Motion To Use Pseudonyms

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 1 of 9
Kathryn Kendell (Utah Bar No. 5398)

NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, CA 94102
Tel: (415) 392-6527
KKendell@NCLRights.org
Douglas H. Hallward-Driemeier (pro hac vice application pending)
Jeremiah L. Williams (pro hac vice application pending)
ROPES & GRAY LLP
2099 Pennsylvania Avenue NW
Washington D.C. 20006
Tel: (202) 508-4600
Douglas.Hallward-Driemeier@ropesgray.com
Jeremiah.Williams@ropesgray.com
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
EQUALITY UTAH; JANET DOE, as next friend

and parent of JOHN DOE; JUSTINE DOE, as
next friend and parent of JAMES DOE; and
JESSIE DOE, as next friend and parent of JANE
DOE,
Plaintiffs,
Civil Action No. 2:16-cv-01081-BCW
v.
UTAH STATE BOARD OF EDUCATION;
SYDNEE DICKSON, in her official capacity as
State Superintendent of Public Instruction of the
State of Utah; BOARD OF EDUCATION OF
CACHE COUNTY SCHOOL DISTRICT;
BOARD OF EDUCATION OF JORDAN
SCHOOL DISTRICT; JORDAN SCHOOL
DISTRICT; BOARD OF EDUCATION OF
WEBER SCHOOL DISTRICT; and WEBER
SCHOOL DISTRICT,
Defendants.
MOTION FOR LEAVE TO

PROCEED UNDER PSEUDONYMS
AND FOR PROTECTIVE ORDER
Plaintiffs, by and through the undersigned counsel, submit this Motion for Leave to
Proceed Under Pseudonyms and for Protective Order. This Motion is filed contemporaneously
with Plaintiffs Complaint. This Motion is supported by the accompanying Memorandum, the
proposed Protective Order, the Complaint, the arguments set forth in the accompanying
Memorandum, and such other matters of which the Court may take judicial notice.
This 24th day of October, 2016.

Respectfully submitted,
/s/ Kathryn Kendell

Kathryn Kendell
Utah Bar No. 5398
Tel: (415) 392-6527
Fax: (415) 392-8442
Douglas H. Hallward-Driemeier
Jeremiah L. Williams
(pro hac vice applications pending)
ROPES & GRAY LLP
Tel: (202) 508-4600
Fax: (202) 508-4650
Kathryn Kendell (Utah Bar No. 5398)

Tel: (415) 392-6527
Douglas H. Hallward-Driemeier (pro hac vice application pending)
Jeremiah L. Williams (pro hac vice application pending)
ROPES & GRAY LLP
Tel: (202) 508-4600

