Alleged Panama Papers Leaker Allowed to Proceed Pseudonymously in Breach of Contract Lawsuit Against Germany

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From Doe v. Fed. Republic of Germany, decided today by Chief Judge James Boasberg (D.D.C.):

Plaintiff claims to be the source of the Panama Papers, a set of leaked documents that revealed a global network of tax evasion and offshore holdings. He is proceeding pro se in this breach-of-contract lawsuit against Germany and its federal criminal police agency to recover money that they allegedly owe him as part of Germany’s agreement to purchase the Panama Papers from him. See Panama Papers: Germany ‘Pays Millions’ for Leaked Data, BBC News (July 5, 2017) …. He requests pseudonymity because he claims that he faces a “real and imminent” threat to his safety from global actors committed to identifying and harming him in retribution for his production of the Panama Papers. As part of his request, Plaintiff also asks to seal his identity from the Court. But see LCvR 5.1(c)(1) (requiring that parties file “name[s] and full residence address[es]” and pro se parties also file telephone number).

Because Plaintiff has made the detailed showing required to overcome the presumption in favor of public disclosure, the Court will grant his request to proceed under a pseudonym in his public filings. It will, however, deny his unusual request to seal his identity from the Court. The Court uses male pronouns throughout this Opinion for convenience but does not thereby suggest anything about Plaintiff’s sex….

Generally, a complaint must identify the plaintiffs. See Fed. R. Civ. P. 10(a); LCVR 5.1(c)(1) . That requirement reflects the “presumption in favor of disclosure [of litigants’ identities], which stems from the ‘general public interest in the openness of governmental processes,’ and, more specifically, from the tradition of open judicial proceedings.” A party moving to proceed pseudonymously thus “bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name.” …

The first factor supports granting the Motion. Plaintiff seeks pseudonymity not “merely to avoid the annoyance and criticism that may attend any litigation,” but … argues that he “is not concerned about [his] reputation or future career prospects so much as [his] safety.” The Court agrees…. Plaintiff’s identity has not been publicly disclosed and is itself sensitive in light of the risks to which its revelation could expose him. See Juliette Garside & Philip Oltermann, Panama Papers Whistleblower Speakers Out: ‘Politicians Must Act — Now’, The Guardian (July 22, 2022) (“The whistleblower said they could not take the risk of revealing their identity because they believed they were a target of the Russian government.”); Chang v. Republic of S. Sudan, 548 F. Supp. 3d 34, 38 (D.D.C. 2021) (recognizing risk of retaliation from foreign government as relevant to [whether a plaintiff may proceed pseudonymously])….

Plaintiff argues that he is at grave risk and points to foreign leaders’ disapproval of coverage concerning the Panama Papers and their ability to target individuals beyond their borders. He specifically identifies two journalists who were murdered for their investigative reporting, which included reporting on the Panama Papers. See Kelly K. Cho, Assassin Brothers Jailed 40 Years for Car-Bomb Killing of Malta Journalist, Wash. Post (Oct. 15, 2022) (describing murder of journalist whose reporting included linking Maltese political figures with “suspicious financial transactions described in the Panama Papers”); Bill Chappell, Man

Admits to Murdering Investigative Journalist, a Crime that Rocked Slovakia, NPR (Jan. 13, 2020) (“The slain journalist had worked on projects related to cases of broad corruption, drawing on sources such as the Panama Papers ….”).

Although Plaintiff does not describe having received a direct threat, his Complaint alleges that Russian state-sponsored television issued an indirect threat to his life when it released a “docudrama” that “featured gratuitous violence directed at the John Doe behind the [Panama Papers] leak.” Furthermore, in a Declaration signed only under his pseudonym, Plaintiff adds that he faces “similar threats from the governments of China and Saudi Arabia,” from “international drug trafficking organizations,” and “ultra-high net worth individuals whose companies were exposed in the Panama Papers.” He argues that this risk extends to his family and other individuals who “could potentially be used as leverage to force Plaintiff to divulge information.”

The Court recognizes that at this early stage, Plaintiff’s concerns are supported only by the allegations in his Complaint and his unsigned, pseudonymous Declaration. Discovery may well render his concerns unsupported and unwarranted. The Court finds, however, that he has made a sufficiently specific showing with respect to the second factor to support granting his Motion, particularly in light of publicly documented acts of retaliation against individuals involved in reporting on the Panama Papers….

Defendants would suffer no risk of unfairness if the Motion were granted, given Plaintiff’s claim that they already “know[] Plaintiff’s true identity.” Upon the filing of the pseudonymous Complaint, Defendants will remain free to refute that claim or request any further information they deem necessary to the full and fair defense of the case, and Plaintiff will remain free to object….

The Court turns next to Plaintiff’s unusual request that he be exempted from the Local Rules’ requirements that all plaintiffs file with the court a full name and residential address, and that pro se plaintiffs also file a telephone number at which they may be contacted in lieu of counsel….

Permitting a pseudonymous filer to conceal his identifying information from the court would place the Local Rule in direct conflict with Federal Rule 10(a)’s requirement that “[t]he title of the complaint must name all the parties,” and with Rule 11(a)’s requirement that “[e]very pleading, written motion, and other paper must be signed by at least one attorney … or by a party personally if the party is unrepresented.” While courts in this district have interpreted motions to file a pseudonymous complaint as requests for an exemption from those requirements, that exemption has historically been limited to ensure that parties identify themselves for the court and for the record.

Plaintiff also argues that he should be granted a more sweeping exemption here because the court’s systems are vulnerable to attack, such that even a sealed electronic filing could compromise his identity and contact information. Plaintiff expresses a heightened concern with the telephone- number rule, arguing that he “could be immediately tracked down in a matter of minutes were that information to fall into the wrong hands.” He is willing to share only his email address and “a secret passphrase” to be “stored securely and not electronically,” which he proposes as sufficient to enable the Court to distinguish his communications and filings.

Although the Court is sensitive to Plaintiff’s concerns, it is not aware of any court in this district granting such sweeping exemptions to these identification requirements, and Plaintiff does not identify one. The Court routinely requires that even pseudonymous filers facing grave and specific threats to their safety file their identifying information under seal….

As to Plaintiff’s additional concerns with sharing his telephone number, he has not developed any argument that providing such number to the court would pose a privacy risk beyond that already posed by the requirement that he provide his residential address; nor has he identified a court that has granted such an exception. The Court recognizes that Plaintiff’s efforts to obtain counsel may, if successful, render the requirement that he provide his own telephone number inapplicable. Until that occurs, Plaintiff must still identify himself to the court by his telephone number. He must thus file his true name, residential address, and telephone number under seal….

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