Earlier today I wrote about the Dragon Quest Productions cases in the Northern District of Illinois. There’s something about one of these cases that warrants further discussion. Thanks to one of my readers for bringing this issue up. I’ve been receiving a lot of search traffic regarding these cases, so this may be of some benefit to John Doe defendants in these cases.
In Dragon Quest Productions, LLC v. Does 1-80, Case No. 1:12-cv-07815, an anonymous Motion to Quash was entered. This motion was not for a single Doe – it was brought on behalf of all John Doe defendants. There was no identifying information with the motion that might identify the movant, and the movant did not apparently ask for permission to proceed anonymously before filing their motion.
The motion was denied by Judge Lefkow. She made the ruling in a minute order, meaning we don’t have much insight into the decision, but let’s investigate why she denied the motion by looking at some case history in the 7th Circuit.
The United States Court of Appeals for the Seventh Circuit has appellate jurisdiction over the Northern District of Illinois (N.D. Ill.). In a nutshell, this means that the Seventh Circuit can review decisions and change outcomes of its lower courts, including the N.D. Ill. Decisions in an appellate court set binding precedent meaning the federal courts within the circuit must following their guidance, even if they don’t agree with the decision.
Let us look at some history of how the 7th circuit has dealt with anonymous movants and the use of pseudonyms.
In Coe. v. County of Cook, 162 F. 3d 491 (7th. Cir 1998) (Note: “Coe” is a pseudonym like “Doe”) the court specifically criticized a Plaintiff for using pseudonyms, stating:
“We have criticized the overuse of pseudonyms in federal litigation, pointing out that the public has a right to know who is utilizing the federal courts that its tax dollars support. In a few cases a justified interest in privacy warrants concealment of a litigant’s name. But not in most cases (including Doe) and not in this one.”
In Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997)., the same court said:
“Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.”
And in Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005):
“The public has an interest in knowing what the judicial system is doing, an interest that is frustrated when any part of litigation is conducted in secret.”
It’s probably clear at this point: the 7th Circuit frowns upon anonymous litigation. Note that in each of the above cases, the anonymous party was a Plaintiff. Does that necessarily matter? How have these decisions impacted “copyright trolling” cases and the identities of defendants in the 7th Circuit?
Let us turn to Patrick Collins, Inc. v. John Does 1-13, Case No. 1:12-cv-00844., in Indiana Southern District Court (a district court falling within the 7th circuit.) This was a copyright trolling case. In that case, John Doe defendant #8 moved to proceed anonymously. The request was denied by Judge Dismore:
“John Doe 8 argues he should be permitted to proceed anonymously primarily due to the potential embarrassment and harm from being publically, and erroneously, linked to the illegal downloading of pornography. However, this does not appear to be a case involving “disclosure of information of the utmost intimacy.”
Judge Dinsmore laid out specific critera for determining if “a party’s interest to privacy is so significant as to outweigh the strong presumption favoring identification of litigants”. These are the factors:
(1) whether the party is challenging governmental activity;
(2) whether the party’s action requires disclosure of information of the utmost intimacy;
(3) whether the action requires disclosure of the party’s intention to engage in illegal conduct;
(4) whether identification would put the party at risk of suffering physical or mental injury;
(5) whether the opposing party would be prejudiced by allowing the party to proceed anonymously; and
(6) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.
In the same district, in AF Holdings v. John Doe, Case No. 1:12-cv-04222, a John Doe defendant moved to proceed under a pseudonym, arguing that AF Holding’s subpoena sought “privileged or other protected matter” – in other words, on privacy grounds. The argument failed. In the same district, in Hard Drive Productions v. Does 1-48, Case No 1:11-cv-09062, the court stated:
“courts have recognized that because internet subscribers must convey their identity and other information to an ISP in order to establish an account, they do not have a reasonable expectation of privacy in their subscriber information.”
In the same district, in Sunlust Pictures, LLC. v. Does 1-75, Case No. 1:12-cv-01546, Judge Tharp granted a John Doe defendant leave to proceed under a pseudonym, finding:
After reviewing the circumstances of this case, the Court finds that it involves “matters of a sensitive and highly personal nature,” that the harm to the public interest in allowing Doe to remain anonymous at this stage of the litigation is small, and that Sunlust will not be unfairly prejudiced by that course of action.
In the 7th Circuit, the case law is clear: If you want to proceed anonymously, you should ask the court for permission and have a good reason laid out. Specifically, in lawsuits involving allegations involving pornography, privacy concerns can be raised, but they may not always be successful.
The anonymous John Doe who filed the Motion to Quash in Dragon Quest Productions, LLC v. Does 1-80 apparently did NOT move to proceed anonymously before filing their anonymous motion, and it was struck down. Note that Judge Lefkow did permit the Doe to refile, provided they reveal their identity. She did NOT mention applying for leave to proceed anonymously, which is also a reasonable option.
Tagged: 1:12-cv-07815, 7th cir, Dragon Quest Productions, Illinois, privacy