DOE,
Plaintiffs,
v.
SCHOOL DISTRICT,
Defendants.
MEMORANDUM IN SUPPORT OF
PLAINTIFFS MOTION FOR LEAVE TO
PROCEED UNDER PSEUDONYMS AND
FOR PROTECTIVE ORDER
Plaintiffs John Doe, James Doe, and Jane Doe (the Minor Plaintiffs), by and through
their next friends, parents, and legal guardians Janet Doe, Justine Doe, and Jessie Doe (the
Plaintiffs Guardians), have filed this lawsuit under pseudonyms to protect their true identities.
Minor Plaintiffs and Plaintiffs Guardians reside in Weber County, Utah; Cache County, Utah;
and Salt Lake County, Utah, and Minor Plaintiffs attend or have recently attended Utah public
schools. Minor Plaintiffs have filed under pseudonyms due to privacy concerns and a fear of
physical or psychological harm if their true identities are disclosed. Plaintiffs Guardians have
also filed under pseudonyms to protect their own safety and to avoid indirect disclosure of Minor
Plaintiffs identities.
I.
INTRODUCTION
This action challenges the legality of Utahs Anti-Gay Curriculum Laws (UTAH CODE
ANN. 53A-13-101 and UTAH ADMIN. CODE r. 277-474-3) and Utahs Anti-Gay Student Club
Laws (UTAH CODE ANN. 53A-11-1201 et seq. and UTAH ADMIN. CODE r. 277-113-6(9)).
Plaintiffs allege that the foregoing statutes and regulations violate the First and Fourteenth
Amendments to the United States Constitution; Title IX of the U.S. Education Amendments of
1972, 20 U.S.C. 1681-1688; and the Equal Access Act, 20 U.S.C. 4071-4074. Minor
Plaintiffs identify as gay or lesbian or are gender non-conforming. Due to Minor Plaintiffs
young ages and the sensitive subject matter of this lawsuit, disclosure of Minor Plaintiffs
identities or Plaintiffs Guardians identities has the potential to result in significant harm.
When determining whether plaintiffs can proceed under pseudonyms, courts have
analyzed whether the plaintiffs right to privacy outweighs a presumption of openness in judicial
proceedings. To conduct this analysis, courts take into account a number of factors, including:
(1) whether the plaintiffs seeking anonymity are suing to challenge governmental
activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose
information of the utmost intimacy; (3) whether the litigation compels plaintiffs to
disclose an intention to violate the law, thereby risking criminal prosecution; and (4)
whether the plaintiffs are children.
Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (citing Doe v. Stegall, 653 F.2d 180, 185-86
(5th Cir. 1981)). Courts have also considered whether plaintiffs might be threatened with
violence or physical harm by proceeding in their own names . . . and whether [plaintiffs]
anonymity pose[s] a unique threat of fundamental unfairness to the defendant. Plaintiff B v.
Francis, 631 F.3d 1310, 1316 (11th Cir. 2011) (citations omitted).
Here, Plaintiffs are challenging governmental activity and will be required to disclose
information of the utmost intimacy about Minor Plaintiffs sexual orientation and the physical
and psychological abuse that they have suffered. Minor Plaintiffs and Plaintiffs Guardians
could be at risk of further verbal threats or physical harm if their identities are disclosed.
Further, Defendants will not be prejudiced by the use of pseudonyms in the proceedings because
Defendants attorneys will be permitted to access information necessary to litigate this matter by
following the terms of the proposed protective order, attached. For all these reasons, the
Plaintiffs Motion to Proceed Under Pseudonyms and for Protective Order should be granted.
II.
ARGUMENT
A.
This Court has the authority to allow Plaintiffs to proceed pseudonymously.
Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure, The title of the
complaint must name all the parties . . . [.] However, district courts can allow plaintiffs to
proceed pseudonymously under certain circumstances. See, e.g., Santa Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290, 294 (2000) (noting The District Court permitted respondents (Does) to
litigate anonymously to protect them from intimidation or harassment.); Natl Commodity &
Barter Assn, Natl Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) ([C]ourts
have permitted a plaintiff to proceed using a fictitious name where there are significant privacy
interests or threats of physical harm implicated by the disclosure of the plaintiffs name
(citations omitted)). This Court has the authority to protect Minor Plaintiffs by allowing Minor
Plaintiffs and Plaintiffs Guardians to proceed pseudonymously, and this matter presents
circumstances where such protection should be granted.
B.
The Plaintiffs are challenging governmental activity.
Plaintiffs are bringing this action against the State Board of Education and local school
districts, as well as the State Superintendent acting in her official capacity as a government
employee. This posture weighs in favor of granting anonymity to Minor Plaintiffs and Plaintiffs
Guardians. While a private individual may have an interest in confronting his or her accuser,
government entities and government officials do not have the same interest. See, e.g., S.
Methodist Univ. Assn of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.
1979) (distinguishing between courts allowing plaintiffs to proceed anonymously when
challenging the constitutional, statutory or regulatory validity of government activity and cases
where plaintiffs challenged the actions of private parties). Further, the publics interest in the
governments compliance with federal laws and protection of fundamental rights outweighs any
interest in identifying the individuals who are challenging these laws.
C.
The allegations include information of the utmost intimacy to the

Plaintiffs.
This lawsuit will require Minor Plaintiffs to disclose highly personal information,
including details about their sexual orientation and non-conforming gender identity. Courts have
routinely recognized that under these circumstances, litigants should be allowed to proceed under
pseudonyms. See, e.g., Doe v. United Services Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.
1988) (Cases where a party risks public identification as a homosexual also raise privacy
concerns that have supported an exception to the general rule of disclosure.); Doe v. Blue Cross
& Blue Shield, 794 F. Supp. 72, 74 (D.R.I. 1992) (Unquestionably, ones sexual practices are
among the most intimate parts of ones life. When those sexual practices fall outside the realm
of conventional practices which are generally accepted without controversy, ridicule or
derision, that interest is enhanced exponentially.).
This lawsuit will also require Minor Plaintiffs to disclose details about the mental and
physical harm they have suffered. For example, the Complaint alleges that Minor Plaintiff John
Doe was teased, beaten, and burned when he attended a Utah public school. The Complaint
further alleges that John Doe was forced to leave school because administrators could not protect
him from harassment and that he continues to suffer psychological harm from this abuse. In
similar circumstances, Courts have . . . allowed minors with sensitive mental health histories to
proceed anonymously. Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dept of Educ.,
No. 2:16-CV-524, 2016 WL 4269080, at *5 (S.D. Ohio Aug. 15, 2016) (citation omitted). Minor
Plaintiffs should be protected from having personal and painful incidents connected to
identifiable information.
D.
As children, Minor Plaintiffs require heightened protection and risk harm if

