Felix v. Symantec Corporation ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 SEB INVESTMENT MANAGEMENT AB, individually and on behalf of all others 11 similarly situated, No. C 18-02902 WHA 12 Plaintiff, 13 v. ORDER RE REQUESTS TO PROCEED 14 SYMANTEC CORPORATION and PSEUDONYMOUSLY GREGORY S. CLARK, 15 Defendants. 16 17 Two non-party witnesses seek leave to proceed under monikers, “FE1” and “FE2,” to 18 preserve their privacy. Unusual circumstances, the particularities of the subject matter, and the 19 lack of prejudice to defendants (who most likely already know the non-party witness’ 20 identities) weigh in movants’ favor. Leave is GRANTED, to the extent stated below. This order 21 does not, however, decide FE1 and FE2’s requests for sealing their responses to other parties’ 22 administrative motions to seal. 23 In general, the public has every right to inspect court records. See Nixon v. Warner 24 Commnc’ns, Inc., 435 U.S. 589, 597 (1978). Our court of appeals has established a strong 25 presumption in favor of access. Public confidence in the administration of justice rests on 26 accountability — knowing to whom courts afford relief, against whom judgments run, and 27 1 why. See Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1096–97 (9th Cir. 2016), citing 2 United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). 3 When necessary, however, courts must weigh personal harm against the value of public 4 scrutiny. Courts may seal select records, such as those tending to spite, scandalize, or 5 irreparably harm. See id. at 1097. And, relevant for our purposes, both the United States 6 Supreme Court and our court of appeals have long recognized the need for certain parties to 7 proceed pseudonymously where identification might subject one to “harassment, injury, 8 ridicule or personal embarrassment,” such as an inmate cooperating as a witness, a mother 9 bringing an Establishment Clause claim in a small town, or, famously, a woman seeking an 10 abortion. See United States v. Doe, 655 F.2d 920, 922 fn. 1 (9th Cir. 1980); e.g., Doe v. 11 Madison School Dist. No. 321, 147 F.3d 832 (9th Cir. 1998); Roe v. Wade, 410 U.S. 113 12 (1973). 13 In Does I thru XXIII v. Advanced Textile Corporation, 214 F.3d 1058 (9th Cir. 2000), our 14 court of appeals permitted textile-factory workers in Saipan, who feared deportation to and 15 imprisonment upon arrival in China, to sue pseudonymously for wage and hour violations and 16 articulated the standard for evaluating requests to obscure a party’s name. “[A] party may 17 preserve his or her anonymity in judicial proceedings in special circumstances when the party’s 18 need for anonymity outweighs prejudice to the opposing party and the public’s interest in 19 knowing the party’s identity.” Id. at 1068–69. Courts balance the severity of, the party’s 20 vulnerability to, and the reasonable proximity of the threatened harm against any prejudice to 21 the opposing party and public interest in disclosure. Ibid. 22 The standard applicable to nonparties does not clearly differ from the standard for parties. 23 Nor do FE1 or FE2 suggest otherwise. Our court of appeals has maintained anonymity for 24 both nonparties and parties. For example, in a federal criminal matter at our court of appeals, a 25 decision concealed the identities of the minor defendant, his parents, a Tribal Administrator, 26 and indeed of the Washington state tribe itself. See United States v. Indian Boy X, 565 F.2d 27 585, 588 (9th Cir. 1977). In another matter, our court of appeals recognized the need for 1 a long prison sentence, so the “unusual case” warranted anonymity due to a “risk of 2 harassment, ridicule,” most relevant there, “injury, or personal embarrassment.” United States 3 v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1980). 4 This order finds that FE1 and FE2 may proceed by these monikers at this stage. First, 5 there will be no prejudice to the defendants, who likely know the parties’ identities and have 6 subpoenaed their testimony already. Second, FE1 and FE2 articulate reasonably proximate and 7 significant harms should their identity be disclosed. FE1 and FE2 work in a relatively close- 8 knit business community. As whistleblowers at a technology company, they reasonably claim 9 that current and future employers could learn about their prior whistleblowing. Those 10 companies could plausibly fire FE1 or FE2 or hire others due to this publicity. 11 Third, this order notes that the public — and justice — would suffer if courts fail to 12 protect whistleblowers from the possibility of retaliation for reporting information, both 13 internally and to the SEC, etc. Without reaching the merits of FE1 and FE2s’ allegations about 14 defendants, this order finds that the law protects whistle-blowers so that the truth can continue 15 to emerge. This matters. Reasonable minds may disagree about the actual degree of 16 professional harm (or personal embarrassment), but we focus on whether a reasonable person 17 would view the threat as credible. We do not evaluate the degree of threat. Our court of 18 appeals found credible the unquestionably far-fetched threat of deportation from a territory of 19 the United States and imprisonment in the People’s Republic of China in retaliation for 20 complaints against working conditions. See Advanced Textile, 214 F.3d at 1071–72. So too 21 here. This order finds FE1 and FE2 face a reasonably credible threat of some professional 22 harm. 23 Fourth, the threatened harm here for now outweighs the public interest in disclosure of 24 FE1’s and FE2’s names. The public interest in disclosure here lies in reviewing the record that 25 undergirds the orders in this action. A real interest lies, too, in the public’s watchful eye on the 26 credibility of the sources in that record. Confidential sources pose a small risk of lesser 27 credibility. But, as our court of appeals recognized, “[t]he public also has an interest in seeing 1 transparency dissuading future suits and a moniker-laced decision on the merits, the public 2 interest favors using with pseudonyms at this stage. 3 FE] and FE2 may proceed by their monikers in all filings. Both parties shall please do 4 the same. While the Court is aware of no filings containing FE1’s or FE2’s real names, 5 counsel shall diligently review filings to ensure that any documents not under seal contain 6 pseudonyms only. 7 In as much as the summary judgment motion herein has been stayed pending settlement, 8 the identities of the confidential witnesses may remain secret, and they may continue to 9 proceed with monikers FE1 and FE2. This is subject to change if the settlement craters. 10 To the extent stated above, the motions to proceed pseudonymously and the motions to 11 file under seal by FE] and FE2 are GRANTED. 12 13 v 14 IT IS SO ORDERED. O 15 4 16 Dated: August 9, 2021. / i Pee - Z 18 WILLIAM ALSUP 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28