Case 1:18-cv-01070-LM Document 34 Filed 05/14/19 Page 1 of 14

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
KRISTINA RAPUANO, VASSIKI
CHAUHAN, SASHA BRIETZKE,
ANNEMARIE BROWN, ANDREA
COURTNEY, MARISSA EVANS, JANE
DOE, JANE DOE 2, and JANE DOE 3,
Plaintiffs,
v.
TRUSTEES OF DARTMOUTH
COLLEGE,
Defendant.

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Civil Action No. 1:18-cv-01070-LM

DEFENDANT TRUSTEES OF DARTMOUTH COLLEGE’S
CONSOLIDATED OPPOSITION TO PLAINTIFF JANE DOE 2’S MOTION
TO PROCEED UNDER PSEUDONYM [ECF No. 29] and PLAINTIFF
JANE DOE 3’S MOTION TO PROCEED UNDER PSEUDONYM [ECF No. 30]
Defendant Trustees of Dartmouth College (“Dartmouth” or the “College”) submits this
consolidated opposition to Plaintiff Jane Doe 2’s Motion to Proceed Under Pseudonym (May 1,
2019, ECF No. 29) and Plaintiff Jane Doe 3’s Motion to Proceed Under Pseudonym (May 1,
2019, ECF No. 30) (the “Motions”). Federal Rule of Civil Procedure 10(a) requires that the
caption of a complaint name all parties. Although some circuit courts of appeal (not this circuit)
have devised a procedure to consider whether a litigant may proceed anonymously despite the
rule, this is not a case that would constitute such exceptional circumstances. Rather, if the
Motions were granted, and the proposed Amended Complaint were to stand as the operative
pleading, three of the nine named Plaintiffs would be proceeding under pseudonym.

The

anonymity would prejudice Dartmouth’s ability to defend itself in this case, unfairly increase the
burden to the parties and the Court of conducting this litigation, and present unworkable
challenges to Dartmouth, to putative class members, and to the Court, in performing a proper

 Case 1:18-cv-01070-LM Document 34 Filed 05/14/19 Page 2 of 14

assessment of whether these individuals can act as class representatives as they have requested.
In light of these concerns, Dartmouth opposes the use of pseudonyms for all purposes or, in the
alternative, requests that the Court allow the use of pseudonyms only until the earlier of (a) any
discovery dispute relating in whole or in part to allegations involving these plaintiffs, or (b) the
class certification process.
BACKGROUND
Plaintiffs allege that three professors – William Kelley, Paul Whalen, and Todd
Heatherton (the “Former Professors”) – engaged in numerous improper acts that constituted
sexual harassment and discrimination. They have not sued the Former Professors, however, in
this case (or otherwise to Dartmouth’s knowledge). Instead, they have sued Dartmouth and
claimed that they are entitled to a judgment in the millions of dollars, not only on their behalf,
but on behalf of dozens of putative class members who also matriculated through the
Psychological and Brain Sciences department at Dartmouth, where the Former Professors
worked before Dartmouth took steps to terminate their employment and they retired or resigned.
Dartmouth does not condone the conduct alleged, but disputes that the College is liable for the
tens of millions of dollars that Plaintiffs seek, under any of the causes of action that they have
attempted to assert.
The initial Complaint named seven Plaintiffs, each of whom sought to serve as class
representative on behalf of the putative class. See generally, Complaint (Nov. 15, 2018), ECF
No. 1. One of those Plaintiffs moved to proceed under pseudonym. See Plaintiffs’ Motion for
Leave to Proceed Under Pseudonym (Nov. 15, 2018), ECF No. 2. Dartmouth did not oppose at
that time, but expressly reserved its “right to object at a later point in time if the use of a
pseudonym interferes with Defendants’ ability to defend or impacts the question of whether