not allowed to proceed under pseudonyms.
Minor Plaintiffs are particularly vulnerable because of their age. The Federal Rules of
Civil Procedure acknowledge the special sensitivity of minors by permitting minors to be
identified by their initials in court filings. See Fed R. Civ. P. 5.2. But here, even this protection
would be inadequate, because Minor Plaintiffs live in small communities and come from a small
pool of potential litigants. If this lawsuit proceeded using Minor Plaintiffs initials and
Plaintiffs Guardians full names, Minor Plaintiffs could be easily identified, leading to the
disclosure of highly sensitive information.
As courts have recognized, minor litigants sometimes require the heightened protection
of proceeding under pseudonyms. See, e.g., Stegall, 653 F.2d at 186 (The gravity of the danger
posed by the threats of retaliation against the [plaintiffs] for filing th[e] lawsuit must also be
assessed in light of the special vulnerability of these child-plaintiffs. (emphasis added));
Porter, 370 F.3d at 561 (noting heightened protection of anonymity granted to young children).
To guarantee minor litigants identities are safeguarded and to protect the safety of minors
guardians, courts have permitted guardians to proceed under pseudonyms as well. See, e.g., Doe
v. United States, No. 16-CV-0640, 2016 WL 3476313, at *1 (S.D. Ill. June 27, 2016)
(Revealing Plaintiffs names will not only allow for [minor litigant]s identification, but will
also expose Plaintiffs to the risk of retaliation by members of the public.). As the Complaint
alleges, Minor Plaintiffs have already been teased, beaten, bullied, subjected to sexual
intimidation, and disciplined by school authorities because of their sexual orientation or nonconforming gender identity. Minor Plaintiffs and Plaintiffs Guardians should not be exposed to
the risk of additional harassment if their identities could be widely ascertained during the
lawsuit.
E.
The use of pseudonyms does not pose a threat of unfairness to Defendants.
Defendants will not be prejudiced if Minor Plaintiffs and Plaintiffs Guardians proceed
pseudonymously. Plaintiffs proposed protective order would allow Defendants counsel to
access information necessary to litigate this lawsuit. Courts have recognized that these types of
protections are minimally intrusive to defendants. See, e.g., Doe v. Barrow Cty., 219 F.R.D. 189,
194 (N.D. Ga. 2003) (Any proceedings necessary to determine standing, or other issues
defendants wish to pursue with the plaintiff, will be conducted in a closed setting. The court
notes that the inconvenience to defendants should be relatively low.). Any potential
inconvenience is inconsequential when compared to safeguarding Minor Plaintiffs and Plaintiffs
Guardians against the risk of future physical or mental harm.
III.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court grant their
Motion for Leave to Proceed Under Pseudonyms and for Protective Order.
This 24th day of October, 2016.

Respectfully submitted,
/s/ Kathryn Kendell

Kathryn Kendell
Utah Bar No. 5398
Tel: (415) 392-6527
Fax: (415) 392-8442
Douglas H. Hallward-Driemeier
Jeremiah L. Williams
(pro hac vice applications pending)
ROPES & GRAY LLP
Tel: (202) 508-4600
Fax: (202) 508-4650
Case 2:16-cv-01081-BCW Document 5-1 Filed 10/24/16 Page 1 of 3


DOE,
Plaintiffs,
v.
SCHOOL DISTRICT,
PROPOSED PROTECTIVE ORDER
Defendants.
On motion of Plaintiffs and for good cause shown:

