UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK¶
JANE DOE,¶
Plaintiff¶
v.¶
Case No. 19 Civ. 8673¶
DARREN K. INDYKE and RICHARD D. KAHN, in their capacities as executors of the ESTATE OF JEFFREY E. EPSTEIN,¶
Defendants.¶
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYM¶
Roberta A. Kaplan¶
Julie E. Fink¶
Jenna M. Dabbs¶
Justin Horton¶
Alexandra K. Conlon (admission pending)¶
KAPLAN HECKER & FINK LLP¶
350 Fifth Avenue, Suite 7110¶
New York, New York 10118¶
Telephone: (212) 763-0883¶
Facsimile: (212) 564-0883¶
Attorneys for Plaintiff Jane Doe¶
TABLE OF CONTENTS¶
| PRELIMINARY STATEMENT | |
|---|---|
| STATEMENT OF FACTS | 3 |
| ARGUMENT | 6 |
| A. The Risks to Plaintiff Favor Allowing Her to Proceed Under A Pseudonym | 8 |
| B. Public Policy and the Public Interest Favor Protecting Plaintiff's Privacy | 10 |
| C. Allowing Plaintiff to Proceed Pseudonymously Will Not Prejudice Defendant | 11 |
| D. PlaintiffJane Doe Has Diligently Worked to Keep Her Identity Confidential And | |
| There is No Alternative Mechanism For Protecting Her Confidentiality | 12 |
| CONCLUSION | 13 |
TABLE OF AUTHORITIES¶
| Doe 1 v. United States, | PAGE(S) CASES |
|---|---|
| 359 F. Supp. 3d 1201 (S.D. Fla. 2019) Doe #1 v. Syracuse Univ., | 4, 5 |
| No. 18-cv-496, 2018 WL 7079489 (N.D.N.Y. Sep. 10, 2018) Doe No. 2 v. Kolko, | 11 |
| 242 F.R.D. 193 (E.D.N.Y. 2006) Doe v. Colgate Univ., | 8, 10, 12 |
| No. 15-cv-1069, 2016 WL 1448829 (N.D.N.Y. Apr. 12, 2016) Doe v. Epstein, | 8, 9 |
| No. 08-cv-80119 (S.D. Fla. Aug. 7, 2009), ECF No. 253 Doe v. Epstein, | 1, 7 |
| No. 08-cv-80893 (S.D. Fla. Oct. 6, 2008), ECF No. 15 Doe v. Fedcap. Rehab. Services, Inc., | 1, 8 |
| No. 17-cv-8220, 2018 WL 2021588 (S.D.N.Y. Apr. 27, 2018) Doe v. Greiner, | 13 |
| 662 F. Supp. 2d 355 (S.D.N.Y. 2009) Doe v. Indyke, | 8 |
| No. 19-cv-7772 (S.D.N.Y. Aug. 20, 2019), ECF No.1 Doe v. Skyline Automobiles Inc., | 4 |
| 375 F. Supp. 3d 401 (S.D.N.Y. 2019) Doe v.M, | 8 |
| 105 F. Supp. 2d 40 (E.D.N.Y. 1999) Doe v. Solera Capital LLC, | 12 |
| No. 18-cv-1769, 2019 WL 1437520 (S.D.N.Y. Mar. 31, 2019) Doe v. Szul Jewelry, Inc., | 9, 12 |
| No. 0604277/2007, 2008 WL 2157893 (N.Y. Cty. Sup. Ct. May 8, 2008) Does I thru XXIII v. Advanced Textile Corp., | 7 |
| 214 F.3d 1058 (9th Cir. 2000) | 9-10 |
| E.W. v. N.Y. Blood Ctr., | |
|---|---|
| 213 F.R.D. 108 (E.D.N.Y. 2009) Jane Doe I et at v. Epstein et at, | I 1, 12 |
| No. 19-cv-7675 (S.D.N.Y) Jane Doe 43 v. Epstein et at, | 5 |
| No. 17-cv-616 (S.D.N.Y. Apr. 5, 2017), ECF No. 28 Jane Doe No. 103 v. Epstein, | I, 7 |
| No. 10-cv-80309 (S.D. Fla. Mar. 9, 2010), ECF No. 5 | 1, 8 |
| Jeffrey Epstein v. Scott Rothstein, | and L.M., |
| No. 50-2009-CA-040800 (Fla. Cir. Ct. Palm Beach Cty. Dec. 7, 2009), ECF No. 5 | 4 |
| No. 19-cv-07772 (S.D.N.Y.) L.H. v. Schwanenegger, | 5 |
| No. 06-cv-2042, 2007 WL 662463 (ED. Cal. Feb. 8, 2007) | 9 |
| No. 19-cv-07773 (S.D.N.Y.) | 5 |
| No. 19-cv-07772 (S.D.N.Y.) Roe v. Wade, | 5 |
| 410 U.S. 113 (1973) Sealed Plaintiff v. Sealed Defendant, | 6 |
| 537 F.3d 185 (2d Cir. 2008) United States v. Epstein, | passim |
| No. 19-cr-490 (S.D.N.Y. July 2, 2019), ECF No. 2 United States v. Epstein, | 2 |
| No. 19-cr-490 (S.D.N.Y. Jul. 12, 2019), ECF No. 11 United States v. Epstein, | 5 |
| No. 19-cr-490 (S.D.N.Y. Jul. 12, 2019), ECF No. 53 United States v. Epstein, | 7 |
| No. 19-cr-490 (S.D.N.Y. July 18, 2019), ECF No. 32 VE v. Nine East 71st Street et at, | 5, 9 |
| No. 19-cv-7625 (S.D.N.Y.) | 5 |
STATUTES¶
RULES¶
Plaintiff Jane Doe ("Plaintiff'), by her undersigned attorneys, respectfully submits this memorandum of law in support of her motion for leave to proceed under a pseudonym, until such time as the Court may order her name to be disclosed.'¶
PRELIMINARY STATEMENT¶
It can be unimaginably difficult for any person to publicly allege that they were sexually abused as a child. For Jeffrey Epstein's victims, the burden is extraordinary. Epstein's criminal sexual assault of young girls has become a public spectacle—garnering an extraordinary amount of public attention since Epstein's arrest on July 6, 2019, and his untimely death on August 10, 2019. And even before his most recent arrest, Epstein and his associates—many of whom are named in various civil complaints-used their vast resources and connections to harass and retaliate against any women who came forward to share their stories or seek help through courts.¶
