(The opinions expressed here are those of the author, a columnist for Reuters.)
By Alison Frankel
NEW YORK Nov 15 (Reuters) - A California actress sued Harvey Weinstein and The Weinstein Company on Tuesday, alleging that the producer raped her in 2016 in a Beverly Hills hotel room after inviting her to a meeting to discuss a role in a Weinstein television production.
In a statement addressing the lawsuit, Weinstein representatives said that he “unequivocally denied” any allegations of nonconsensual sex and “has further confirmed that there were never any acts of retaliation against any women for refusing his advances.” Weinstein, according to the statement, has said in response to all on-the-record allegations that he believes all of his relationships were consensual.
The actress who sued Tuesday is not on the record. Her complaint, filed by Gloria Allred of Allred Maroko & Goldberg, refers to her as Jane Doe, rather than using her real name. Weinstein’s representatives suggested in their statement on the suit’s allegations that the actress’s anonymity restricts his ability to defend himself because “Mr. Weinstein obviously can’t speak to anonymous allegations.”
That’s a fair point. In our civil justice system, the price of admission is supposed to be public exposure. Court records are presumed to be open, under centuries-old common law, and defendants have a right to refute the allegations against them. Typically, filing a suit entails identifying yourself.
There are, however, exceptions to that rule. In both state and federal court in California, judges have discretion to allow plaintiffs to litigate anonymously. And it appears that the women suing Harvey Weinstein are counting on courts to exercise that discretion.
In addition to the anonymous actress who sued the producer on Tuesday, Weinstein and the two companies he founded were also sued Wednesday by an unidentified actress who claims, in a proposed class action, that the companies covered up the producer’s misconduct. (Weinstein representatives did not immediately respond to a Reuters query on the case filed Wednesday.)
The proposed class action is in federal court in Los Angeles, where the 9th U.S. Circuit Court of Appeals in 2000 provided a test for when plaintiffs can use a pseudonym like Jane Doe in Does v. Advanced Textiles (214 F.3d 1058).
There are three situations, the court said, in which anonymity can be justifiable: when plaintiffs are at risk of retaliation if they are named in the suit; if using their real names would compromise their privacy in a sensitive, personal matter or if plaintiffs would be exposed to criminal prosecution by identifying themselves.
In those scenarios, the 9th Circuit said, judges can grant anonymity if they conclude the need to shield the plaintiff’s identity outweighs potential prejudice to the defendant and the public interest in knowing who the plaintiff is.
Dozens of federal judges have since allowed plaintiffs in California (and elsewhere in the 9th Circuit’s jurisdiction) to sue anonymously, in cases ranging from labor disputes in which workers said they’d be fired if they revealed their names to sexual abuse claims against religious leaders.
Judges do not always grant anonymity. A San Francisco federal judge concluded earlier this year, for instance, that the public interest in court proceedings outweighed the risk of harm or embarrassment to NFL cheerleaders suing the league for antitrust violations. But my review of Westlaw citations indicates that courts tend to be sensitive to protecting the privacy of plaintiffs claiming to be victims of sexual assault.
The actress who sued Weinstein on Tuesday brought her case in Los Angeles Superior Court, not federal court. California state courts have not established as clear a test as the 9th Circuit’s Advanced Textiles precedent for allowing anonymous litigation.
According to the nonprofit Without My Consent, which tracks state law on the use of pseudonyms in civil litigation, California judges frequently permit plaintiffs to sue under their initials or under pseudonyms “when a plaintiff would be further stigmatized by disclosing his or her name in court documents,” especially in cases involving sexual allegations.
So, for example, two former Boy Scouts suing Los Angeles in California state court for alleged sexual abuse by a city police officer during a scouting program were allowed to proceed as John Does. Two elementary school students in Sacramento sued the school district as Jane and Susan Doe, claiming abuse by a physical education teacher. A girl claiming the Ventura school system failed to protect her from sexual assault by classmates sued under her initials, A.M.
Will the actress suing Weinstein be able to maintain her anonymity? That’s really two different questions: Can she shield her identity from the defendants? And can she remain publicly anonymous?
Neither the Allred firm nor Weinstein’s representatives responded to my request to comment on the actress’s anonymity. But the complaint contains some details that may help the defendants figure out who she is. It includes specifics about where she met with Weinstein in the spring of 2016 - at the Montage Hotel - and the television series they discussed, “Marco Polo.” Those seem to be identifying details, assuming there was actually a meeting.
Even if the defendants uncover her identity, however, the actress can assert a right to shield her claims from public attention because they involve sensitive, private material. Then, if the defendants oppose her use of a pseudonym, she will have to convince the court that her privacy outweighs the public’s interest in knowing who she is.
Reporting by Alison Frankel. Editing by Alessandra Rafferty.