IT IS HEREBY ORDERED that this Protective Order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure be, and is hereby entered.
1. As used in the Protective Order, these terms have the following meanings:
i.
Counsel: Counsel of record in this action.
ii.
Disclose: Disclose shall mean show, divulge, reveal, produce, describe, transmit,
or otherwise communicate, in whole or in part, a copy, or any summaries of the

referenced materials or documents.
iii.
Document: Document shall have the broadest meaning permissible under the
Federal Rules of Civil Procedure and shall include, without limitation, all
documents and electronically stored information as defined in Rule 34 of the
Federal Rules of Civil Procedure, all writings, recordings, and photographs
as defined in Rule 1001 of the Federal Rules of Evidence, and any information
stored in or through any computer system or other electronic or optical data
storage device.
iv.
Identifying Information: any information from which Minor Plaintiffs or

Plaintiffs Guardians true identities could be ascertained, including but not
limited to, Minor Plaintiffs or Plaintiffs Guardians addresses.
v.
Minor Plaintiffs: Plaintiffs John Doe, James Doe, and Jane Doe.
vi.
Plaintiffs Guardians: Minor Plaintiffs next friends, parents, and legal guardians
Janet Doe, Justine Doe, and Jessie Doe.
2. Minor Plaintiffs shall proceed in this action under the pseudonyms John Doe, James Doe,
and Jane Doe. Plaintiffs Guardians shall proceed in this action under the pseudonyms
Janet Doe, Justine Doe, and Jessie Doe.
3. At the request of Defendants Counsel, Plaintiffs Counsel shall disclose Minor Plaintiffs
true identities and addresses to Defendants Counsel.
4.
Defendants Counsel may disclose Minor Plaintiffs true identities or Identifying

Information to the named Defendants, but only if and when such disclosure is necessary
to litigate this action.
5. All Court personnel who learn Minor Plaintiffs or Plaintiffs Guardians true identities or
have access to Identifying Information are prohibited from further disclosing such
information.
6. Any individual to whom disclosure of Minor Plaintiffs or Plaintiffs Guardians true
identities or Identifying Information is made shall first read the Protective Order and
confirm he or she understands the Protective Orders contents. After disclosure is made,
these individuals shall not further disclose Minor Plaintiffs or Plaintiffs Guardians true
identities or Identifying Information.
7. All documents filed with the Court that contain Minor Plaintiffs or Plaintiffs Guardians
true identities or Identifying Information shall be filed under seal. The Parties shall use
Minor Plaintiffs and Plaintiffs Guardians pseudonyms in all publicly-filed documents.
8. Failure by any person to comply with the terms of this Protective Order may subject the
violator to a finding of contempt of court.
SO ORDERED:
Dated: ____________, 2016

Salt Lake City, Utah
United States Chief Magistrate Judge Brooke C. Wells

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Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 1 of 9

Kathryn Kendell (Utah Bar No. 5398)

EQUALITY UTAH; JANET DOE, as next friend

MOTION FOR LEAVE TO

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 2 of 9

This 24th day of October, 2016.

/s/ Kathryn Kendell

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 3 of 9

Kathryn Kendell (Utah Bar No. 5398)

EQUALITY UTAH; JANET DOE, as next friend

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 4 of 9

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 5 of 9

This Court has the authority to allow Plaintiffs to proceed pseudonymously.

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 6 of 9

The Plaintiffs are challenging governmental activity.

The allegations include information of the utmost intimacy to the

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 7 of 9

As children, Minor Plaintiffs require heightened protection and risk harm if

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 8 of 9

The use of pseudonyms does not pose a threat of unfairness to Defendants.

Case 2:16-cv-01081-BCW Document 5 Filed 10/24/16 Page 9 of 9

This 24th day of October, 2016.

/s/ Kathryn Kendell

Case 2:16-cv-01081-BCW Document 5-1 Filed 10/24/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

EQUALITY UTAH; JANET DOE, as next friend

PROPOSED PROTECTIVE ORDER

On motion of Plaintiffs and for good cause shown:

Counsel: Counsel of record in this action.

or otherwise communicate, in whole or in part, a copy, or any summaries of the

Case 2:16-cv-01081-BCW Document 5-1 Filed 10/24/16 Page 2 of 3

Identifying Information: any information from which Minor Plaintiffs or

Defendants Counsel may disclose Minor Plaintiffs true identities or Identifying

Case 2:16-cv-01081-BCW Document 5-1 Filed 10/24/16 Page 3 of 3

Dated: ____________, 2016

United States Chief Magistrate Judge Brooke C. Wells

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