It is therefore not surprising that countless Epstein victims kept silent for decades. For those brave women who did come forward, courts have routinely allowed them to do so pseudonymously, ensuring that they could vindicate their rights without public prying or fear of retaliation. See, e.g., Jane Doe 43 v. Epstein et al., No. 17-cv-616 (S.D.N.Y. Apr. 5, 2017), ECF No. 28; Jane Doe No. 103 v. Epstein,10-cv-80309 (S.D. Fla. Mar. 9, 2010), ECF No. 5; Doe v. Epstein, No. 08-cv-80119-1CAM (S.D. Fla. Aug. 7, 2009), ECF No. 253; Doe v. Epstein, No. 08 cv-80893 (S.D. Fla. Oct. 6, 2008), ECF No. 15 at 2-3.¶
Plaintiff Jane Doe is one of Epstein's many victims. She kept Epstein's abuse a secret for most of her life until she recently agreed to confidentially assist the United States Attorney's¶
I Plaintiff understands that at some point issues may arise regarding how to proceed with discovery of her claim. At that time, counsel for Plaintiff intend to meet and confer about these issues with counsel for Defendants and will bring disputes (if any) to the Court for resolution as appropriate.¶
Office for the Southern District of New York in its investigation of Epstein's crimes. Plaintiff was identified as "Minor Victim-1" in the indictment in United States v. Epstein, No. 19-cr-490 (S.D.N.Y) (the "Indictment"), which details Epstein's assault of her and others beginning when she was only fourteen years old. See Indictment, United States v. Epstein, No. 19-cr-490 (S.D.N.Y. July 2, 2019), ECF No. 2. Plaintiff expects to continue to cooperate in the Government's stated ongoing investigation of Epstein's co-conspirators, see Statement of Manhattan U.S. Attorney on the Death of Defendant Jeffrey Epstein (Aug. 10, 2019), https://www.justice.gov/usao-sdny/pr/statement-manhattan-us-attorney-death-defendant-jeffreyepstein (1OJur investigation of the conduct charged in the Indictment—which included a conspiracy count — remains ongoing."), and through this action seeks damages for the immense injuries she has and continues to suffer.¶
The potential harm to Plaintiff if her identity were made public is manifest. Litigation will expose some of the most intimate and humiliating moments of Plaintiff's life, furthering her ongoing psychological harm and injuring her family and her young child, who is unaware of the abuse Plaintiff suffered. The public scrutiny and attention paid to her would be profound and exacerbate the harm. And the risk to her of retaliation—not to mention the risk of potential interference with the Government's investigation—remains notwithstanding Epstein's death.¶
While in some cases the public interest or matters of fairness counsel against permitting anonymity, none of those concerns are present here. There is no public interest in revealing the identity of one of Epstein's many victims; to the contrary, allowing Plaintiff to proceed pseudonymously fosters the public interest in having victims come forward. Further, revealing Plaintiff's identity could interfere with the Government's ongoing investigation of Epstein's associates. Likewise, there is no harm to Epstein's estate in allowing her to proceed¶
anonymously. The Court can establish procedures by which the estate will have the information necessary to defend the case, while avoiding public harassment of Plaintiff.¶
Accordingly, and for all the reasons set forth below, Plaintiff Jane Doe respectfully requests that this Court permit her to proceed in this case under a pseudonym.¶
STATEMENT OF FACTS¶
Jeffrey Epstein was a wealthy pedophile who, with the assistance of others, committed sexual assaults on countless young girls for decades. Plaintiff Jane Doe is one of Epstein's victims. As set out in detail in her Complaint, Plaintiff met Epstein when she was only fourteen years old, and Epstein sexually assaulted and abused her for the next three years. His conduct caused her severe emotional and economic injuries, including post-traumatic stress disorder, which she still suffers today.¶
