In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .
There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.
While I don’t believe that the court should be held blameless, I definitely agree with Bashman that the lawyers are also to blame in this case.
Lawyers often are not devoting adequate attention to the issue of client privacy interests in the course of litigation. One reason why many privacy cases involve the real names of plaintiffs is because many lawyers don’t even think of raising the issue of the plaintiff proceeding pseudonymously. Courts often will deny plaintiffs the right to proceed under a pseudonym, but this doesn’t mean it isn’t worth trying. You rarely get anything without at least asking.
Beyond privacy cases, lawyers also often don’t take adequate steps to get sensitive personal information redacted from court documents which are made public. As many courts are moving toward making their records available online, they are adopting policies that allow for the redaction of certain sensitive personal information from documents that are placed on the Internet. But to be effective, these policies depend upon attorneys safeguarding the rights and interests of their clients. Many lawyers are letting their clients down in this regard by not being aggressive enough in pursuing clients’ interests in maintaining the privacy of their information in court filings.
Thus, Bashman is certainly right that lawyers need to begin to step up to be better at protecting their clients’ privacy interests. That’s why every lawyer should take a privacy law course in law school! And coincidentally, I happen to teach such a course. . .
UPDATE: PG has some interesting thoughts on pseudonymity in a rather interesting case, Moe v. Doe, here.
Originally posted at Concurring Opinions
* * * *
This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.