Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 1 of 10 PageID 1397 IN THE UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JANE DOE NO. 1, JANE DOE NO. 2, JANE DOE NO. 3, § § § Plaintiffs, § § v. § § TEXAS CHRISTIAN UNIVERSITY, DR. § DIANE SNOW, DR. ANDREW § SCHOOLMASTER, DR. ROB GARNETT, § DR. DARRON TURNER, RUSSELL § MACK, LEIGH HOLLAND, and AARON § CHIMBEL, § § Defendants. § CIVIL ACTION NO. 3:20-cv-00106-M PLAINTIFFS’ OPPOSED MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYM AND FOR PROTECTIVE ORDER TO THE HONORABLE UNITED STATES DISTRICT JUDGE: COMES NOW, Plaintiffs Jane Doe No. 1, Jane Doe No. 2 and Jane Doe No. 3 (together “Plaintiffs”) and file this Motion for Leave to Proceed under Pseudonym and for Protective Order (the “Motion”), related to their Third Amended Complaint and Jury Demand (“Third Amended Complaint”) [Dkt. No. 44] filed against Defendants Texas Christian University (“TCU”), Dr. Diane Snow, Dr. Andrew Schoolmaster, Dr. Rob Garnett, Dr. Darron Turner, Russell Mack, Leigh Holland and Aaron Chimbel (together “Defendants”) and respectfully asks the Court to grant them permission to proceed under a pseudonym and to enter the accompanying protective order and in support thereof show the Court as follows: Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 1 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 2 of 10 PageID 1398 INTRODUCTION AND BACKGROUND Plaintiffs are African-American women and current and former students of TCU, together they filed their Complaint alleging violations of Title VI and VII of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; Section 504 of the Rehabilitation Act of 1973; Title III of the Americans with Disabilities Act of 1990; and state law prohibitions against fraud, including violations of the Texas Deceptive Trade Practices Act; negligence; assault; intentional infliction of emotional distress; false imprisonment; conspiracy; and breaches fiduciary duty and express warranty for services in connection with the extremely hostile racist and sexist environment they were subjected to at TCU and TCU sanctioned activities and based upon the conduct of TCU and the individual Defendants, including, importantly, the deliberate indifference and retaliation Plaintiffs’ complaints of racism and sexism and assault and harassment were met with. [See Dkt. No. 44 at ¶¶ 173-313]. Plaintiffs’ claims concern the most sensitive and personal information. See Id. Plaintiffs’ Complaint describes in detail the on-going hostile racist and sexist treatment Plaintiffs were subjected to and the psychological and physiological harm to Plaintiffs that resulted. Indeed, Plaintiffs’ Complaint describes intimate details regarding Plaintiffs’ encounters with physiological and psychological assault and harassment, including sexual assault and harassment at TCU, and Plaintiffs’ resulting suicidal ideations, physical disabilities, emotional distress and the medical help sought by Plaintiffs, to name a few. Id. Due to the nature of the case, Plaintiffs have already disclosed and will undoubtedly continue to disclose intimate information about themselves in connection with this lawsuit. Plaintiffs’ Complaint and the intimate personal information disclosed therein are deserving of protection, including Plaintiffs being permitted to proceed under pseudonym/anonymously. But, Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 2 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 3 of 10 PageID 1399 per usual, TCU has opposed Plaintiffs’ Motion demonstrating yet again that—in addition to the harm they have already caused Plaintiffs—they wish to strip Plaintiffs of their privacy to further oppress them and strip them of all dignity. ARGUMENT I. The court has the discretion to permit a party to proceed under pseudonym in order to protect the party from further harm. Generally, Federal Rule of Civil Procedure 10(a) requires a plaintiff to disclose his or her name in a complaint, however, a Court may grant a plaintiff leave to proceed anonymously in a lawsuit. FED. R. CIV. P. 10(a); Doe v. Stegall, 653 F. 2d 180, 186 (5th Cir. 1981). The Supreme Court of the United States has implicitly condoned anonymous plaintiffs, although it has never decided the issue of whether a plaintiff has a right to file a case under a pseudonym. The Federal Rules of Civil Procedure also do not explicitly address requests to proceed under a pseudonym, however, Federal courts, including the Fifth Circuit often allow plaintiffs to proceed under a pseudonym in cases alleging violations of Title IX of the Education Amendments of 1972 among other federal civil rights laws. See Doe v. Stegall, 653 F.2d at 181-82; See e.g., Jane Doe 11 v. Baylor