[00:00:18] Speaker 02:
May it please the court my name is Kristen price representing the appellant and I'd like to again reserve two minutes for rebuttal as a survivor of serial sexual assault Jane Doe's need for protection far outweighs any interest the brothels might have in defending themselves in the media Under advanced textile the district court abused its discretion by concluding otherwise in three ways first

[00:00:42] Speaker 02:
It categorically refused to consider Jane Doe's need for privacy as a sexual assault survivor.

[00:00:48] Speaker 02:
Second, it allowed the brothel's public image to determine the outcome.

[00:00:52] Speaker 02:
And third, it discounted the public's interest in seeing civil rights cases proceed on their merits.

[00:00:59] Speaker 02:
So first, with respect to Jane Doe's height need for privacy,

[00:01:04] Speaker 02:
She needs protection on multiple grounds.

[00:01:06] Speaker 02:
Her experiences of sexual assault, the stigma of having been prostituted in a brothel, and potential physical harm from criminal actors.

[00:01:15] Speaker 01:
On that point, would you agree that the retaliation by defendants is not really at issue?

[00:01:28] Speaker 01:
Because even if

[00:01:29] Speaker 01:
we were to overrule the district court and allow your client to proceed under a pseudonym, the defendants would learn what the name of the plaintiff is.

[00:01:40] Speaker 02:
That's partly correct, Your Honor, but the plaintiff didn't just allege potential harm from the defendants.

[00:01:45] Speaker 01:
Oh, I understand.

[00:01:45] Speaker 01:
I'm limiting my question to would you agree that

[00:01:49] Speaker 01:
Retaliation from the defendants is not really an issue before us because whether we overrule the disk because even if we Overrule the district court.

[00:01:59] Speaker 02:
They'll know who your client is I Don't want to say that it wouldn't be an issue at all your honor I don't think you have to decide it or agree with that but because The terms of the protective order would limit how they could use the information I think there is a concern about retaliation by

[00:02:17] Speaker 02:
exposing her to harassment and and so on If I could going back to the privacy issue on sexual assault This privacy rule is routinely applied in this circuit specifically in

[00:02:38] Speaker 02:
that the plaintiff needs to preserve privacy in a matter of sensitive and highly personal information, which is separate from the retaliation basis for privacy.

[00:02:47] Speaker 02:
And the court just didn't consider it at all.

[00:02:51] Speaker 02:
She was sex trafficked.

[00:02:52] Speaker 02:
Sex trafficking itself involves a series of sexual assaults.

[00:02:55] Speaker 02:
And the rule is routinely applied in the circuit, including in the District of Nevada, to grant pseudonym status to sexual assault victims because the privacy concerns are inherent in the nature of those cases.

[00:03:07] Speaker 03:
Was it the case that the district court didn't address it at all?

[00:03:10] Speaker 03:
I mean, I read at ER 21 that the court afforded some weight to Doe's argument about

[00:03:20] Speaker 03:
making her vulnerable to sex, I guess this is more into psychological vulnerability.

[00:03:25] Speaker 03:
Was that related to retaliation or was it also related to psychological harm and social stigma?

[00:03:31] Speaker 02:
It was related to both but to the psychological harm more from the social stigma aspect.

[00:03:37] Speaker 02:
The court didn't examine or remark on the fact that she was a sexual assault victim at all in the decision.

[00:03:49] Speaker 02:
Even the court not only denied her the right to proceed under a pseudonym, but it also denied the protective order, which would have provided just certain protections from sensitive evidence about sexual abuse being made public.

[00:04:05] Speaker 02:
Failure to apply Ninth Circuit precedent by ignoring factors in a binding test is an abuse of discretion.

[00:04:10] Speaker 02:
And it was an abuse of discretion given that Jane Doe is a victim of serial sexual assault for the court below to just completely categorically ignore this factor.

[00:04:18] Speaker 02:
and conclude that her need for privacy and safety only weighed mildly in her favor.

[00:04:26] Speaker 00:
Well, did the court consider it or did the court not consider it or did the court consider it and simply weigh it not very heavily?

[00:04:34] Speaker 02:
It didn't consider at all the fact that her need for privacy as a sexual assault victim.

[00:04:38] Speaker 02:
It considered her risk of being retaliated against.

[00:04:43] Speaker 02:
And based on finding, the court decided it didn't think her fears of retaliation were reasonable.

[00:04:48] Speaker 02:
And so it said, OK, her interest in anonymity only weighs mildly in her interest on that basis.

[00:04:54] Speaker 02:
But it didn't deal with the sexual assault piece at all.

[00:05:01] Speaker 03:
Does Jane Doe face unique risks to her privacy or psychological harm that other sex trafficking victims might not?

[00:05:11] Speaker 03:
I took the tenor of the district court's analysis to be that what is being alleged is not unique to other

[00:05:20] Speaker 03:
sex trafficking victims, and therefore it's not sufficient to require a sit-in status, which I'm not sure that I agree with, but let's start with this.