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Plaintiff can act as a representative of a putative class.” Defendants’ Response to Motion for
Leave to Proceed Under Pseudonym (Nov. 21, 2018), ECF No. 9. On November 30, 2018, the
Court granted the motion in part, explaining that:
The court finds exceptional circumstances warrant the use of a pseudonym for this
plaintiff. The court has weighed the multi-factor balancing test, see Doe v.
Megless, 654 F.3d 404, 408-09 (3d Cir. 2011), and finds that the balance of
factors weighs heavily in favor of a pseudonym. However, as in Doe v. Trustees
of Dartmouth Coll., No. 18-CV-040-LM, 2018 WL 2048385, at *7 (D.N.H. May
2, 2018), the court's order is limited to pretrial proceedings. Also, if, at any point
during pretrial proceedings, Jane Doe's use of a pseudonym impacts whether she
can act as a class representative, the court will reconsider this order. See In re
Ashley Madison Customer Data Security Breach Litigation, MDL No. 2669, 2016
WL 1366616, at *4 (E.D. Mo. Apr. 6, 2016) (allowing anonymity for plaintiff as
class member but not class representative). Accordingly, the parties shall use the
pseudonym Jane Doe for this plaintiff and shall redact her true name from all
documents in this case and refrain from revealing her true identity.
See November 30, 2018 Order on Motion for Miscellaneous Relief (text in docket entry, no
separate ECF Number).
Notwithstanding that request by one of the initial seven plaintiffs to proceed
anonymously, the remaining plaintiffs and their counsel have not attempted to avoid the public
view. To the contrary, they have sought significant publicity in connection with this litigation,
giving newspaper and television interviews, and actively advocating in social media in favor of
their case and against Dartmouth. See, e.g., Julia Jacobo, Plaintiffs in $70 million Title IX class
action lawsuit against Dartmouth describe ‘systemic’ sexual harassment,
2018),

ABCNEWS

(Nov. 16,

https://abcnews.go.com/US/plaintiffs-70-million-title-ix-class-action-

lawsuit/story?id=59223760; Sanford Heisler Sharp Files $70 Million Sexual Assault and Gender
Discrimination Class Action Against Dartmouth College, Press Release, SANFORD HEISLER
SHARP, LLP (Nov. 15, 2018), https://sanfordheisler.com/press-release/sanford-heisler-sharpfiles-title-ix-class-action-against-dartmouth/; Anemona Hartocollis, Dartmouth Professors Are
Accused of Sexual Abuse by 7 Women in Lawsuit, NY TIMES (Nov. 15, 2018),
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https://www.nytimes.com/2018/11/15/us/dartmouth-professors-sexual-harassment.html; Deirdre
Fernandes, Dartmouth students sue over alleged sexual assault by professors, BOSTON GLOBE
(Nov. 15, 2018),

https://www.bostonglobe.com/metro/2018/11/15/lawsuit-describes-century-

animal-house-dartmouth-college/OVtrcSKDRJFTAWdvOWsyfL/story.html.
No doubt aware of the significant publicity already achieved by Plaintiffs and their
counsel, the two proposed new plaintiffs (the “Moving Plaintiffs”) seek to join the lawsuit, and
serve as class representatives in pursuing a multi-million dollar judgment, using pseudonyms. If
the Motions are granted, the parties would be required to proceed with multiple aspects of the
litigation – perhaps including informal investigation (i.e., correspondence with willing
witnesses), formal discovery, depositions, litigation over discovery issues, class certification, and
dispositive motions – all with the vague and confusing use of “Jane Doe 1,” “Jane Doe 2,” and
“Jane Doe 3” along with six other named plaintiffs.
ARGUMENT
“The First Circuit has yet to explicitly permit the practice [of proceeding under a
pseudonym]” and “makes clear that the ‘starting point must always be the common-law
presumption in favor of public access.’” Doe v. Trs. of Dartmouth Coll. (“Dartmouth I”), No.
18-CV-040-LM, 2018 U.S. Dist. LEXIS 74066, at *7 (D.N.H. May 2, 2018) (quoting Nat’l Org.
For Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011)). Plaintiffs have failed to show why the
presumption of public access should not control here. To the contrary, allowing Plaintiffs to
proceed under pseudonyms would prejudice Dartmouth in its ability to defend the litigation and
preclude proper evaluation of whether these individuals can serve as representatives for a
putative class.
I.

