Bingham et al v. Wilson et al

Filing 67

ORDER AND OPINION granting 5 Motion for Protective Order. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 3/11/2025.(ltap, ) Modified document type on 3/12/2025 (sshe, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Natalie Dawn Bingham, et al.,
v.

Case No. 2:25-cv-163-RMG

Plaintiffs,
ORDER AND OPINION

Alan McCrory Wilson, in his official
capacity as Attorney General of South
Carolina, et al.,
Defendants.

Before the Court is Plaintiff Jane Doe’s motion to proceed under a pseudonym and for a
protective order limiting disclosure of her identity to counsel for Defendants and this Court
pursuant to Fed. R. Civ. P. 26(c). (Dkt. No. 5). Defendants and Intervenor-Defendant oppose
Plaintiff’s motion. (Dkt. Nos. 61, 62). Plaintiff replied. (Dkt. No. 66). For the reasons set forth
below, the Court grants Plaintiff’s motion.
I.

Introduction
Plaintiff physicians filed suit against Defendants on January 8, 2025, alleging South

Carolina’s Abortion Ban is unconstitutionally vague in violation of the Due Process Clause of the
Fourteenth Amendment and violates Plaintiffs’ right to practice their faith under the Free Exercise
Clause of the First Amendment. (Dkt. No. 1). Plaintiffs filed an Amended Complaint on January
15, 2025. (Dkt. No. 10). Plaintiff Doe now moves this Court to permit her to proceed under a
pseudonym and for a protective order limiting disclosure of her identity to Defendants and this
Court, citing her fear of retaliation against herself and her children were she to be named as a
plaintiff in this action. (Dkt. No. 5).

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II.

Legal Standard
A. Motion to Proceed Pseudonymously
There is a “presumption” that parties must sue and be sued in their own names. James v.

Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); see also Fed R. Civ. P. 10(a) (providing that “[t]he title
of the complaint must name all the parties”). This stems from the recognition that
“[p]seudonymous litigation undermines the public's right of access to judicial proceedings”
because “[t]he public has an interest in knowing the names of litigants, and disclosing the parties’
identities furthers openness of judicial proceedings.” Doe v. Public Citizen, 749 F.3d 246, 274 (4th
Cir. 2014) (internal citations omitted). For that reason, few cases warrant anonymity, and few
litigants request it. See Doe v. Doe, 85 F.4th 206, 211 (4th Cir. 2023) (noting that litigant
anonymity should be “rare” and justified by “exceptional” circumstances (emphasis removed)).
The Fourth Circuit has outlined “guideposts for resolving requests to proceed
anonymously” “based on the circumstances of particular cases.” Doe v. Sidar, 93 F.4th 241, 247
(4th Cir. 2024). These “five nonexhaustive factors” include: (1) the reason the requesting party
seeks anonymity—specifically, whether “to avoid [] annoyance and criticism” or “to preserve
privacy in a matter of [a] sensitive and highly personal nature”; (2) whether denying anonymity
“poses a risk of retaliatory physical or mental harm to the requesting party or even more critically,
to innocent nonparties”; (3) “the ages of the persons whose privacy interests are sought to be
protected”; (4) “whether the action is against a governmental or private party”; and (5) “assessing
the risk of unfairness to the opposing party from allowing an action against it to proceed
anonymously.” James, 6 F.3d at 238.

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B. Motion for a Protective Order
Courts are empowered to “issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense” upon motion by a party. Fed. R. Civ. P.
26(c). Rule 26 also “provides for broad discovery.” Nallapati v. Justh Holdings, LLC, 2022 WL
274405, at *2 (E.D.N.C. Jan. 28, 2020); see also Fed. R. Civ. P. 26(b)(1). Therefore, the “standard
for issuance of a protective order is high.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 124
(D. Md. 2009). “A party moving for a protective order has the burden of making a particularized
showing of why discovery should be denied, and conclusory or generalized statements in the
motion fail to meet this burden.” Artis v. Murphy-Brown LLC, 2018 WL 3352639, at *2 (E.D.N.C.
July 9, 2018). [C]ourts have insisted on a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements, in order to establish good cause. This
recognizes that the existence of good cause for a protective order is a factual matter to be
determined from the nature and character of the information sought by deposition or interrogatory
weighed in the balance of the factual issues involved in each action. 8 Charles Alan Wright, Arthur
R. Miller & Richard L. Marcus, FED. PRACTICE & PROCEDURE § 2035 (2d ed. 2009).
III.