[00:05:32] Speaker 03:
Are there particular allegations more specific to Jane Doe as to a unique fear of psychological harm or stigma?

[00:05:42] Speaker 02:
With respect to whether her fears are unique, Judge Sanchez, when it comes to privacy on the basis of someone being a sexual assault victim, it's not necessary to show that it's unique because the courts have recognized, I believe in,

[00:06:03] Speaker 02:
I believe it might have been in Doe versus Steele, basically saying that the privacy interests are inherent because of the nature of the allegations.

[00:06:10] Speaker 02:
So it doesn't have to be unique.

[00:06:11] Speaker 02:
It's retaliation where, especially in the employment context, a plaintiff has to show more, show that they're somehow different from other employment plaintiffs.

[00:06:24] Speaker 02:
And so it doesn't matter in that sense.

[00:06:28] Speaker 02:
In another sense, because of the social stigma of having been in a brothel, she is more vulnerable and does have more unique privacy needs because of that.

[00:06:39] Speaker 02:
And the District of Nevada in Sears versus Mid Valley recognized that brothel prostitution was uniquely stigmatizing

[00:06:48] Speaker 02:
and contrasted it with other court cases in the employment context that dealt with people who were in strip clubs and said being in a brothel is a lot more stigmatizing than being in a strip club and also you have the unique risk of sex buyers trying to track you down.

[00:07:05] Speaker 02:
And the court below said that the plaintiffs

[00:07:09] Speaker 02:
Concern about sex buyers trying to track her down was conclusory, even though one had already tried and had admitted that to the court.

[00:07:16] Speaker 02:
There was a sex buyer who tried to intervene in the case at one point.

[00:07:19] Speaker 02:
And the court had his intervention before it.

[00:07:22] Speaker 02:
And he admitted that he'd been asking around one of the brothels trying to figure out who she was.

[00:07:27] Speaker 02:
And the court still said the plaintiff's fears were conclusory.

[00:07:32] Speaker 01:
So counsel, I'm going to ask your friend this question.

[00:07:35] Speaker 01:
One of the things the district court said, and I quote, the public has an interest in assessing Doe's credibility.

[00:07:46] Speaker 01:
Is it your view that this is a legitimate factor for the district court to consider whether the public has an interest in assessing your client's credibility?

[00:07:55] Speaker 02:
No your honor this is not a valid factor under the public interest test the district court didn't cite any authority for that point.

[00:08:03] Speaker 01:
Are you aware of any?

[00:08:05] Speaker 02:
I'm not aware of any your honor.

[00:08:08] Speaker 02:
The public right to assess the victims credibility isn't part of how the public interest is assessed under the DOE factors and at this stage specifically especially at this stage of the case of course the plaintiff has

[00:08:23] Speaker 02:
recognize that at trial her credibility will obviously be of interest to the jury.

[00:08:30] Speaker 02:
But this case is pre-discovery.

[00:08:33] Speaker 02:
No fact investigation has taken place.

[00:08:35] Speaker 02:
And Doe versus textile makes it very clear that there is a public interest in civil rights cases proceeding on their merits.

[00:08:45] Speaker 02:
And so the court didn't really analyze that piece of the public interest at all and essentially substituted a different factor this

[00:08:52] Speaker 02:
public assessment of a victim's credibility.

[00:08:55] Speaker 03:
But you would agree there's a default public interest in open access to the courts and judicial proceedings.

[00:09:02] Speaker 03:
I mean, we're here today with an audience of UNLV members that are listening to our arguments because it's important for the public to understand the nature of the cases and what we do as a judiciary.

[00:09:15] Speaker 03:
Do you think proceeding under a pseudonym

[00:09:21] Speaker 03:
somehow prevents the public from being able to learn the details of the case or the nature of what goes forward in this case?

[00:09:28] Speaker 02:
No, Your Honor.

[00:09:29] Speaker 02:
Allowing the plaintiff to proceed under a pseudonym would not obstruct, I think the language of textile is the important issues in this case.

[00:09:38] Speaker 02:
Of course, the default is open proceedings and the plaintiff

[00:09:42] Speaker 02:
litigating under a pseudonym, which is extremely common in this circuit for trafficking victims, wouldn't in any way hamper the public's ability to know about the case, learn about it, examine the issues.

[00:09:54] Speaker 02:
And the district court didn't really identify a specific way, nor did the defendants, that Jane Doe being under a pseudonym would obstruct the public's view of the case, as it was required to do under textile.

[00:10:08] Speaker 01:
Counsel, I'm also going to ask this question to your friend.

[00:10:11] Speaker 01:
District Court said that the fact that doe has actively sought to litigate this case in the public Lends credence to the brothel defendants concern that a protective order limiting their ability to respond in the same public arena Would be credit prejudicial.

[00:10:28] Speaker 01:
What is the plaintiff's view of that factor?