Epstein, by contrast, spent most of his life engaging in criminal sexual assault of minors like Plaintiff, with near-total impunity. Using his wealth and connections, and with the assistance of his co-conspirators and associates, Epstein avoided meaningful prosecution for his crimes until July 2019. He largely did so by harassing his victims and the lawyers who attempted to hold him accountable. According to Alexander Acosta, the former United States Attorney for the Southern District of Florida, after the FBI opened its first investigation into Epstein in 2006, Epstein's associates, whom Acosta described as "an army," ran "a year-long assault on the prosecution and the prosecutors" that included "investigat[ing] individual prosecutors and their families." See & Lee Aitken, Jeffrey Epstein: How the Hedge Fund Mogul Pedophile Got Off Easy, DAILY BEAST (Mar. 25, 2011), https://www.thedailybeast.com/jeffrey-epstein-how-the-hedge-fund-mogul-pedophile-got-off-¶
easy (reprinting letter Acosta "released exclusively to The Daily Beast").2 Epstein likewise attacked his victims' lawyers. In 2009, he brought a frivolous lawsuit against a lawyer for several victims. See Complaint, Jeffrey Epstein v. Scott Rothstein, and L.M., No. 50-2009-CA-040800 (Fla. Cir. Ct. Palm Beach Cty. Dec. 7, 2009), ECF No. 5. Epstein later "admitted to wrongfully suing" and stated through counsel that "[t]he lawsuit that I filed was my unreasonable attempt to damage [Mr. I business reputation and stop M from pursuing cases against me." Patricia Mazzei, Jeffrey Epstein Settles Lawsuit, Avoiding Testimony From Accusers in Sex Case, NY TIMES (Dec. 4, 2018), https://nyti.ms/2zKIGro.¶
On July 6, 2019, Epstein was arrested after landing in his private jet at Teterboro Airport in New Jersey. On July 8, 2019, the United States Attorney for the Southern District of New York unsealed an indictment charging Epstein with federal sex-trafficking crimes. Plaintiff features prominently in the Indictment, identified as "Minor Victim-1." See Indictment at 9. Plaintiff steadfastly maintained the confidentiality of her participation in the criminal investigation because of her very reasonable fear of the harms that would result if her identity were made public.¶
Before Epstein's untimely death, Judge Richard Berman, hearing the criminal case, recognized the risks to victims posed by Epstein and his associates. In support of Epstein's pre-¶
2 The result, as we now know, was that despite the fact that federal prosecutors had already "drafted an 82-page prosecution memorandum and a 53-page indictment outlining numerous federal sexual offenses committed by Epstein,"Doe I v. United States, 359 F. Supp. 3d 1201, 1205 (S.D. Ha. 2019), the United States Attorney offered Epstein "a remarkable deal," that allowed him to sign a non-prosecution agreement that was unlawfully hidden from Epstein's victims, see Julie K. Perversion ofJustice: Undermining the Case, MIAMI HERALD (Nov. 28, 2018), https://www.miamiherald.com/news/local/article214210674.html (describing how "despite ample physical evidence and multiple witnesses corroborating the girls' stories, federal prosecutors and Epstein's lawyers quietly put together a remarkable deal for Epstein"); see also Doe I, 359 F. Supp. 3d at 1221 (finding violation of the Crime Victim Rights Act). Epstein was able to plead to lesser offenses and serve a lenient sentence that allowed him to spend most of his waking hours outside of jail, where he allegedly continued to sexually assault young girls. See, e.g., Complaint, Doe v. lndyke, No. 19-cv-7772 (S.D.N.Y. Aug. 20, 2019), ECF No. 1 at 19-20.¶
