Re: 2/1/02 - [Marchese v. Dobry] Memorandum of law in opposition to motion of certain persons to be allowed to make an anonymous motion to quash
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
IN RE:
RICHARD MARCHESE,
plaintiff,
v.
GARY DOBRY,
defendant
Case No. 00CV5606
Judge Marovich
Magistrate Judge Levin
Northern District of Illinois
MEMORANDUM OF LAW IN OPPOSITION
TO MOTION OF CERTAIN PERSONS TO BE
ALLOWED TO MAKE AN ANONYMOUS MOTION TO QUASH
Mr. Dobry files this Memorandum of Law in opposition to the motion of certain persons to appear anonymously to make their motion to quash his subpoena to Raging Bull.
On December 7, 2001, Mr. Dobry issued a subpoena to Raging Bull to ascertain the identities of a large number of anonymous posters on the "AZNT" message board of Raging Bull. In telephone conversations between counsel for Mr. Dobry and counsel for Raging Bull, 68 names were voluntarily dropped by Mr. Dobry because Raging Bull had already produced its records as to those people in response to a subpoena, in this same case, issued by counsel for Plaintiff Richard Marchese.
On January 17, 2002, approximately eight persons (reflecting approximately 17 aliases) filed a Motion to Quash Discovery Subpoena. They also filed with their motion a motion to proceed using pseudonyms to prosecute their motion to quash subpoena issued to Raging Bull, Inc. This memorandum of law responds to that motion to proceed using pseudonyms.
The movants contend that they should be allowed to proceed under pseudonyms because:
The movants assert that they are residents of several states and other countries (p. 2). The movants assert that they are not witnesses except for "Janice Shell" who asserts she might be made a witness, but only to harass her (p.2).1 The movants assert that Raging Bull promises anonymity to posters, but, of course, subpoenas are an explicit exception to this policy. Since Raging Bull is not contesting the subpoenas this policy would not seem to be relevant. Furthermore, Raging Bull did not protest the subpoena issued in this case by the Plaintiff, Richard Marchese, for 68 names, many of which were not aliases of Gary Dobry.
The movants also assert that they are aware that the allegations of the Complaint against Dobry are that he made hundreds of obscenity-filled, vulgar and malicious diatribes against various individuals. They say they are afraid he might say similar things about them.
The movants contend that if Raging Bull produces this information it would impose an undue burden on them by invading their privacy. They assert Dobry’s sole motivation is to "intimidate and harass these individuals." They assert production of their identity will violate the First Amendment and violate the policy behind and the privacy interests protected by the Electronic Communications Privacy Act of 1986 ("ECPA") 18 U.S.C. 2701.
Mr. Dobry incorporates herein his Memorandum of Law in opposition to the motion to quash and the statements of facts therein.
Argument
There is little pertinent authority directly addressing the circumstances under which a witness (as opposed to a party) can appear in federal court anonymously, or under the use of a pseudonym. In the criminal context, a trial court has the discretion to withhold the names and address of jurors or witnesses in a capital case if the court believes that their lives are in jeopardy. 18 USC. 3432. Obviously, this high standard may not be applicable in a civil dispute.
In a civil context, there are several cases that address when a party can proceed anonymously, or under a pseudonym. Generally, the decision is left the discretion of the trial court who must weight the privacy interests asserted by the party seeking to remain unidentified against the presumption of an open, public adjudication of the claims in court. Still, in many of these decisions, the identify of the party was disclosed to the opponent, even if not to the general public. Roe v. Aware Woman Center for Choice Inc., 253 F3d 678 (11th Cir. 2001) (although party was allowed to proceed anonymously, the true identity was disclosed to opponent for discovery purposes with restriction that identity not be disclosed to the general public); Doe v. Bell Atlantic Business Systems Services, Inc., 162 F.R.D. 418 (D. Mass. 1995) (since opponent would be denied fundamental fairness and party’s alleged privacy interests were not substantial, plaintiff could not proceed anonymously); Doe v. United Services Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y. 1988) (plaintiff could proceed anonymously in claim against insurer since insurer already aware of plaintiff’s true identity).
In James v. Jacobson, 6 F. 3d 233 (4th Cir. 1993) the court stated in dicta, that the decision to allow a party or a witness to proceed anonymously was left to the sound discretion of the trial court after considering privacy or confidentiality interests of entity seeking to remain unidentified. The opinion suggests that the same standard would be applicable to both a witness and a party.
The burden of demonstrating a right to proceed anonymously in Federal Court rests on the party asserting a desire to remain anonymous. Doe v. Bell Atlantic Business Systems Services, Inc., 162 F.R.D. 418, 420 (D. MA. 1995). In Doe, the Court noted (P. 420):
A review of the relevant case law shows that many fictitious name cases involve the following circumstances:
1) plaintiffs challenging governmental activity;
2) plaintiff required to disclose information of the utmost intimacy; and/or
3) plaintiffs compelled to admit their intention to desire to engage in illegal conduct.