[00:10:32] Speaker 02:
the plaintiff's view is that

[00:10:35] Speaker 02:
modest, at time of filing, public advocacy by plaintiff's counsel is not the plaintiff trying to litigate the whole case in the public eye such that the defendants would be prejudiced, but the prejudice, the nature of

[00:10:52] Speaker 02:
I think the court referenced a case where plaintiff had done something like that, but had also not taken care to protect her identity in so doing and it sent out an evidence preservation with her name.

[00:11:03] Speaker 02:
I think that was Doe versus City of Las Vegas.

[00:11:05] Speaker 01:
Was there any argument like that made by defendants here that the plaintiff's name was already out there?

[00:11:11] Speaker 02:
No, the defendants didn't argue that, Your Honor, and it wasn't.

[00:11:14] Speaker 02:
The plaintiff herself didn't do any media.

[00:11:16] Speaker 02:
It was just her counsel giving

[00:11:17] Speaker 02:
a summary of the complaint, essentially.

[00:11:20] Speaker 03:
Well, wasn't there an allegation or a contention that Jane Doe was present at a press conference that counsel was giving?

[00:11:26] Speaker 02:
No, Your Honor, she wasn't present at any press conference.

[00:11:29] Speaker 02:
She didn't give any interviews.

[00:11:30] Speaker 03:
And her identity was not disclosed?

[00:11:32] Speaker 02:
Absolutely not.

[00:11:33] Speaker 02:
And we were even careful not to disclose facts from the complaint that, if highlighted, maybe could point someone to her identity.

[00:11:42] Speaker 02:
So we were particularly careful on that to not

[00:11:46] Speaker 02:
sure anything that could even conceivably be revealing.

[00:11:49] Speaker 00:
Does your argument include any kind of a temporal sliding scale notion?

[00:11:55] Speaker 00:
That is, this case is at its very early stage.

[00:11:59] Speaker 00:
I don't think there's even been a 12b6 motion.

[00:12:05] Speaker 00:
Should the district court or should the district court more carefully have considered the temporal aspect?

[00:12:11] Speaker 00:
Early in the case, a plaintiff ought to be protected

[00:12:16] Speaker 00:
anonymity protected more.

[00:12:18] Speaker 00:
Later in the case, it's going to trial.

[00:12:20] Speaker 00:
The trial is going to be public.

[00:12:21] Speaker 00:
Maybe at that point, it's time to reveal the plaintiff's identity.

[00:12:27] Speaker 00:
Is there a temporal aspect to your argument or that the district court should have considered a temporal aspect?

[00:12:36] Speaker 00:
Maybe give your client some grace early on and then later be more stringent in applying the factors?

[00:12:45] Speaker 02:
Is that an argument that you're making yes your honor that is an argument we're making because under textile the district court was supposed to consider the prejudice to the defendants

[00:12:54] Speaker 02:
at that stage in the case and consider whether the proceedings could be structured to mitigate it.

[00:12:59] Speaker 02:
And the district court did in fact conclude that the protective order would have mitigated, would mitigate any kind of, I suppose, discovery prejudice, but still denied it because of basically saying it's going to be hard for the brothels to defend themselves in the media.

[00:13:17] Speaker 02:
So we're absolutely arguing that the court should have at least considered the stage of the case and whether the brothels will be prejudiced by Jane Doe proceeding under a pseudonym through discovery.

[00:13:43] Speaker 02:
If I could say one other thing under the abuse of discretion with respect to prejudice, Your Honors.

[00:13:53] Speaker 02:
This is actually exactly like what the court found to be an abuse of discretion in textile.

[00:13:59] Speaker 02:
And in that case, the plaintiffs weren't even willing to disclose their names under the terms of a protective order.

[00:14:04] Speaker 02:
That district court also concluded adverse publicity would prejudice the defendants without seeing how, and those defendants on appeal also failed to explain how knowing the plaintiff's names would help them counter that publicity.

[00:14:15] Speaker 02:
And so too here.

[00:14:17] Speaker 02:
This is all entirely hypothetical in the sense that the brothels haven't really attempted to defend themselves in the media, and they haven't identified any negative publicity where being able to name Jane Doe would help them to respond.

[00:14:33] Speaker 02:
The district court's conclusion was also an abuse of discretion and unreasonable, given what the defendants had already said they wanted to use the media for.

[00:14:42] Speaker 02:
In their filings, I believe in their earliest filing, they said they wanted to use the press to investigate Jane Doe's credibility and motivations, which is a little bit different from we're getting all this negative publicity and we can't respond to it.

[00:14:55] Speaker 02:
They also said, the counties also said that Jane Doe forfeited any privacy rights when she, in their words,

[00:15:02] Speaker 02:
deemed to become a licensed sex worker.

[00:15:06] Speaker 02:
The court below saw this not as a red flag, but as a green light, ultimately valuing the Pimp's reputation over Jane Doe's welfare.

[00:15:18] Speaker 02:
And just to highlight with respect to the public interest, the court in textile said that a district court must evaluate what would best serve the public interest

[00:15:28] Speaker 02:
and explain that the public has an interest in seeing civil rights cases be decided on their merits.