trial detention, the Government had cited "extensive allegations of obstruction and tampering in connection with civil lawsuits brought against [Epstein]," and a 2006 Palm Beach police report describing how "the parent of one of [Epstein's] victims was driven off the road by a private investigator." Gov't Letter in Further Supp. of Detention Mem., United States v. Epstein, No. 19-cr-490 (S.D.N.Y. Jul. 12, 2019), ECF No. II at 11; see also id., ECF No. 11-2 (redacted copy of 2006 Palm Beach police report)? In his decision remanding Epstein to pre-trial detention, Judge Berman relied on this evidence and discussed at length how "Mr. Epstein or his representatives have intimidated, threatened, and/or made payments to potential witnesses." Decision and Order Remanding Def., id., (July 18, 2019), ECF No. 32 at 15, 15-18.¶
On August 11, 2019, Epstein died by suicide at the Metropolitan Correctional Facility. See Statement of Manhattan U.S. Attorney on the Death of Defendant Jeffrey Epstein (Aug. 10, 2019), https://www.justice.gov/usao-sdny/pestatement-manhattan-us-attorney-death-defendantjeffrey-epstein. Following his death, media attention to Epstein and his associates went into overdrive. Numerous other victims have now filed suit—many using a pseudonym to protect their identity. See Lisa Doe v. Darren K Indyke and Richard D. Kahn et at, No. 19-cv-07773 (S.D.N.Y.); Priscilla Doe v. Darren K. Indyke and Richard D. Kahn et at, No. 19-cv-07772 (S.D.N.Y.); Katlyn Doe v. Darren K. Indyke and Richard D. Kahn et at, No. I9-cv-07771 (S.D.N.Y.); VE v. Nine East 71' Street et at, No. 19-cv-7625 (S.D.N.Y.); Jane Doe I et at v. Epstein et at, No. 19-cv-07675 (S.D.N.Y). And the Government has publicly stated its intention¶
I The same police report documented "further information regarding victim and witness threats and intimidation reported against an individual who was directly in contact with an assistant of [Epstein], followed `immediately' by a call to that same individual from a phone number associated with [Epstein's] businesses and acsfulates." Id. ECF No. II at II. A second Palm Beach police report, also attached in Ml to the Government's pretrial detention memorandum, stated that "one victim reported that 'she was personally contacted through a source that has maintained contact with Epstein,' who 'assured [the victim] that she would receive monetary compensation for her assistance in not cooperating with law enforcement.' Indeed, the victim reported having been told: 'Those who help him will be compensated and those who hurt him will be dealt with.— Id.; see also id., ECF No. 11-3 (second Palm Beach police report).¶
to continue investigating Epstein's associates, many of whom have reportedly retained criminal defense lawyers and/or have been named as co-defendants in separate lawsuits.¶
ARGUMENT¶
While Federal Rule of Civil Procedure 10(a) provides that the "title of the complaint must name all the parties," courts have long understood this instruction as compatible with their discretion to permit a party with special privacy concerns to proceed under a pseudonym. See generally, e.g., Roe v. Wade, 410 U.S. 113 (1973). In deciding whether a plaintiff may be allowed to maintain an action under a pseudonym, courts balance the plaintiff's interest in anonymity against the public interest in disclosure and any prejudice to the defendant. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008). This is a "factor-driven balancing inquiry [that] requires a district court to exercise its discretion in the course of weighing competing interests." Id. at 190.¶
The Second Circuit has set forth a list of ten non-exhaustive factors that courts may consider in determining whether to permit a plaintiff to proceed pseudonymously:¶
- (1) whether the litigation involves matters that are highly sensitive and of a personal nature;
- (2) whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties;
- (3) whether identification presents other harms and the likely severity of those harms, including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity;
- (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of the plaintiff's age;
- (5) whether the suit is challenging the actions of the government or that of private parties;
(6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court;¶
(7) whether the plaintiff's identity has thus far been kept confidential;¶
(8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity;¶