Legal Standard.

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Because the First Circuit has yet to explicitly permit the practice of plaintiffs proceeding
under pseudonym, it has not articulated a legal standard. In their memorandum in support of the
Motions, Moving Plaintiffs state (perhaps in light of the order quoted above) that “[t]his Court
applies the Third Circuit’s six-factor balancing test…” Memorandum of Law in Support of
Plaintiff Jane Doe 2’s and Plaintiff Jane Doe 3’s Motions to Proceed Under Pseudonym (May 1,
2019), ECF No. 29-1 and 30-1 at 3 (quoting Dartmouth I at *11-12).1 The Dartmouth I case
itself is distinguishable on its facts from the instant case. Among other things, Dartmouth I was
not a putative class action; it did not involve a plaintiff who sought out publicity as many of the
Plaintiffs did here; unlike Plaintiffs here, the Dartmouth I plaintiff requesting anonymity claimed
that he was wrongfully accused of sexual assault and would suffer reputational harm stemming
from that accusation; and Dartmouth I included a request for third-party anonymity, which is not
present here.

Id. at *1-5, 12-19. Nevertheless, Dartmouth will analyze Plaintiffs’ motion

pursuant to the factors as articulated in Dartmouth I.
II.

Dartmouth I Factors.

As this Court explained in Dartmouth I, the non-exhaustive factors considered pursuant
to the Third Circuit test governing requests to proceed anonymously are:
(1) the extent to which the identity of the litigant has been kept confidential; (2)
the bases upon which disclosure is feared or sought to be avoided, and the
substantiality of these bases; (3) the magnitude of the public interest in
maintaining the confidentiality of the litigant's identity; (4) whether, because of
the purely legal nature of the issues presented or otherwise, there is an atypically
weak public interest in knowing the litigant's identities; (5) the undesirability of
an outcome adverse to the pseudonymous party and attributable to his refusal to
pursue the case at the price of being publicly identified; [] (6) whether the party
seeking to sue pseudonymously has illegitimate ulterior motives . . . . [(7)] the
universal level of public interest in access to the identities of litigants; [(8)]
whether, because of the subject matter of this litigation, the status of the litigant as
a public figure, or otherwise, there is a particularly strong interest in knowing the
litigant's identities, beyond the public's interest which is normally obtained; and
1

This Court has summarized the referenced test to include nine factors, not six.

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[(9)] whether the opposition to pseudonym by counsel, the public, or the press is
illegitimately motivated.
Dartmouth I at *11-12 (quoting Doe v. Megless, 654 F.3d 404, 409 (3d. Cir. 2011)).
Dartmouth takes no position on Moving Plaintiffs’ articulation regarding the first factor.
With respect to the second, although some of Plaintiffs’ allegations involve personal and
sensitive matters, courts have found that such subject matter is not necessarily sufficient to allow
proceeding under a pseudonym. See, e.g., Doe v. Compact Info. Sys., No. 13-cv-5013-M, 2015
U.S. Dist. LEXIS 178930, at *12-13 (N.D. Tex. Jan. 26, 2015) (“Moreover, even sexual assault
(a matter undisputably [sic] of a highly sensitive and personal nature) has not been found to be so
compelling in regard to its intimate nature as to permit plaintiffs to proceed anonymously in
instances where the plaintiff is pursuing an action against the alleged abuser.”). Plaintiffs must
show actual and reasonable risk of severe retaliation or other significant harm.