[00:15:34] Speaker 02:
And then the district courts in this circuit have also emphasized the public interest in sexual assault victims not being deterred from coming forward.

[00:15:42] Speaker 02:
And the court didn't examine either of those under its public interest analysis.

[00:15:55] Speaker 02:
The district court's decision sets a chilling precedent for survivors of sexual abuse.

[00:16:00] Speaker 02:
In denying a sex trafficking victim, even the protections commonly afforded a business's trade secrets.

[00:16:06] Speaker 02:
Jane Doe should not be forced to choose between safety for herself and accountability for her traffickers, and unless there, and she asked this court to reverse, and unless there are other questions, I will reserve.

[00:16:19] Speaker 01:
Thank you.

[00:16:19] Speaker 02:
Thank you.

[00:16:28] Speaker 04:
Good morning your honors may it please the court my name is Courtney sweet, and I'm here on behalf of the brothel defendants The district court did not abuse its discretion when it determined that the public interest and the prejudice to these defendants outweighed Jane Doe's claims need for anonymity and abusive discretion only occurs when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances and

[00:16:57] Speaker 04:
The district court here correctly determined that the public interest and knowing the individual behind the latest in a series of lawsuits that are attacking the legal brothel system in Nevada combined with the presumption of public access to the courts and that parties will litigate under their own names and the prejudice to the brothel defendants.

[00:17:17] Speaker 04:
outweighed Jane Doe's claims need for anonymity, especially with the evidence that she presented or failed to present at the district court level.

[00:17:24] Speaker 01:
Mr. Council, let me start with some of my concerns with the district court's order.

[00:17:29] Speaker 01:
The district court stated the public has an interest in assessing Doe's credibility.

[00:17:37] Speaker 01:
Do you have any case that says that the public has an interest in assessing a plaintiff's credibility?

[00:17:45] Speaker 04:
Yes, Your Honor.

[00:17:46] Speaker 04:
Richmond newspapers, that is something that specifically if you look at Justice Brennan's concurrence, public trials aid and accurate fact finding and Justice Brennan in that concurrence also discussing

[00:17:58] Speaker 04:
the information leading up to trial.

[00:18:01] Speaker 04:
If I may quote from this concurrence, publicizing trial proceedings aids accurate fact-finding.

[00:18:07] Speaker 04:
Public trials come to the attention of key witnesses unknown to parties, which would be part of assessing that person's credibility.

[00:18:13] Speaker 04:
Justice Brennan also stated, mistakes of fact and civil litigation may inflict costs upon others than the plaintiff and defendant.

[00:18:21] Speaker 04:
Facilitation of the trial fact-finding process therefore is of concern to the public as well as to the parties.

[00:18:27] Speaker 01:
Well, counsel, I don't see what Justice Brennan said as saying anything remotely like the public has an interest in assessing Doe's credibility.

[00:18:39] Speaker 01:
Certainly the jury would have an interest or the trial judge, if it's a bench trial, would have a requirement to assess the plaintiff's credibility.

[00:18:48] Speaker 01:
But the idea that her name should be out there so the public

[00:18:52] Speaker 04:
Reading newspapers can decide whether she's telling the truth or not it makes no sense to me that that's a relevant factor Certainly honor, and that's why the first quote that I read about facility facilitating the public and finding Key witnesses that does not occur at trial that certainly would have to occur prior to trial.

[00:19:09] Speaker 04:
Yeah, but you'll know who the plaintiff is right We would your honor, but that does not change what Justice Brennan stated There is stating in the public fact-finding process if Jane Doe's name is not to the public

[00:19:20] Speaker 04:
I would also draw your attention to Southern Methodist University, which specifically talked about the credibility of the individuals who are making the allegations in that particular case.

[00:19:31] Speaker 04:
and also in wind resorts.

[00:19:32] Speaker 04:
So that's three cases where the public's interest in assessing the anonymous party's credibility was of a matter of public interest.

[00:19:40] Speaker 01:
I may read those cases differently than you, but thank you for your answer.

[00:19:44] Speaker 01:
When we're looking at advanced tech tile, we said, and I quote, the public also has an interest in seeing this case decided on the merits.

[00:19:55] Speaker 01:
Certainly.

[00:19:56] Speaker 01:
Did the district court address that specific factor in its order?

[00:19:59] Speaker 04:
Yes the district court did address consideration of these on the merits if you'll give me just a moment to consult my notes here that was in let's see it was I believe in pages 63 and 64 of the record is where the

[00:20:15] Speaker 04:
the district court considered that.

[00:20:17] Speaker 04:
And you'll recall as well that this was a motion to dismiss.

[00:20:19] Speaker 04:
There was also then a motion for protective order and a motion for reconsideration.

[00:20:23] Speaker 04:
So the district court had three, there's three sets of briefing and then two separate orders denying the motion for protective order and then also denying the motion for reconsideration where the district court considered those factors.

[00:20:36] Speaker 04:
And the district court also considered the issue that, again, this is a part of a series of lawsuits brought by the same law firm,

[00:20:45] Speaker 04:
attacking Nevada's legal brothel system.