Univ., No. 6:17-cv-00228, ECF 4 (Dec. 12, 2017). II. Relevant factors favor allowing Plaintiffs to proceed under pseudonyms. To decide whether plaintiffs may proceed using pseudonyms, the Fifth Circuit “requires a balancing of considerations calling for maintenance of a party's privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall, 653 F.2d at 186. In Stegall the court began its analysis by identifying three factors, which it clarified are not prerequisites to maintaining anonymity, which had been used previously and must be given “considerable weight.” Id. at 185-86. Those factors are: (1) whether plaintiffs seeking anonymity are suing to challenge a governmental activity; (2) whether prosecution of the suit will compel Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 3 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 4 of 10 PageID 1400 plaintiffs to disclose information of the utmost intimacy; and (3) whether plaintiffs are compelled to admit an intent to engage in illegal conduct. Id. After assessing the initial three factors, the Fifth Circuit went further and identified additional considerations, including public reaction and retaliation (“the Does may expect extensive harassment--and perhaps even violent reprisals” and “their personal beliefs and practices . . . have invited an opprobrium analogous to the infamy associated with criminal behavior”); and the “special vulnerability” of the plaintiffs. Id. Additionally, the Fifth Circuit has identified several types of cases with common facts where pseudonymous status is appropriate in cases alleging violations of Title IX of the Education Amendments of 1972 among other federal civil rights laws. See e.g., Jane Doe 11, No. 6:17-cv00228, ECF 4. In this case, the initial Stegall factors and additional considerations weigh in favor of pseudonymity and protective order. First, Plaintiffs are engaged in a lawsuit alleging racial and sexual harassment, the underlying facts of which have forced and will continue to force Plaintiffs to reveal information of the “utmost intimacy’ in order to prosecute their claims. Second, the existing and anticipated public reaction and retaliation, based on the history of harassment of those who have dared speak out against TCU’s racist and sexist environment as detailed in Plaintiffs Complaint as well as TCU’s present culture, supports the need to preserve Plaintiffs’ anonymity. Moreover, the stigma surrounding persons with disabilities, mental health issues and survivors of assault, including the physical (i.e., sexual) harassment and assault suffered by Plaintiffs, supports the need to preserve Plaintiffs’ anonymity. Conversely, Defendants and the public stand to gain very little by publicly identifying Plaintiffs in this lawsuit. Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 4 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 III. Page 5 of 10 PageID 1401 Plaintiffs will be forced to reveal information of the “utmost intimacy” if they are required to proceed without pseudonyms. In order to prosecute their claims and state their injuries, Plaintiffs have already been forced to reveal private information about their personal medical history, including experiences with declining psychological and physiological health (i.e., suicidal ideations), disabilities and sexual and other physical assault, among other information of the “utmost intimacy”, which Plaintiffs have suffered and continue to suffer at the hands of TCU and its agents. [See Dkt. No. 44]; see also Stegall, 653 F.2d at 186. The continued prosecution of this lawsuit will likely require Plaintiffs discussion of even more thoughts and feelings, humiliating—and indeed dehumanizing—situations, medical information, and psychological and physiological diagnoses and treatment, among other things in connection with racial and sex-based discrimination Plaintiffs were subjected to and the injury that followed. If this Court does not allow Plaintiffs to proceed under pseudonyms, they would be required to disclose information of the utmost intimacy and would risk suffering the injury identified [Dkt. No. 44 at —further humiliation, distress and declining psychological and physiological as a result of the acts and omissions of Defendants as alleged in the Third Amended Complaint. [See Dkt. No. 44]. Indeed, Plaintiffs have alleged that they enrolled at TCU to acquire educational skills and further career opportunities, but instead fell victim to racial and sexual discrimination, as well as psychological and physiological abuse. Id. The pleading of this lawsuit required disclosure of factual allegations that encompass fears of retaliation and further abuse from the Defendants as well as