See, e.g.,

Dartmouth I at * 11 (“It is not enough that the plaintiff may suffer embarrassment or economic
harm as a result of public identification; the plaintiff must show both a fear of severe harm and
that the fear is reasonable.”).
Perhaps more importantly, however, Moving Plaintiffs are not seeking to bring only their
individual claims; they are asking to serve as anonymous class representatives. As one Court
articulated the issue, “[a]ny unwanted attention or scrutiny comes along with filing a lawsuit,
especially as a class representative of a potentially high profile class action.” Compact Info.
Sys., 2015 U.S. Dist. LEXIS 178930 at *18 (emphasis added). Particularly in light of the
Moving Plaintiffs’ desire to serve as class representatives, this factor weighs against allowing
them to proceed using a pseudonym.
With respect to the third factor, Moving Plaintiffs offer only a cursory statement that
disallowing anonymity will deter others from coming forward. ECF 29-1 and 30-1 at 5. That
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statement fails to recognize that there are six plaintiffs who have been willing to proceed
publicly, and indeed, have sought out publicity. Moreover, the claim about similar plaintiffs
being willing to come forward is misdirected given that this is a putative class action. If the
named plaintiffs are able to achieve certification of a class (which they contend is appropriate),
then members of the class might be able to participate in any settlement or recovery without
subjecting themselves to public disclosure. See, e.g., In re Ashley Madison Customer Data Sec.
Breach Litig., MDL No. 2669, 2016 U.S. Dist. LEXIS 46893, at *18-19 (E.D. Mo. Apr. 6, 2016).
The fourth factor weighs decidedly against allowing Moving Plaintiffs to proceed
anonymously. This is not a case that presents purely legal issues; it is a putative class action in
which each plaintiff or proposed plaintiff has a different story to tell, which they nonetheless
contend makes them “similarly situated” to others such that they can represent them on a classwide basis. The conclusory statement that Moving Plaintiffs are merely “seeking to litigate
private and highly-sensitive issues” (ECF 29-1 and 30-1 at 5) ignores the fact that they seek to
serve as class representatives in this highly-publicized putative class action. Indeed, the very
public nature of what a class representative is supposed to do – represent and stand in the place
of other plaintiffs – is at odds with the request to remain anonymous. Several courts have
expressly recognized this key difference between class members and class representatives. See,
e.g., Nazih v. Café Istanbul of Columbus, LLC, No. 17-cv-947, 2018 U.S. Dist. LEXIS 154283,
at *14-15 (N.D. Oh. Sept. 11, 2018) (noting class representatives are proceeding under real
names, which preserves the public’s ability to scrutinize judicial proceedings and weighs in favor
of opt-in plaintiffs’ proceeding anonymously); In re Ashley Madison Customer Data Sec. Breach
Litig., 2016 U.S. Dist. LEXIS 46893 at *18-19 (recognizing that because due process requires
class members be fairly and adequately represented, class representatives must disclose real

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names while class members may proceed under pseudonyms); Michael Bloomberg L.P., No. 14cv-2657, 2015 U.S. Dist. LEXIS 16683, at *9 (S.D.N.Y. Feb. 11, 2015) (noting that allowing
named class representatives to proceed anonymously “may also preclude potential class
members from properly evaluating the qualifications of the class representative”); Compact Info.
Sys., 2015 U.S. Dist. LEXIS 178930 at *18.
With regard to the fifth factor, Dartmouth’s counsel has not engaged in discovery with
Moving Plaintiffs and thus cannot directly comment on whether, subjectively, they would be
willing to pursue their claims if their names are revealed. However, Moving Plaintiffs must have
been aware that their attempt to proceed anonymously – and even their attempt to keep their
names under seal even in the limited filings made to date – is far from guaranteed. The standard
in this circuit for filing matters under seal is a stringent one, and requests to file matters under
seal are often denied. See, e.g., FTC v. Standard Financial Management Corp., 830 F.2d 404,
412-13 (1st Cir. 1993) (“[A]ppellants have not borne the heavy burden of exhibiting the
existence of special circumstances adequate to overcome the presumption of public accessibility”
to judicial records.); Bourne v. Town of Madison, No. 05-cv-365-JD, 2007 U.S. Dist. LEXIS
44916, at *4-5 (D.N.H. June 19, 2007) (“Based on the idea that democratic values are best
served by a transparent judicial system, the courts have long recognized a presumption that the
public has a common-law right of access to judicial documents . . . Bourne has not overcome the
presumption against sealing documents.” (internal quotations omitted)); Mangosoft, Inc. v.
Oracle Corp., No. 02-cv-545-SM, 2005 U.S. Dist. LEXIS 19644, at *7-8 (D.N.H. Sept. 9, 2005)
(denying parties’ joint motion to file summary judgment materials under seal for failure to show
particularized “good cause”). Moreover, in another pending, high-profile putative class action
brought in federal court in California, the same lawyers who represent Plaintiffs here were

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recently told that their clients likely would not be permitted to proceed anonymously, even
though the Defendant there did not oppose plaintiffs’ motion. See Dorothy Atkins, Judge Won't
Sanction

MoFo

Atty

Fired

At

8

Months

Pregnant,

LAW360

(Apr.