[00:20:47] Speaker 04:
And so recognizing the context of that, that there is a public interest in knowing who is the face behind this latest in the series of lawsuits.

[00:20:55] Speaker 03:
Why is there a public interest in that?

[00:20:57] Speaker 03:
I mean, if Jane Doe proceeds under a pseudonym status, the public would understand the nature of the claims and being levied against the brothel defendants, how much they would hold up, what the defenses are, much of what would occur without having to divulge her identity.

[00:21:16] Speaker 03:
So how is the public interest being undermined by not revealing just her identity?

[00:21:23] Speaker 04:
And that's where the district court clearly recognized that this is a series of lawsuits and the district court referred to that several times as you pointed out earlier with my friend.

[00:21:32] Speaker 04:
This is the latest a series of lost but this is a different plaintiff is it not.

[00:21:36] Speaker 04:
We don't know.

[00:21:37] Speaker 03:
Allegedly it's a different plaintiff we we don't know why why why within tell me why the fact that there are different lawsuits at play somehow lessens the the the privacy or social stigma interest for example.

[00:21:52] Speaker 04:
Well, the privacy and social stigma, I disagree with my friend in her argument earlier.

[00:21:56] Speaker 03:
But let's just stick with the multiple lawsuits piece of it.

[00:22:00] Speaker 03:
How does that factor in?

[00:22:01] Speaker 04:
The lawsuits are substantially similar.

[00:22:04] Speaker 04:
They're almost identical and they are all brought by the same law firm and they make substantial allegations about

[00:22:10] Speaker 04:
the context of the legal brothel system in Nevada, which is something that's been created by our elected legislature.

[00:22:16] Speaker 04:
So they're not one-off lawsuits that exist independent of one another.

[00:22:22] Speaker 04:
They are substantially similar, each of these lawsuits that have been brought one after the other by the same law firm with purportedly different plaintiffs.

[00:22:31] Speaker 04:
We cannot confirm that.

[00:22:32] Speaker 01:
I'm having trouble understanding with respect counsel how you answer, that that's an answer to Judge Sanchez's question.

[00:22:39] Speaker 01:
I understand what you're saying, but I don't understand how those facts which you recited which I'm sure are facts has anything to do with why this plaintiff should or shouldn't be allowed to proceed under a pseudonym.

[00:22:59] Speaker 01:
Why does the fact

[00:23:00] Speaker 01:
that there were multiple prior lawsuits have anything to do with whether Jane Doe should be allowed to proceed, at least at the initial stages of the lawsuit, as Jane Doe.

[00:23:12] Speaker 04:
And, Your Honor, the district court there considered that as a relevant factor.

[00:23:16] Speaker 01:
But I'm asking you why.

[00:23:18] Speaker 01:
I have trouble understanding why it's a relevant factor as to whether she should be allowed to proceed with a pseudonym.

[00:23:27] Speaker 01:
So I'd like you to try to explain to me why it's relevant that there are prior lawsuits with the same lawyers, that that should mean that Jane Doe shouldn't be allowed to proceed under a pseudonym.

[00:23:40] Speaker 04:
Because she is the face of this lawsuit.

[00:23:42] Speaker 04:
And as you have heard from my friend, she has been very clear that this person has been sex trafficked, and this is all because of the legal brothel system in Nevada.

[00:23:53] Speaker 04:
She is the face of that that should be put forth here.

[00:23:57] Speaker 01:
With respect counsel, I don't really understand that as an answer to my question, but I'll move to a different word.

[00:24:04] Speaker 03:
I was gonna ask, do you agree that the district court did not address the privacy social stigma component to this as a separate important interest, separate from retaliation?

[00:24:19] Speaker 04:
I do not agree.

[00:24:20] Speaker 04:
I believe that the record is clear that the district court did consider that factor.

[00:24:25] Speaker 03:
Tell me where, what is your sense of where the court touched on that particular factor?

[00:24:30] Speaker 04:
That was I believe on page 63 to 64.

[00:24:33] Speaker 04:
The district court said that they've considered other lawsuits where similarly situated plaintiffs were

[00:24:41] Speaker 04:
requesting anonymity and that the record pointed in different directions.

[00:24:48] Speaker 03:
I didn't really see those cases as being that relevant.

[00:24:51] Speaker 03:
You had one person who frequented, I think, a brothel, and then you had other cases that the district court talks about that are about exotic dancers and potential employment-related retaliation.

[00:25:03] Speaker 03:
None of those cases related to a sex trafficking victim and the particular social stigma to that.

[00:25:10] Speaker 03:
So if those are the cases, then I would tend to agree with your friend on the other side that the court didn't address that particular interest.

[00:25:17] Speaker 04:
And your honor I what I would draw your attention to is the district court did look at sex trafficking in general.

[00:25:25] Speaker 04:
The case or I'm sorry the statute this TV PA that these lawsuits were based on does not create a presumption of anonymity for the people who are bringing a civil right of action so the.

