Can People Suing Sean Combs / P. Diddy for Sexual Assault Litigate as John or Jane Does? Judges Are Split

Many people have sued Sean Combs (P. Diddy) for alleged sexual assault in federal court in Manhattan (S.D.N.Y.); many of those have sued pseudonymously. So far:

[1.] Some judges have allowed the cases to go forward under a pseudonym (Doe v. Combs) until Combs’ lawyers enter an appearance and have an opportunity to oppose pseudonymity. The orders (see, e.g., here, here, here, and here) have mostly been short, but have offered at least some reasoning; here’s one from Judge Lewis Liman:

In determining whether a Plaintiff may proceed anonymously, “the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  A court should consider factors including whether the litigation involves matters that are “highly sensitive and of a personal nature,” “whether identification poses a risk of retaliatory physical or mental harm,” whether the defendant is prejudiced, whether any such prejudice “differs at any particular stage of the litigation,” whether any such prejudice “can be mitigated by the district court,” and the public interest.

Plaintiff has made a preliminary showing sufficient to permit the filing of the complaint and the issuance of a summons.  The nature of Plaintiff’s sexual assault allegations is highly personal, and Plaintiff states that Defendant Sean Combs threatened her with violence if she spoke of the alleged assault.  Given that Defendant is a public figure, revelation of Plaintiff’s identity may also lead to significant, potentially harmful attention from media and the public.  However, Defendants have a right to be heard, the Court must take the interests of the public into account, and “the balance between a party’s need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses.” Therefore, Plaintiff shall file a renewed motion to continue to proceed anonymously within 30 days after service of the complaint.  In the absence of a timely filed motion, the Court shall order the name of the Plaintiff be disclosed.

(Recall that the question in these cases is whether the plaintiff’s identity could be hidden by the public; the plaintiff’s name would of course have to be provided to the defendant, since otherwise the defendant wouldn’t be able to defend himself.)

[2.] But last week, Judge Mary Kay Vyskocil refused to allow pseudonymity, even before Combs’ lawyers entered an appearance:

Defendant Sean Combs is a famous record executive and rapper. He is currently detained in New York while awaiting trial on federal criminal charges. Plaintiff “Jane Doe” alleges that Combs raped her and threatened her life in 2004….

Rule 10 of the Federal Rules of Civil Procedure provides that a “complaint must name all the parties.” This Rule “serves the vital purpose of facilitating public scrutiny of judicial proceedings.” It “cannot be set aside lightly.” As the Second Circuit has explained, “The people have a right to know who is using their courts.” Indeed, this “right is ‘supported by the First Amendment.’”

In limited circumstances, a district court has discretion to grant an exception to the “general requirement of disclosure of the names of parties” to permit a party to proceed under a pseudonym. The question for the court is whether the plaintiff has a “substantial privacy” interest that “outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” The court must also consider the interests of the opposing party. Moreover, plaintiffs “seeking anonymity” must offer the court “more than just ‘mere speculation’” about the competing interests at stake….

The court goes through the various factors that the Second Circuit has identified as relevant to this weighing (in the Sealed Plaintiff v. Sealed Defendant decision); here is an excerpt of some of the key ones:

This Litigation Involves Highly Sensitive and Personal Allegations, but this Factor is Not Dispositive.

Plaintiff alleges that Combs raped her in frightening circumstances. Her allegations are “highly sensitive and of a personal nature,” and, therefore, the first Sealed Plaintiff factor weighs in Plaintiff’s favor. However, this factor is not dispositive. Simply put, “allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym.” Indeed, many courts in this District have denied motions to proceed under a pseudonym despite concluding that the plaintiff’s allegations were highly sensitive and personal….

Plaintiff’s Allegations of Harm Are Insufficient.

Plaintiff’s counsel asserts that “[t]here is a significant risk here of physical harm to Plaintiff that cannot be ignored.” However, counsel offers no support for this assertion beyond the allegation in the Complaint that, twenty years ago, Combs threatened Plaintiff’s life if she fled at the time of the alleged rape in 2004. As Plaintiff’s own submissions make clear, however, Combs has had no contact with Plaintiff for the approximately twenty years since the alleged rape and Combs is currently detained pending trial. As such, counsel has not identified any present threat of physical harm to Plaintiff.

Plaintiff’s counsel stresses that other alleged victims he represents “have stated … that Mr. Combs made threats of violence against them (or against the client’s family members) if the client disclosed to anyone the facts of the sexual assaults.” But there is no allegation that Combs ever threatened to harm Plaintiff, or anyone else, if Plaintiff disclosed her alleged rape. Plaintiff’s counsel is asking the Court to speculate that Combs presents a current risk of physical harm to Plaintiff, even though his is currently detained, but Plaintiff must offer the Court “more than just ‘mere speculation’” to justify proceeding anonymously.