18,

2019),

https://www.law360.com/articles/1151304/judge-won-t-sanction-mofo-atty-fired-at-8-monthspregnant?copied=1Law360 (reporting that the Court informed counsel that “she doesn’t think the
plaintiffs should be allowed to proceed with their litigation using pseudonyms, even though
Morrison & Foerster agreed to it for now, because it would be precedent setting, it could
potentially harm the defense and it could make certification difficult, if not impossible.”).2
Plaintiffs, who are represented by the same lawyers, cannot claim surprise that their attempt to
join a different multi-million dollar class action lawsuit, as a class representative, requires that
they use their real names.
With respect to the sixth factor, Dartmouth does not accuse the Moving Plaintiffs of
being “nefarious” in bringing the Motions; it merely believes that Moving Plaintiffs’ attempt to
proceed anonymously is misplaced under the law.
As the Court has pointed out, the seventh factor “amounts to an acknowledgement that
there is a ‘universal interest in favor of open judicial proceedings,’ which weighs in favor of
disclosing plaintiffs identity.”

Dartmouth I at *17 (quoting Megless, 654 F.3d at 411).

Likewise, the eighth factor here favors disclosure. Although the Moving Plaintiffs are not public
figures, they are seeking to serve as class representatives, which means that the Court would
need to perform a “rigorous analysis” – well in advance of trial – of (among other things)
whether the Moving Plaintiffs are adequate representatives of the proposed class, and whether
their claims are typical of other putative class members. See Comcast Corp. v. Behrend, 569
2

The transcript is not yet publicly available, so Dartmouth is relying on the report of the hearing as set
forth in the referenced Law360 article.

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U.S. 27, 33 (2013) (“Repeatedly, we have emphasized that it may be necessary for the court to
probe behind the pleadings before coming to rest on the certification question, and that
certification is proper only if the trial court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.” (internal quotations omitted)); see also Fed. R.
Civ. P. 23.
With respect to the ninth factor, there has been no suggestion (nor could there be) that
Dartmouth’s request that the Court apply established law regarding the identity of parties is
illegitimately motivated, particularly given the real concerns with proceeding anonymously that
Dartmouth articulates herein.
II.

Prejudice to Dartmouth.

In considering the Motions, the Court must also look at the potential prejudice Dartmouth
would suffer if forced to proceed in a case where three of nine named plaintiffs are proceeding
with pseudonyms. See, e.g., Doe v. Trs. of Dartmouth Coll., No. 18-CV-690-JD, 2018 U.S. Dist.
LEXIS 189050 (D.N.H. Nov. 2, 2018) (“Dartmouth II”), at *11-12; ECF No. 29-1 and 30-1 at 3
n.2 (quoting Dartmouth II for the proposition that the different tests used by Courts to assess
requests for anonymity “generally cover the same issues and concerns.”). Practically speaking,
Dartmouth can only effectively investigate, address, and defend against these allegations if it is
able to speak with witnesses and other involved persons about the allegations, conduct full and
unfettered informal and formal discovery, and throughout that process say who the relevant
accusers are so that the witnesses, counsel and the Court can keep each of the nine separate
plaintiffs straight. Plaintiffs’ requested proposed order would provide (among other things) that
in addition to using a pseudonym in ECF filings, “Defendants shall not publicly disclose the
name or address of [each Jane Doe plaintiff] or any information from which her name could be