[00:25:37] Speaker 04:
Congress, when it created these laws, did create a private right of action, but it did not say that a person can be anonymous when they bring this.

[00:25:45] Speaker 04:
So that is why the district court has to perform its analysis to determine whether this particular plaintiff met the regular standard.

[00:25:54] Speaker 04:
And she did, in fact, consider that this is a sensitive and highly personal nature, but that this plaintiff did not bring anything that made her specific allegations different from any trafficking victim or anyone else who's engaged in the legal.

[00:26:07] Speaker 01:
relevant factor if you have for example a group of people who suffer a great amount of harm and could suffer a great amount of harm and say it's even

[00:26:23] Speaker 01:
all class members a great amount of harm from the disclosure of their name, why does the fact that this harm would be suffered by 50 people diminish the harm suffered by the one person who's a plaintiff here?

[00:26:40] Speaker 04:
So there is not a rubber stamp that says if somebody says that they've been sex trafficked or that they've been a victim of sex trafficking or that they're a legal prostitute, they automatically are granted anonymous status.

[00:26:52] Speaker 01:
I agree with that, but it seemed to me the district court was saying that this is at best a risk of stigma all individuals bringing sexual exploitation claims face at page 63.

[00:27:08] Speaker 01:
And even if that's true,

[00:27:11] Speaker 01:
Why is the fact that others would suffer the stigma as well mean that that's a factor that counts against this plaintiff who says she'll suffer stigma?

[00:27:21] Speaker 01:
I understand your argument that she didn't make that out well enough.

[00:27:25] Speaker 01:
That's a different point.

[00:27:26] Speaker 01:
The district court said, well, it cuts against her because everybody in her position would suffer this alleged stigma.

[00:27:34] Speaker 01:
Why is that a factor that cuts against her?

[00:27:37] Speaker 04:
That is one of the Ninth Circuit tests of you have to show particularized harm, whether it's retaliation or anything else, you have to show that your harm is different from anyone else's, whether that's through retaliation or through social stigma.

[00:27:51] Speaker 01:
I think you have to show particularized harm, but I don't think you have to show that others don't suffer harm, too, if their names were out there.

[00:27:59] Speaker 04:
And I understand what you're saying they're distinguishing between anyone who is out alleging sex trafficking and somebody who is showing that they would be harmed if their name becomes public.

[00:28:09] Speaker 04:
And what the district court correctly found here was that this Jane Doe did not show anything that differentiated her between anyone who was going to be making allegations of sex trafficking.

[00:28:19] Speaker 03:
What kind of allegations would you, would one, I was trying to think of this, if these allegations weren't sufficient, what would it be just, you know, my social stigma is particularized because I've had to go to counseling for it and I'm alleging that I am getting therapy for it.

[00:28:37] Speaker 03:
What different sets of allegations would somehow convert this case into one that would be less conclusory in your view?

[00:28:47] Speaker 04:
And that is certainly something that I have seen in other cases addressing this, saying that they've suffered ongoing mental harm, have had to seek therapy, that they've had a stigma in their community, that family members would face stigma.

[00:29:00] Speaker 04:
There certainly have been more specific allegations where parties have made those allegations and the district court considered them and determined that they met their burden to show that there was some sort of social stigma there.

[00:29:12] Speaker 04:
And I'll remind your honors that the district court in weighing these factors did find in favor of the plaintiff to say that she did show that she had some social stigma and that this factor did consider in her favor.

[00:29:25] Speaker 04:
So remember that.

[00:29:27] Speaker 03:
It was a little mealy-mouthed.

[00:29:29] Speaker 03:
It afforded some weight.

[00:29:32] Speaker 03:
I'm looking at ER 62.

[00:29:35] Speaker 03:
But these are ultimately conclusory statements which apply broadly to anyone in the industry.

[00:29:39] Speaker 03:
It wasn't really clear to me what weight the judge actually did afford to this.

[00:29:46] Speaker 04:
And because there were no specific allegations of harm.

[00:29:49] Speaker 04:
But again, the district court did ultimately find that there was a favor in favor of anonymity based on the social stigma or harm there.

[00:29:59] Speaker 04:
What she ultimately decided, though, was that that was not outweighed by the public interest and the harm to the defendants.

[00:30:05] Speaker 01:
That's one other area I wanted to ask you about, and I'm on page 65 in the carryover paragraph.

[00:30:12] Speaker 01:
We've already discussed, the district court said, the fact that DOE has actively sought to litigate this case in the public eye.

[00:30:20] Speaker 01:
Part of similar cases brought by the same attorneys we've we've discussed that already, but then the district court goes on Lends credence to the brothel defendants concern that a protective order limiting their ability to respond in the same public arena would be prejudicial What limit would there be on the brothel defendants?

[00:30:43] Speaker 01:
ability to respond in the same public arena other than naming, than providing the name of the plaintiff.

[00:30:54] Speaker 04:
Without knowing who the plaintiff is and being able to name the plaintiff, the brothels cannot respond to the level of specificity to the allegations that have been brought against them.

