plaintiff has not met her burden to articulate real and substantial interests that
outweigh the public’s interest in access to records. The documents she seeks to seal include her
complaints, petition to file anonymously, motions to seal, motion for service, and motion to
proceed IFP.1 Docs. 12, 14, 15, 16, 27, 28, 33, 34, 36, 37, 38. These documents include only
general references to her medical information, if they include any reference at all. For the same
reasons discussed above, the Court does not find that these documents should be sealed from
public view. Lastly, the NCBE Defendants filed their response to the petition to proceed
anonymously under seal, pending a ruling from the Court on the petition. Because the Court is
unsealing Plaintiff’s petition to proceed anonymously (Doc. 12) and is requiring her to disclose
her name, the Court will likewise unseal Defendants’ response (Doc. 92).
This unsealing order does not apply to documents the Court previously allowed to be
filed under seal. See Doc. 45 (order granting Plaintiff’s motion to seal her second request for IFP
and financial affidavit which contain financial information (Docs. 42 and 43)). Additionally,
Plaintiff’s motion to withdraw and the Court’s order allowing withdraw include her address and

1

Plaintiff’s first motion for IFP includes only a statement that Plaintiff is indigent, without
including any private financial information. Doc. 27. The Court will therefore unseal this
document. Plaintiff’s second IFP motion (Docs. 42, 43) includes private financial information,
and so the Court will allow those documents to remained sealed, as previously ordered (Doc. 45).
4

Case 1:21-cv-00709-GBW-SCY Document 96 Filed 11/18/21 Page 5 of 5

contact information. Docs. 8, 9. The Court will allow such private information to stay under seal;
therefore, this unsealing order does not apply to Docs. 8 and 9.
IT IS THEREFORE ORDERED AS FOLLOWS:
•

The Notice and Order to Show Cause (Doc. 6) is quashed;

•

Plaintiff’s Petition for Permission to File Anonymously (Doc. 12) is denied. Within 15
days of the entry of this Order, Plaintiff shall re-file her Third Amended Complaint on
the docket under her name; and

•

The Clerk’s Office shall unseal Docs. 12, 14, 15, 16, 27, 28, 33, 34, 36, 37, 38, 92.

______________________________________
Steven C. Yarbrough
United States Magistrate Judge

5