Discussion
Plaintiff cites “the highly sensitive and personal nature of this litigation, the politically

contentious subject of abortion, and the significant risk of retaliation against her and her family,
[and] extraordinary circumstances” in moving to proceed under a pseudonym. (Dkt. No. 5 at 1).
Defendants argue that Plaintiff cannot overcome the presumption of open judicial proceedings
where she has not offered any specific evidence as to a risk of retaliation to her and her family;
where she makes no attempts to disguise her practice; and where the four other plaintiff-medical
providers have opted not to proceed under pseudonyms. (Dkt. No 61 at 4-5; Dkt. No. 62 at 3).
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A district court in this Circuit addressed a motion to proceed under a pseudonym in
Women’s Health Center of West Virginia v. Sheth, et al., No. 2:23-CV-00079, 2023 WL 2054280
(S.D.W. Va. Feb. 16, 2023). There, a plaintiff-physician sought to proceed under a pseudonym
and obtain a protective order placing his identity under seal to the public in his suit against
government officials contesting the constitutionality of an abortion statute. Id. at *1. He cited
specific threats against the women’s health clinic where we worked as well as “the national history
of harassment and violence towards abortion care providers” as support for his motion, in addition
to retaliation within his profession and against his family members. Id. The district court found
that the plaintiff’s interest in privacy and fear of retaliation “strongly counsel[ed] in favor of
allowing [him] to proceed anonymously”—emphasizing that the plaintiff’s concern was genuine
“not just in a general sense, but also specific to the [Women’s Health Clinic] in West Virginia,
including the presence of armed protestors outside of the [clinic].” Id. at *2. The court also noted
that “claims against the government are more likely to be able to proceed in anonymity, because
‘actions against the government do no harm to its reputation.’” Id. The court found that the risk
of prejudice to the defendant government actors was minimal where plaintiff’s identity was
“irrelevant to the ‘purely legal’ merits of this case” and “[t]o the extent [plaintiff’s] qualifications
or history are relevant, they can be discussed without revealing his identity.” Id. (quoting Doe v.
Alaska, No. 96–35873, 1997 WL 547941, at *1 (9th Cir. Sept. 2, 1997)). The court found the third
factor—the plaintiff’s age—to be neutral. Id.
Here, the Court finds the five factors weigh in favor of Plaintiff’s motion to proceed under
a pseudonym and for a protective order to seal her identity to the public. See Doe, 85 F.4th at 212
(explaining that the Fourth Circuit has “only required that district courts consider the James
factors, and we have not prescribed any particular weight to any individual factor” but rather
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“entrusted district courts to consider each case individually to discern which factors should -- in
their discretion -- weigh most heavily.”) (emphasis in original). Abortion is undeniably a divisive
personal and political issue. Doctors and clinics who provide medical care have long been targets
of harassment, and the Court finds Plaintiff’s expressed concern of retaliation against herself and
her children compelling where she has been the target of threatening mail and doxing by antiabortion activists. (Dkt. No. 66 at 4). For the same reason, the Court finds the second factor—the
risk of physical or mental harm to plaintiff and to her children—weighs in favor of allowing her
to proceed anonymously. The third factor is neutral as to Plaintiff, but the Court considers that it
weighs in her favor given her desire to protect her children from harassment and retaliation by
remaining anonymous. The fourth factor weighs in Plaintiff’s favor because “[a]ctions against the
government do no harm to its reputation, whereas suits filed against private parties may damage
their good names and result in economic harm.” Doe v. Pittsylvania Cnty., Va., 844 F. Supp. 2d
724, 730 (W.D. Va. 2012). Finally, the Court does not find a threat of prejudice to Defendants by
allowing Plaintiff to proceed anonymously because Plaintiff will disclose her identity to
Defendants, which does not threaten to hobble Defendants’ discovery efforts. The public will
retain access to all judicial records in this case with the exception of Plaintiff’s identity. Based on
the circumstances of this case, the Court finds that Plaintiff’s stated interests in protecting herself
and her family against retaliation and harassment can be balanced with the public’s interest in the
openness of judicial proceedings by granting Plaintiff’s motion to proceed under a pseudonym and
for a protective order limiting disclosure of her identity to counsel for Defendants and this Court.
IV.

Conclusion
In light of the foregoing, Plaintiff’s motion is GRANTED.
AND IT IS SO ORDERED.
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_s/ Richard M. Gergel___
Richard Mark Gergel
United States District Judge
March 11, 2025
Charleston, South Carolina

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