[00:31:05] Speaker 04:
So her name and her context, her story, is certainly relevant now.

[00:31:10] Speaker 04:
Again, we don't know who she is.

[00:31:13] Speaker 01:
But you've given an answer to my question, and give me more if you have it, as to what would

[00:31:23] Speaker 01:
Limit your ability to respond in the same public arena that would be prejudicial so You've talked about you couldn't mention her name And I understand that that's obviously part of it is there anything else that would be?

[00:31:38] Speaker 01:
Prejudicial from this protective order other than not being able to mention Jane Doe's real name to the prejudicial on your ability to respond in the public and

[00:31:50] Speaker 04:
Certainly, Your Honor, without knowing the specifics of this Jane Doe.

[00:31:55] Speaker 04:
But you can imagine a lot of context that may be specific to her that would undermine her claims of need for anonymity, such as her history and the working legal brothel industry, things like that, that, as my friend said, may be considered something that could be fairly traceable or identifiable to her by her name, and would therefore not be allowed to be discussed in the public arena.

[00:32:20] Speaker 01:
So you wouldn't be able to talk about her name, and if she'd been arrested, you wouldn't be able to say, this person who's suing us, look at her.

[00:32:30] Speaker 01:
She's been arrested, or she's been convicted, or she got a DUI last year, or she flunked out of high school.

[00:32:38] Speaker 01:
You wouldn't be able to say those things.

[00:32:40] Speaker 04:
Certainly not.

[00:32:40] Speaker 04:
I don't mean in that context, Your Honor.

[00:32:42] Speaker 04:
I mean if she's been working in the legal brothel industry for decades without incident,

[00:32:46] Speaker 04:
Or if there is context in these allegations again might the brothel defendant strongly strongly dispute the factual allegations that she has made so if we can address you know Whether she was in fact present during any of the actions that were alleged or if she in public in in public or at the brothels themselves No, no, I mean you wouldn't be able to allege them in public because once you find out who she is you'll certainly be able to allege them in the lawsuit

[00:33:12] Speaker 04:
Exactly.

[00:33:13] Speaker 04:
And when we're talking about defending ourselves in the public, I'm not talking about she dropped out of high school.

[00:33:17] Speaker 04:
I'm talking about there are extremely explicit allegations that have been made in the public against the brothel defendants.

[00:33:25] Speaker 04:
And we have not been able to respond to those.

[00:33:27] Speaker 04:
And again, if the protective order sought by counsel would prevent us from not just the name, but any identifying information, as my friend described earlier, that could be traceable back to identifying her, that would certainly limit our ability to respond in the public.

[00:33:42] Speaker 03:
Let me ask a related question to this topic.

[00:33:46] Speaker 03:
Is there a right to prosecute a case in public, in trial?

[00:33:51] Speaker 04:
But there is a bedrock principle that these are public proceedings and so the press freedom is obviously something that is a big part of that as well, but we're not talking about press freedom We're saying just you know the is there a right for people to because then then why would we allow gag orders?

[00:34:09] Speaker 03:
to be imposed on counsel on both sides in particular cases and

[00:34:14] Speaker 04:
And those are something that's only limited or allowed in limited circumstances.

[00:34:18] Speaker 04:
There is always a presumption of openness, a presumption of transparency within within a judicial proceeding.

[00:34:25] Speaker 03:
But we're talking about outside and whether the brothels would want to say additional details that they can't otherwise say because of the protective order.

[00:34:33] Speaker 03:
Do they have a right in some sort of traceable right to be able to prosecute their case in public?

[00:34:40] Speaker 04:
I wouldn't say prosecute their case, but certainly to defend themselves.

[00:34:43] Speaker 04:
That is certainly something to be able to speak in public to defend themselves against allegations that have been made in public.

[00:34:49] Speaker 04:
And I would draw your attention to footnote two of our reply brief here.

[00:34:53] Speaker 04:
I'm sorry, our briefing.

[00:34:57] Speaker 04:
Website that is labeled and slavery in Nevada I don't okay.

[00:35:02] Speaker 01:
That's okay.

[00:35:02] Speaker 01:
I'll find it.

[00:35:03] Speaker 04:
It's footnote to I believe it's page four, but Got it.

[00:35:06] Speaker 01:
Thank you.

[00:35:07] Speaker 04:
Yes, and it draws your attention to a website that exists right now and slavery in Nevada that links to the Complaint that was filed in this case so my friend said that there's nothing that's been publicized that would draw attention to the specific facts in this case, but there is there is a loss or a website by

[00:35:26] Speaker 04:
the plaintiffs in this case that says end slavery in Nevada and links to this.

[00:35:30] Speaker 01:
I may have misunderstood your friend, but I thought she was saying there was nothing in public about who the plaintiff is, but she'll have time to address this in rebuttal, and I may have misheard her.

[00:35:40] Speaker 04:
And I may have misunderstood, but my understanding was that she said there's nothing about the allegations in the complaint that are traceable to her that have been made public, and that is not correct.