continued psychological and physiological health decline. Id. To force former and current TCU students who are victims of the pervasively racist and sexist environment promoted by TCU to publicly disclose their identities would be devastating when compounded with the trauma already suffered by Plaintiffs and would only serve to deter future persons from seeking legal Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 5 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 6 of 10 PageID 1402 redress for their encounters with discrimination, assault and harassment at the hands of TCU and its agents. Fifth Circuit courts have granted plaintiffs the right to proceed under pseudonym in similar instances where a plaintiff alleges that he or she suffered and continues to suffer, psychologically and physiologically as a result of the events, underlying their Complaint as is typical in cases involving harassment and assault. See Doe v. El Paso Cty. Hosp. Dist., No. EP-13-CV-00406DCG, 2015 WL 1507840, at *5 (W.D. Tex. Apr. 1, 2015) (granting anonymity to plaintiffs in assault case where psychological harm and humiliation was at issue); see, e.g., Spoa, LLC, 2013 WL 5634337, at *3 (finding that ordering a victim of attempted assault “to proceed under her legal name in court documents pose[d] needless risk of mental harm”). IV. Plaintiffs risk harassment, retaliation, intimidation, and violence if their identities are made public. Plaintiffs face a very real threat to their physical and mental wellbeing if their identities are made public. As stated above, much of Plaintiffs’ injuries relate to psychological and physiological health decline that resulted from Defendants’ conduct in refusing to address the hateful culture brewed on campus. And Plaintiffs’ Complaint details the lengths to which TCU and the TCU community have gone in order to defend its racist and bigoted legacy against those who dare speak against it, including death threats and threats of physical harm. [Dkt. No. 44]. Plaintiffs reasonably fear harassment, retaliation, intimidation and violence based on TCU’s historical stance (or lack thereof) on addressing the hateful conduct of its community members. Moreover, Jane Doe No. 1 is still a student at TCU and must continue to engage with the TCU community, who may treat her differently if her identity is revealed. See e.g. Doe v. United Behavioral Health, No. CIV.A. 10-5192, 2010 WL 5173206, at *1 (E.D. Pa. Dec. 10, 2010) (allowing plaintiff to proceed under pseudonym where plaintiff was presently attending college Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 6 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 7 of 10 PageID 1403 and feared that her professors and other students would treat her differently, and unfavorably, if they were aware of the details of her mental health.). Indeed, it given the nature of this lawsuit anonymity is necessary to protect Plaintiffs from “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.” Doe v. Hallock, 119 F.R.D. 640, 644 (S.D.Miss. 1987). V. There is no potential unfairness to Defendants and the minimal public interest consideration do not override the need for pseudonymity. In opposition to the above-mentioned factors, the Court must consider “the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall, 653 F.2d at 186. While customarily courts favor openness, much of this custom stems from practical considerations, like the importance of defendants knowing plaintiffs' identities in order to develop a robust defense. Federal courts recognize that “[i]t is also relevant to consider whether the defendants are being forced to proceed with insufficient information to present their arguments against the plaintiff's case.” Citizens for a Strong Ohio v. Marsh, 123 F. App’x 630, 636 (6th Cir. 2005) (citing Doe v. Porter, 370 F.3d 558, 561 (6th Cir. 2004)). That is not the case in the instant matter. Defendants fully know the indemnity of Plaintiffs. In fact, Plaintiffs privately disclosed Jane Doe Nos. 1 and 3’s identities to TCU nearly a year ago, when it was made aware of the impending lawsuit. Additionally, Plaintiffs’ Complaint alleges facts with sufficient specificity such that Defendants are able to identify Plaintiffs from their recollection of the Defendants’ alleged investigations or a simple review of their files. [See Dkt. No. 23-36]. Plaintiffs’ also accommodated Defendants’ request for extra time to investigate and identify the Plaintiffs’ names and allegations. [See Dkt. No. 5]. Moreover, Defendants have already demonstrated their full knowledge of Plaintiffs’ identities via their various motions to dismiss. Id. Defendants failed to object to Plaintiffs’ anonymity in crafting their