Plaintiff’s counsel asserts, without offering any evidence, that Plaintiff would “certainly experience” mental harm “if she is forced to reveal her identity to the public.” In this context, “public humiliation” is not enough. Nor is it sufficient for plaintiff to put forth a “generalized” argument that revealing the identity of a victim of sexual assault would “further victimize” her. Accepting such an argument “would be to hold that nearly any plaintiff alleging sexual … assault could proceed anonymously,” which simply is not the law in this Circuit.

Rather, courts require “direct evidence linking disclosure of [plaintiff's] name to a specific … injury.” One court in this Circuit allowed a plaintiff to proceed anonymously where she submitted evidence from a medical professional who predicted that requiring disclosure of her name would cause “psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.” Even where such medical evidence is present, other factors may still tip the balance against permitting a plaintiff to proceed anonymously.

In all events, it is well-established that counsel’s “conclusory statements and speculation” about mental harm to Plaintiff are insufficient…. Yet Plaintiff’s counsel has not submitted evidence from any mental health professional, a sworn affidavit from Plaintiff, or any other evidence to support counsel’s bald assertion that disclosure of Plaintiff’s identity would injure her mental health. As such, Plaintiff has not carried her burden under governing law to show mental harm sufficient to justify anonymity.

The Court appreciates that Combs is a public figure and, therefore, Plaintiff is likely to face public scrutiny if she proceeds in her own name. The Court is not oblivious to the potential toll of such scrutiny on any litigant. However, Plaintiff’s interest in avoiding public scrutiny, or even embarrassment, does not outweigh the interests of both Combs and the public in “the customary and constitutionally-embedded presumption of openness in judicial proceedings.”

Plaintiff “has chosen to bring this lawsuit,” leveling “serious charges” against Combs and, as such, she “has put her credibility in issue.” Combs is, therefore, entitled to investigate her background and challenge her allegations and her credibility. Media outlets have a constitutional right to publish stories about this case.

The Court also notes that a number of other alleged victims have filed lawsuits in this District against Combs in their own names. See Ventura v. Combs et al., 23-cv-10098; Jones v. Combs et al., 24-cv-1457; McKinney v. Combs et al., 24-cv-3931; English v. Combs et al., 24-cv- 5090; Richard v. Combs et al., 24-cv-6848; Graves v. Combs et al., 24-cv-7201. All of these lawsuits involve sensitive allegations and expose the plaintiffs to scrutiny and embarrassment. Plaintiff has not shown that, unlike these other alleged victims, she is entitled to “the exceptional remedy of anonymity.” Finally, with respect to the [harm] factor, courts are especially concerned with “innocent non-parties.” Plaintiff does not contend that disclosure of her identity poses a risk of harm to any innocent non-parties….

Defendants’ Status as Private Parties Weighs Against Anonymity.

The fifth Sealed Plaintiff factor is whether the suit challenges the actions of the government or that of private parties. Courts are loathe to grant a motion to proceed anonymously against private parties. Combs and all of the other defendants are private parties. As such, factor five weighs against Plaintiff….

Prejudice to Defendants Weighs Against Anonymity.

In considering whether defendants would be prejudiced by a plaintiff proceeding under a pseudonym, courts have weighed “difficulties in conducting discovery,” the “reputational damage to defendants,” and the “fundamental fairness of proceeding anonymously.” Defendants likely would be prejudiced in all of these respects.

Plaintiff essentially argues, first, that Combs deserves to be sued anonymously because he allegedly raped and threatened a virtual stranger. However, in this posture, the allegations in Plaintiff’s Complaint are merely allegations, and the Court, at this stage, must not to make any assumptions about whether her allegations are true or false. Moreover, this first argument ignores that Combs is not the only defendant. Plaintiff is also suing a number of businesses, including Marriott International, Inc….

Plaintiff’s counsel “confidentially” disclosing Plaintiff’s name to defense counsel would not obviate the potential prejudice to Defendants. “Highly publicized cases can cause unknown witnesses to surface.” However, if Plaintiff’s name is kept from the public, “information about only one side may thus come to light.” In particular, “persons with information about [Plaintiff] or [her] allegations that would be helpful to [the] defense … likely would have no way of knowing” to come forward. This “asymmetry” between the parties “not only would prejudice [Defendants], but would hinder ‘the judicial interest in accurate fact-finding and fair adjudication.’”