Courts have allowed plaintiffs to proceed anonymously in cases involving social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of plaintiff’s identity.
In Doe, the plaintiff alleged that her immediate supervisor as Bell Atlantic had sexually harassed her and ultimately sexually assaulted her (p. 419). The court held that she must disclose her true identity as condition of litigating in federal court (p. 422).
In the civil context the plaintiff instigates the action, and, except in the most exceptional cases must be prepared to proceed on the public record. The court is cognizant of the defendants’ concerns, and finds that it would be fundamentally unfair to allow plaintiff to make such serious allegations against them without standing, as they must, in a public forum.
The court finds that plaintiff has not demonstrated such a compelling need for privacy as to outweigh the rights of the defendants and the public to open proceedings.
In Doe v. Prudential Ins.. Co. of America, 744 F. Supp. 40 (D.R.I. 1990), the plaintiffs made a motion to proceed under fictitious names in a suit to recover insurance proceeds on the life of their son who had just died of AIDS. The court denied the motion applying the following test (p. 41):
In passing on the plaintiffs’ motion, the court must begin with the strong and well established presumption that pleadings filed with the court in connection with pending cases are public documents. That presumption may be rebutted by a showing that there is an overriding reason for confidentiality. One such reasons proffered the court must then balance the need for confidentiality against any public interest that may be served by requiring disclosure.
Permitting a witness to appear anonymously, not only as to the court but also as to the opponent deprives the opponent of any meaningful cross-examination and clearly raises the issue of whether the proceedings are fundamentally fair under the due process clause.
The Affidavits Are Defective - Anonymous Or Not
None of the affidavits conform to the format of Rule 56. Whether Rule 56 directly applies or not, it provides persuasive guidance. None of the affidavits indicate tha6t they are made on personal knowledge nor show that the affiant’s are competent. None of these anonymous affidavits are sworn before a notary. The two "signatures" of John Doe III, on his two affidavits, are plainly by different persons.
As Wright, Miller, Kane state in Federal Practice and Procedure, 2738, Vol 10B (West, 1998), (p. 237):
…..[B]ecause an affidavit is an ex parte statement by a witness whose demeanor cannot be observed, more reliable forms of proof should be used in place of or to supplement an affidavit when that is possible and appropriate.
"Rule 56 (e) provides that when affidavits are used to support or oppose a summary judgment motion, they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." These requirements are mandatory." (Wright & Miller, 2738 p. 328)
In Smith v. Walsh, 833 F. Supp. 844 (D.C. OK 1993), the court refused to accept hearsay information in an unassigned affidavit when accompanied by a signed affidavit of counsel that the affiant would not sign it. Similarly, the attorney’s signature was unavailing to place a proper fact issue before the court in Nakao v. Rushen, 580 F. Supp. 718 9D.C. Cal. 1984), on the merits 766 F. 2d 410 (9th Civ. 1985).
There is little on point authority concerning the validity of an anonymous affidavit. If an affidavit is unsigned, the federal courts have the discretion to disregard the affidavit. In re Weston Capital Markets, Inc., 184 B.R. 109 (Bank D. Or. 1995)(court imposed sanction on attorney for filing unsigned affidavit without informing court that affiant refused to sign affidavit and that no signed affidavit would be filed with the court); Henderson v. Clark Oil & Refining Corp., 639 F. Supp. 105 (N.D. III 1986) (where affidavit neither signed nor notarized court cannot consider it under Fed. R. Civ. Pro. 56(e)).
Signing an affidavit anonymously can be analogized to no signature at all. Therefore, the court could and Mr. Dobry’s urges should consider the affidavits as nothing more than unsworn statements.
Since 1976 it has been permissible in Federal Court to omit the notarization and submit an affidavit under penalty of perjury. Nevertheless, this Court should insist that affidavits with full proper identifications be filed under seal, sworn to before a notary public with full identification of those parties as a precondition of considering their motion in a Unite States District Court. This is also critical as to the foreign residents who may well not be United States citizens and hence, have no First Amendment rights.
In conclusion, Mr. Dobry urges this Court to deny the motion of the several movants to appear anonymously.
Respectfully submitted,
GARY DOBRY
By___________________
One of His Attorneys
Donald L. Johnson
33 North Dearborn Street
Suite 1401
Chicago, Illinois 60602
ARDC No. 1342460
Tobin M. Richter
53 West Jackson Boulevard
Suite 560
Chicago, Illinois 60604
ARDC No. 02333449
Notations on bottom of pages
1 - Non-citizen residents of other countries have no First Amendment rights. Positive, immediate identification, including proof; of citizenship is imperative as to these foreign residents.
2 - While it is Mr. Dobry’s assertion that the movants should be require as a threshold issue to properly identify themselves before being heard in a United States District Court, he recognizes, that such a disclosure would moot; the issue. Accordingly, this court should order filing under the seal of affidavits reflecting the true, full identity of the movants sworn to before notaries public. If the movants lose, the seal would be released. |