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deduced.” Plaintiffs’ Proposed Order Granting Plaintiff Jane Doe [2 and 3]’s Motion to Proceed
Under Pseudonym (May. 1, 2019), ECF No. 29-3 and 30-3 at 1. Although Moving Plaintiffs do
not define “publicly disclose,” their attorney has taken the position previously that an internallydistributed document preservation notice may not contain Jane Doe 1’s real name. Restricting
those types of communications – which extend far beyond public, ECF filings on the record –
would significantly prejudice Dartmouth. Indeed, faced with the order Plaintiffs seek, it is not
even clear whether Dartmouth’s counsel could coherently ask a percipient witness whether they
have any information to provide regarding Moving Plaintiffs’ allegations. Motion papers will be
just as confusing, with the need to distinguish Jane Doe 1, Jane Doe 2, and Jane Doe 3 from the
other six named plaintiffs.
These restrictions and burdens would be particularly unfair here, given Plaintiffs’ use of
publicity as a sword. Again, although Moving Plaintiffs say they want to proceed anonymously,
the other Plaintiffs and Plaintiffs’ counsel have sought out media coverage. In addition, when
preparing their complaint, Plaintiffs chose to include dozens of allegations that accuse – by name
– numerous Dartmouth faculty and administration of wrongdoing, despite the fact that
Dartmouth (and the individuals) vigorously dispute any suggestion that they did anything wrong,
much less contributed to the core allegations that underlie Plaintiffs’ claims. See, e.g., Amended
Complaint (May 1, 2019), ECF No. 28 at ¶¶ 30, 31, 35, 54.3 Plaintiffs thus chose to bring this
case, chose to style it as a putative class action seeking tens of millions of dollars, and chose to
drag numerous innocent, well-intentioned faculty and administrators into the public record in an
apparent effort to gain more publicity. Moving Plaintiffs should not be permitted, against that

3

Many of these allegations were unnecessary to Plaintiffs’ claims or, at a minimum, could have identified
these third parties by title rather than choosing to attach their names to these hotly disputed allegations.

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backdrop, to join the litigation and benefit from these publicity efforts, while simultaneously
prejudicing Dartmouth’s ability to prepare its defense.
CONCLUSION
Balancing all of the above factors, Moving Plaintiffs have failed to overcome the high bar
necessary to show that they should be permitted to proceed using pseudonyms. Accordingly, for
all of the foregoing reasons, the Court should deny Moving Plaintiffs’ request to use pseudonyms
for all purposes or, in the alternative, allow the use of pseudonyms only until the earlier of (a)
any discovery dispute relating in whole or in part to allegations involving these plaintiffs, or (b)
the class certification process.

Respectfully Submitted,
TRUSTEES OF DARTMOUTH COLLEGE
By their attorneys,
/s/ Joan A. Lukey
Joan A. Lukey (N.H. Bar ID #16246)
Justin J. Wolosz (pro hac vice)
Lyndsey M. Kruzer (pro hac vice)
CHOATE HALL & STEWART LLP
Two International Place
Boston, Massachusetts 02110
Telephone: (617) 248-5000
Fax: (617) 248-4000
joan.lukey@choate.com
jwolosz@choate.com
lkruzer@choate.com
Date: May 14, 2019

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CERTIFICATE OF SERVICE
I hereby certify that on May 14, 2019, I caused a true and correct copy of the foregoing
Motion, filed through the ECF system, to be served electronically on all counsel of record
identified on the Notice of Electronic Filing (and below) as registered participants, and that
copies will be sent via first class mail to those counsel who are not registered participants on the
ECF system.
Charles G. Douglas, III
DOUGLAS, LEONARD & GARVEY, P.C.
14 South Street, Suite 5
Concord, NH 03301
(Served via ECF)
David W. Sanford
Nicole E. Wiitala
SANFORD HEISLER SHARP, LLP
1350 Avenue of the Americas, 31st Floor
New York, New York 10019
(Served via ECF)
Deborah K. Marcuse
Steven J. Kelley
Austin L. Webbert
SANFORD HEISLER SHARP, LLP
111 S. Calvert Street, Suite 1950
Baltimore, MD 21202
(Served via ECF)

/s/ Joan A. Lukey
Joan A. Lukey

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