(9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and¶
(10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.¶
Id. (internal quotation marks, citations, brackets, and ellipses omitted); see also Doe v. Szul Jewelry, Inc., No. 0604277/2007, 2008 WL 2157893, at *5-6 (N.Y. Cty. Sup. Ct. May 8, 2008) (applying substantially identical test under New York state law). Courts are "not required to list each of the factors or use any particular formulation as long as it is clear that the court balanced the interests at stake in reaching its conclusion." Sealed Plaint(lf, 537 F.3d at 191 n.4.¶
Here, all of the relevant factors strongly weigh in favor of granting Plaintiff's motion to file this case using a pseudonym. Indeed, for similar reasons to those discussed below, numerous courts have permitted Epstein's victims to proceed under pseudonyms in prior cases. See Order, Doe v. Epstein, No. 08-cv-80119 (S.D. Fla. Aug. 7, 2009), ECF No. 253 (consolidating 11 Doe cases against Epstein and every plaintiff to proceed anonymously in the style of the case); see also Hr'g Tr., United States v. Epstein, No. 19-cr-490 (S.D.N.Y. Aug. 27, 2019), ECF No. 53 (allowing eight of Epstein's victims to present testimony under protective pseudonyms after Epstein's death in connection with criminal case); Joint Rule 26(0 Report, Jane Doe 43 v. Epstein et aL, No. 17-cv-616 (S.D.N.Y. Apr. 5, 2017), ECF No. 28 at 4 (Rule 26 Report noting¶
that "[d]ue to the nature of the claim, the Plaintiff has proceeded anonymously through a pseudonym"); Order, Jane Doe No. 103 v. Epstein, No. 10-cv-80309 (S.D. Fla. Mar. 9, 2010), ECF No. 5 (granting motion to proceed anonymously). These courts have recognized that, throughout their litigation again Epstein, these women "will be required to disclose highly sensitive and intimate information," and disclosure of their real names "will cause ... much additional embarrassment, humiliation, and psychological trauma," as well as "adverse professional and economic consequences." See Order, Doe v. Epstein, No. 08-cv-80893 (S.D. Fla. Oct. 6, 2008), ECF No. 15 at 2-3.¶
Like her fellow victims, Plaintiff Jane Doe should be permitted to proceed pseudonymously here.¶
A. The Risks to Plaintiff Favor Allowing Her to Proceed Under A Pseudonym¶
The first four factors set out by the Second Circuit in Sealed Plaintiff concern the plaintiff's privacy and the potential harm to the plaintiff if her identity is disclosed. See 537 F.3d at 190. Each of these factors counsels strongly in favor of allowing Plaintiff to proceed pseudonymously.¶
Sexual assault claims are inherently "highly sensitive and of a personal nature." See id. Accordingly, courts have recognized that "sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity." Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y. 2006); see also Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 405 (S.D.N.Y. 2019) (finding allegations of sexual assault and ongoing sexual harassment were "highly sensitive and of an extremely personal nature"); Doe v. Colgate Univ., No. 15-cv-1069, 2016 WL 1448829, at *3 (N.D.N.Y. Apr. 12, 2016); Doe v. Greiner, 662 F. Supp. 2d 355, 363 n.8 (S.D.N.Y. 2009) (noting that "the identity of a minor who was the victim of a sex assault" is among the¶
"exceptional circumstances" justifying anonymity in court materials). For that reason alone, permitting Plaintiff to proceed pseudonymously is warranted.¶
All of these potential harms are compounded in this case due to the great deal of public attention surrounding Epstein's arrest and untimely death. See John Allsop, After Jeffrey Epstein's Death, Conspiracies—and Journalism—Flourish, COLUM. JOURNALISM REV.: THE MEDIA TODAY (Aug. 12, 2019), https://www.cjr.org/the_media_today/jeffrey_epstein_suicide\_ conspiracies.php; see also Doe v. Colgate Univ., 2016 WL 1448829, at •2 (recognizing that "significant media attention" poses "the risk of further reputational harm" to plaintiffs). The public identification of Jane Doe would undoubtedly lead to media scrutiny. That attention would not only exacerbate Plaintiff's psychological injury but also is likely to lead to harassment and cause further harm to her family and friends. Plaintiff has a legitimate fear that her public identification could put her job, relationships, and well-being at risk.¶