[00:35:52] Speaker 00:
What about the temporal aspect that I asked your friend?

[00:35:56] Speaker 00:
Should a district court, should this district court have considered the life of the case, the point that we are in the case right now, very early on, and have considered that the various elements can change in terms of their severity or absence of severity over time?

[00:36:18] Speaker 04:
Certainly.

[00:36:19] Speaker 04:
And the district court did consider that.

[00:36:20] Speaker 04:
But finding that the immediate harm to the plaintiffs, I'm sorry, to the brothel defendants

[00:36:25] Speaker 04:
was the public nature of this case that already existed.

[00:36:28] Speaker 04:
She found that the protective order that had been proposed would not be effective to do that.

[00:36:34] Speaker 04:
And that also that the plaintiff had proposed a mutual protective order that, again, the barn door has already happened.

[00:36:43] Speaker 04:
The allegations against my clients and the brothel defendants are already out in public.

[00:36:47] Speaker 04:
So the mutual protective order that was also proposed by Jane Doe would not be effective.

[00:36:52] Speaker 04:
I see I'm almost out of time.

[00:36:54] Speaker 01:
You actually are out of time.

[00:36:56] Speaker 01:
Oh dear.

[00:36:56] Speaker 01:
But if you have a concluding remark, that's fine.

[00:36:58] Speaker 01:
I do.

[00:36:58] Speaker 04:
I do.

[00:36:58] Speaker 04:
Thank you.

[00:36:59] Speaker 04:
I wanted to just emphasize, again, the balancing test the district court engaged in here is a clear error review.

[00:37:05] Speaker 04:
So whether this court would have found differently is not the standard here.

[00:37:10] Speaker 04:
The standard is, did the court commit a clear error in weighing these different factors, considering what was before her?

[00:37:17] Speaker 04:
And we would submit that the district court did not.

[00:37:20] Speaker 04:
Thank you.

[00:37:21] Speaker 01:
Thank you.

[00:37:30] Speaker 02:
Three quick things on rebuttal, Your Honors.

[00:37:33] Speaker 02:
First of all, just to clarify about the plaintiff's public information, the plaintiff's counsel in the press conference that defendants mentioned did not share anything revealing about the plaintiff's identity and largely focused on the brothel's systemic practices.

[00:37:51] Speaker 02:
The complaint, of course, is available on the plaintiff's counsel website, but absolutely reveals nothing of the plaintiff's identity.

[00:37:59] Speaker 02:
and then secondly with respect to the factual allegations in the complaint and the brothels ability to defend itself defend themselves in public

[00:38:10] Speaker 02:
Much of what the complaint alleges are the brothel's systemic practices, which were not specific to Jane Doe, although they did, of course, harm her.

[00:38:20] Speaker 02:
And if those are not their practices, then of course they can say so without using her name.

[00:38:24] Speaker 02:
And then third and finally, on the privacy interests of sexual assault victims, I just wanted to note that the plaintiff is not aware of any case that has denied a pseudonym to a sex trafficking victim in this circuit.

[00:38:37] Speaker 02:
And there are very few

[00:38:39] Speaker 02:
Cases that even denied it to a sexual assault victim one that may have been mentioned in the decision below JBF versus RAK LLC which is district Nevada case dealt with a situ a kind of a factually unusual situation where the plaintiff was suing her ex it was an abusive kind of relationship, but he had promised her all these luxury items and some of the relief that she was seeking was for the court to force him to give her like the luxury of

[00:39:08] Speaker 02:
Automobile he had promised and some things like that and the court said this is a little odd This is putting your credibility at issue in a way that's not usually a case with sexual assault victims And so it's a very distinguishable case that other cases have recognized as being quite unusual And if there are no other questions from the panel Did you have any?

[00:39:27] Speaker 03:
Thing to weigh in on about that should the fact that multiple lawsuits have been filed Enter into our analysis on synonymity

[00:39:37] Speaker 02:
No your honor in the Williams case the plaintiffs were actually granted one plaintiff was suing in her real name, but the plaintiffs were all granted To proceed under the terms of a protective order for their information and then there are two Jane Doe plaintiffs where the court granted them the pseudonym

[00:39:54] Speaker 03:
But does the factor of a law firm suing multiple times, perhaps with different plaintiffs, perhaps not, does that weigh one way or the other on whether this particular Jane Doe plaintiff should proceed anonymously?

[00:40:10] Speaker 02:
No, Your Honor, it doesn't come into the factors at all.

[00:40:12] Speaker 02:
Her need for privacy is what really ought

[00:40:15] Speaker 02:
Determine the outcome because it is so severe between her being a sexual assault victim and also Receiving threats from organized crime and all these very severe things and so it shouldn't matter that there are other cases Where plaintiffs might have similar interests or need for protection?

[00:40:31] Speaker 01:
All right, thank you.

[00:40:32] Speaker 01:
Thank you.

[00:40:32] Speaker 01:
Thank counsel for their arguments The case just argued is submitted and with that we'll take a 10-minute recess before we get to the final two cases on the argument