Indeed, the potential prejudice to Defendants with respect to discovery is inseparable from the potential prejudice to their reputations and fundamental fairness. Plaintiff alleges that Combs engaged in heinous conduct and that the other defendants were complicit. If damaging information about only one side is aired through the litigation, Defendants cannot mitigate the damage to their reputations. Thus, courts in this Circuit have long stressed the fundamental unfairness of allowing a plaintiff to “make her accusations from behind a cloak of anonymity.” …

The Public Interest Weighs Against Anonymity.

As a rule, “lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.” There is undeniable public interest in the allegations against Combs and the identities of his accusers. This is not a case that involves “abstract challenges to public policies, but rather … particular actions and incidents.” Thus, “open proceedings … benefit the public as well as the parties.” Indeed, this is the kind of case that “further the public’s interest in enforcing legal and social norms.”

Plaintiff contends that the public interest favors granting her motion to proceed under a pseudonym so that victims of sexual assault will not be deterred from vindicating their rights. However, as noted above, a number of other alleged victims have already sued Combs in their own names in this District. As such, those plaintiffs obviously were not deterred by the long line of previous cases in which courts in this District have rejected motions to proceed under a pseudonym brought by alleged victims of sexual assault who have made the same argument about the public interest and possibility of deterrence [citing sexual assault cases against Tupac Shakur, Harvey Weinstein, and Kevin Spacey, where pseudonymity was likewise denied -EV].

Moreover, while there is a public interest in allowing a victim of sexual assault to vindicate her rights, there is a concomitant public interest in allowing “the accused publicly to confront the accuser.” The public interest in protecting the due process rights of the accused are particularly strong where, as here, an adult accuser is availing herself of the opportunity to revive a once-expired claim. If, notwithstanding that a number of other alleged victims have already sued in their own names, other potential plaintiffs are deterred by this decision from filing their own lawsuits, that is “an unfortunate result” of the fundamental, countervailing interests that generally require “plaintiff and others like her [to] seek vindication of their rights publicly.” …

The Balance of Interests Weighs Against Anonymity.

The Court concludes that the balance of interests at stake weighs strongly against granting Plaintiff’s motion to proceed under a pseudonym. The fundamental question is whether Plaintiff has a “substantial privacy” interest that “outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Plaintiff has an interest in keeping her identity private given the sensitive nature of her allegations, the potential for public scrutiny of her personal life, and her decision, thus far, not to speak publicly. But Plaintiff, who is an adult, has now decided to file a lawsuit in which she accuses a famous person of engaging in heinous conduct approximately twenty years ago and, further, accuses a number of businesses of complicity in that alleged conduct. Defendants have a right to defend themselves, including by investigating Plaintiff, and the people have a right to know who is using their courts. Plaintiff has not carried her burden to show that she is entitled to the exceptional remedy of anonymity….

[3.] Earlier this year, Judge Jessica Clarke took an intermediate position: She refused to allow plaintiff to proceed pseudonymously generally, but allowed pseudonymity for the determination of some purely legal questions:

The Court will, however, stay the effect of this Order until after the Court decides the pending motion for judgment on the pleadings. If the Court were to dismiss this action, it would do so for a purely legal reason, where Plaintiff’s identity is irrelevant to that decision. Furthermore, the prejudice to Defendants here is at its greatest if this matter were to proceed to discovery. Therefore, if this action survives a decision on Defendants’ motion, Plaintiff shall pursue this action using her legal name.

That motion for judgment on the pleadings was dismissed as moot once an amended complaint was filed, and was replaced by a motion to dismiss; that case is thus continuing, at least for now, under a pseudonym.

[4.] And these results in the Doe v. Combs cases are emblematic of how split courts are on pseudonymity in sexual assault cases generally—and on pseudonymity in many other contexts. You can check out a rough list, as of 2022, of courts that allowed sexual assault plaintiffs to proceed pseudonymously and courts that have rejected that, in Appendices 2a & 2b to my The Law of Pseudonymous Litigation; there are many cases in both camps.

Some of the cases might have factual twists that may explain why they come out differently from other cases. But as best I can tell, the main distinguishing factor, at least in most sexual assault pseudonymity claims, is the identity of the judge: Some judges are big on plaintiff privacy and on encouraging plaintiffs in such situations, and others are big on public access and fairness to defendants. (Consider, for instance, Judge Vyskocil’s decision denying pseudonymity to alleged Jeffrey Epstein victims suing the FBI for allegedly failing to properly investigate Epstein.)

Part of the reason is that federal appellate courts generally review such trial court decisions just for “abuse of discretion,” which is to say that opposite outcomes in cases with identical facts could both be upheld, on the grounds that either result is within the trial court’s discretion: Under this standard, circuit courts allow “‘a zone of choice within which’ the district court ‘may go either way.’” And the result is that some of Combs’ accusers—and other sexual assault plaintiffs—will get to proceed as Jane or John Does, and others won’t, with little real justification for the difference in treatment.

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