In this case, identifying Plaintiff also "poses a risk of retaliatory physical or mental harm." Sealed Plaintiff, 537 F.3d at 190. Although Epstein is deceased, a number of his associates are the subjects of potential criminal investigation and civil lawsuits. Many of these same individuals have already proven that they will intimidate and attempt to silence any of his identifiable victims. See Decision and Order Remanding Def., United States v. Epstein, No. 19 cr490 (S.D.N.Y. July 18, 2019), ECF No. 32 at 15, 15-18. This well-established history of retaliation justifies permitting Plaintiff to proceed pseudonymously. See, e.g., Doe v. Sclera Capital LLC, No. 18-cv-1769, 2019 WL 1437520, at *5 (S.D.N.Y. Mar. 31, 2019) ("[C]ourts have allowed plaintiffs to proceed anonymously where disclosure of their identities created a risk of harm from third parties unaffiliated with the case."); L.H. v. Schwarzenegger, No. 06-cv-2042, 2007 WL 662463, at *16 (ED. Cal. Feb. 8, 2007); see also Does I thru XXIII v. Advanced¶
Textile Corp., 214 F.3d 1058, 1070 (9th Cir. 2000) (noting that plaintiffs may proceed anonymously "to protect themselves from retaliation by third parties").¶
B. Public Policy and the Public Interest Favor Protecting Plaintiff's Privacy¶
Under Sealed Plaintiff, courts balance the plaintiff's interest in privacy with the public's countervailing interest in the litigation. 537 F.3d at 190.¶
Here, there simply is no public interest served by revealing the identity of one of Epstein's many victims. To the contrary, the public interest would be best served by permitting Plaintiff to seek justice under a protective pseudonym. New York State has a strong public policy interest in protecting the privacy interests of victims of sexual abuse, as demonstrated by Section 50-b of the Civil Rights Law, which protects sex-abuse survivors from undesired identification in a range of public administrative contexts, including certain court proceedings. See N.Y. Civil Rights Law § 50-b (McKinney 2019) (shielding sex-abuse victims from identification in, among other things, any "police report, court file, or other document"). Moreover, in addition to the public's general interest in protecting the well-being of victims, "the public generally has a strong interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes." See Kolko, 242 F.R.D. at 195-96. In consideration of that strong public policy, federal courts have permitted victims of sexual assault to proceed anonymously in similar cases.¶
Allowing Plaintiff to proceed pseudonymously would also avoid unnecessary interference with the federal government's ongoing criminal investigation into Epstein's network. This Court's decision to permit Plaintiff to proceed under a protective pseudonym would thus not only protect her privacy and security but advance an important public interest in facilitating the orderly administration of criminal justice.¶
C. Allowing Plaintiff to Proceed Pseudonymously Will Not Prejudice Defendant¶
In considering whether to permit a plaintiff to proceed anonymously, courts also balance the harm to the plaintiff with the potential prejudice to the defendant. See Sealed Plaintiff; 537 F.3d at 189. The relevant considerations are the damage to the defendant's reputation caused by responding to anonymous allegations, difficulties in conducting discovery, and the fundamental fairness of proceeding in such a manner. E.W. v. N.Y. Blood Ctr., 213 F.R.D. 108, 112 (E.D.N.Y. 2009). None of these factors counsels against allowing Plaintiff to proceed pseudonymously here.¶