motions, and instead moved to wholesale dismiss Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 7 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 8 of 10 PageID 1404 Plaintiffs’ complaints with factual assertions and challenges that could only have been made with full knowledge of Plaintiffs’ identities. Further, though there is no question that TCU is aware of the identity of Plaintiffs, Plaintiffs are happy to send a confidential letter to Defendants or to the Court identifying Plaintiffs. Thus, in this case, allowing Plaintiffs to proceed anonymously will not prejudice Defendants. See, e.g., Doe v. Barrow Cnty., 219 F.R.D. 189, 194 (N.D. Ga. 2003) (instructing that when there is little risk of prejudice to defendants, a considerable weight is lifted from the side of the scales opposed to anonymity). Additionally, the presumption of openness in judicial proceedings is “constitutionallyembedded” in the sense that First Amendment guarantees are implicated. See Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555 (1980) (addressing the closure of a criminal trial to the public); but see Doe v. Sante Fe Indep. Sch. Dist., 933 F. Supp. 647, 649--50 (S.D. Tex. July 22, 1996) (noting that while some Circuit Courts have extended the Richmond Newspaper holding to civil trials, the issue remains unresolved by the Supreme Court). But, as the Fifth Circuit has noted, “[t]he equation linking the public's right to attend trials and the public's right to know the identity of the parties is not perfectly symmetrical.” Stegall, 653 F.2d at 185. And “party anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them. The assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name.” Id. In any event, as stated above, the normal practice of disclosing the parties' identities yields ‘to a policy of protecting privacy in a very private matter. Id. In this case, the public will retain the right to access much of the court proceedings even if Plaintiffs are granted this Motion. In fact, TCU itself has indicated that it has “docket watchers” and—like clockwork—TCU360.com publishes those court proceedings it deems favorable to Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 8 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 9 of 10 PageID 1405 Defendants to its many followers. Unlike TCU, and its use of its media outlet (among other things) to influence the public, Plaintiffs in this case have sought to protect their identity from the inception of this lawsuit and have not engaged with the press or otherwise participated in media coverage of this lawsuit. See Doe v. El Paso Cty. Hosp. Dist., No. EP-13-CV-00406-DCG, 2015 WL 1507840, at *6 (W.D. Tex. Apr. 1, 2015) (noting that plaintiff’s restraint from media contact and interaction weighed in favor of anonymity). Thus, the public’s interest in knowing the pertinent facts of the lawsuit will not be impaired. Plaintiffs' personal identities add nothing to the public discourse, while revealing their identities risks significant harm. On balance, all factors favor allowing Plaintiffs to proceed under pseudonyms. CONCLUSION AND PRAYER For the foregoing reasons, Plaintiffs respectfully request that their Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order be granted. Respectfully submitted, ANOZIE, LLP /s/ Nnamdi M. Anozie Nnamdi M. Anozie State Bar No. 24087107 nma@anoziellp.com 6120 Swiss Avenue, #140383 Dallas, Texas 75214 T: (214) 606-3440 /s/ Keron A. Wright Keron A. Wright State Bar No. 24075311 Keron.wright@wrightlegalpllc.com Wright Legal Services PLLC ATTORNEYS FOR JANE DOE NO. 1, JANE DOE NO. 2, & JANE DOE NO. 3 Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 9 Case 3:20-cv-00106-M Document 62 Filed 09/11/20 Page 10 of 10 PageID 1406 CERTIFICATE OF CONFERENCE I hereby certify that on September 10, 2020, Plaintiffs’ Counsel, Nnamdi Anozie, conferred with Defendants counsel, George Haratsis. Mr. Haratsis indicated that Defendants oppose Plaintiffs’ Opposed Memorandum in Support of Motion to Proceed under Pseudonym and for Protective Order. /s/ Nnamdi M. Anozie Nnamdi M. Anozie CERTIFICATE OF SERVICE I certify that a copy of the foregoing pleading has been served on counsel identified below in accordance with the Federal Rules of Civil Procedure on the 11th day of September 2020: Via E-mail: gharatsis@mcdonaldlaw.com Via E-mail: rdivin@mcdonaldlaw.com Via Email:jlittman@mcdonaldlaw.com George Haratsis Rory M. Divin Jennifer N. Littman McDonald Sanders, A Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 Telephone: (817) 336-8651 Facsimile: (817) 334-0271 /s/ Nnamdi M. Anozie Nnamdi M. Anozie Plaintiffs’ Opposed Motion for Leave to Proceed Under Pseudonym and for Protective Order Page 10