As an initial matter, Epstein's reputation as a perpetrator of child sexual abuse is well established. He was a registered sex offender in New York as of 2010, see Romero and Nicholas Kulish, Jeffrey Epstein Registered as a Sex Offender in 1 States. In New Mexico, He Didn't Have To., N.Y. TIMES (July II, 2019), https://nyti.ms/2NS8D1Q, and the details of his crimes have been widely publicized. Indeed, rather than avoid this publicity during his lifetime, Epstein essentially admitted that he had committed the same type of conduct underlying Plaintiff's complaint. See James Stewart, The Day Jeffrey Epstein Told Me He Had Din on Powerful People, N.Y. TIMES (Aug. 12, 2019), https://nyti.ms/2OSpIcF (describing how Epstein told reporter that "criminalizing sex with teenage girls was a cultural aberration and that at times in history it was perfectly acceptable"). This case, more than any, is one in which "any reputational harm to defendants has already been inflicted." Doe #1 v. Syracuse Univ., No. 18 cv-496, 2018 WL 7079489, att8 (N.D.N.Y. Sep. 10, 2018).¶
Permitting Plaintiff to proceed under a protective pseudonym also will not inhibit Epstein's estate from conducting discovery and reasonably defending this case. Plaintiff's counsel expects to make reasonable accommodations to facilitate the fair and orderly resolution of this case, including providing Plaintiff's name to Defendant's counsel under conditions that will reasonably protect the safety of Plaintiff, her family, and potential witnesses. Where a defendant's counsel is made aware of plaintiff's identity, there is no "prejudice to [defendant's] ability to conduct discovery or try the matter if plaintiff were to proceed under a pseudonym." See E. W, 213 F.R.D. at 112; see also Kolko, 242 F.R.D. at 198 (finding that where defendants know plaintiff's identity, "defendants will not be hampered or inconvenienced merely by plaintiff's anonymity in court papers"). As in other cases in which courts have permitted plaintiffs to proceed under a protective pseudonym, the requested order "may not and will not hinder defendant's ability to pursue his legal defense in any way." Doe v.M, 105 F. Supp. 2d 40, 45 (E.D.N.Y. 1999) (no prejudice to defendant where plaintiff's anonymity did not interfere with ability to take depositions, obtain documents, or limit defendant's trial rights or public's access rights).¶
D. Plaintiff Jane Doe Has Diligently Worked to Keep Her Identity Confidential And There is No Alternative Mechanism For Protecting Her Confidentiality¶
Importantly, Plaintiff has worked diligently to safeguard her identity. She has never spoken to the press or publicly identified herself in any way associated with her allegations. In the related criminal case, federal prosecutors have carefully protected her identity. These efforts underscore the strength of her petition to proceed pseudonymously in her civil action. See, e.g., Solera Capital, 2019 WL 1437520, at •7 (finding that "the fact that Doe's anonymity to the public has been preserved to date counsels in favor of proceeding pseudonymously). This is not a case where Plaintiff has sought some perceived advantage by broadcasting her identity in public while attempting to shield it in court. Cf. Doe v. Fedcap. Rehab. Services, Inc., No. 17 cv-8220, 2018 WL 2021588, at •2 (S.D.N.Y. Apr. 27, 2018) (vacating grant of pseudonymity after plaintiff voluntarily participated in major news story using their real name).¶
Moreover, allowing Plaintiff to proceed pseudonymously here is the only mechanism available to continue to protect her identity. See Sealed Plaintiff 537 F.3d at 190. Given the certain prospect of intensive media scrutiny of this case, anything less than full protection of Plaintiff's name will subject her to immediate and irreversible identification and all of its negative consequences described above.¶
CONCLUSION¶
For all the foregoing reasons, Plaintiff respectfully requests that the Court grant Plaintiff's motion and allow her to file her complaint using a pseudonym.¶
Dated: September 18, 2019 Respectfully submitted,¶
Roberta A. Kaplan Julie E. Fink Jenna M. Dabbs Justin Horton Alexandra K. Conlon (admission pending)¶
KAPLAN HECKER & FINK LLP 350 Fifth Avenue, Suite 7110 New York, New York 10118 Telephone: (212) 763-0883 Facsimile: (212) 564-0883 rkaplan@kaplanhecker.com jfmk@kaplanhecker.com jdabbs@kaplanhecker.com jhorton@kaplanhecker.com aconlon@kaplanhecker.com¶
Attorneys for Plaintf f f Jane Doe¶