Prepare for a Challenge…

A recent decision by Ohio’s Second District Court of Appeals addresses a couple of topics that have been recurring features on this blog: final appealable orders and secrecy in litigation. As to the former, we have previously discussed the complexity of characterizing orders that either grant or deny preliminary injunctive relief as either final, appealable orders (or not), in our recent blog posts found here and here. As to the latter, in early 2022, we discussed an Ohio Supreme Court decision called State ex rel. Cincinnati Enquirer v. Shanahan, regarding whether a police officer could proceed under a pseudonym in his defamation case – and the Court in that case said no.

Jane Doe v. Cedarville University case overview

A Jan. 12, 2024 decision by the Montgomery County Court of Appeals in Jane Doe v. Cedarville University addresses both an interlocutory appeal and the concept of proceeding under a pseudonym. As described below, although the Second District in Cedarville acknowledged its power to hear the interlocutory appeal, thanks to the appellant’s quick work perfecting the appeal before it became moot, the Court nevertheless denied her request for secrecy on the merits.

Swift action in pseudonym appeals

In Cedarville, a wellness check was performed on a female nursing student by campus security, who contacted the local police department. After being questioned about her wellbeing and mental-health status, the student was eventually admitted to Miami Valley Hospital in Dayton, where she was detained for more than three days.

She later sued the University and other defendants, but omitted her own name from her original and amended complaints. Defendants filed a motion to dismiss the amended complaint due to her failure to seek leave of court to proceed under a pseudonym.

The plaintiff filed a motion seeking such leave, but the trial court denied her request to proceed anonymously, and ordered her to file a second amendment complaint using her legal name within 10 days, or the court would dismiss her claims. Nine days later – just before the trial court’s deadline – she perfected an appeal to the Second District.

The court of appeals acknowledged that even though the trial court’s denial of the plaintiff’s motion to proceed under a pseudonym denied a provisional remedy, the denial met Ohio’s definition of a final, appealable order set forth in R.C. 2505.02(B)(4).

Importance of timely action in interlocutory appeals

The court of appeals noted that the plaintiff had perfected her appeal before the expiration of the trial court’s ten-day deadline for her to reveal her name in a second amended complaint, and that “[i]f we were not able to immediately review the trial court’s decision *** the order would be effectively unreviewable after final judgment because any relief granted at that time would have already been rendered moot when Doe was forced to reveal her name to prevent dismissal of her action.”

This aspect of the court of appeals’ decision is a helpful reminder that sometimes, when seeking to appeal from an interlocutory decision, quick action is needed to perfect the appeal before it becomes moot. The student’s counsel in Cedarville acted with the requisite haste to ensure that her appeal could be heard on the merits.

Balancing privacy interests vs. presumption of openness

For the plaintiff in Cedarville, though, getting past the front door of the court of appeals by establishing the “final” nature of the trial court’s decision did not also mean victory on the merits or vindication of her asserted interests in maintaining the privacy of her involuntary commitment to Miami Valley Hospital while proceeding with her lawsuit.

The court of appeals noted that it is a “rare exception” for a litigant to be permitted to proceed under a pseudonym, and courts only grant such permission if the plaintiff’s privacy interests “substantially outweigh” the presumption of openness that attaches to judicial proceedings.

The bottom line is that, at least in Ohio’s Second District, a plaintiff’s desire to proceed anonymously to avoid disclosing an involuntary civil commitment does not meet the factor of Ohio’s multifactor test that considers whether such disclosure would reveal information “of the utmost intimacy.”

Court’s analysis on “utmost intimacy”

Although the court of appeals acknowledged case law for the proposition that disclosure of an individual’s transgender identity can carry enough of a social stigma to overcome the presumption of openness, other cases have concluded that disclosure of psychiatric issues or “other sensitive medical information” does not. As the court of appeals went on to explain:

As the trial court correctly noted, the cases in which Ohio and federal courts have found this factor weighed in favor of proceeding anonymously often involved situations where the plaintiff was likely to be subject to danger or retribution if her name was revealed or situations where the plaintiff had been a victim of sexual abuse. While Doe could suffer some stigma through the revelation that she was involuntarily committed for over three days, we cannot conclude that the trial court abused its discretion by finding that this detail of Doe’s private life was insufficient to rise to the level of a matter of “utmost intimacy.”

The court of appeals noted, further, that a protective order in the litigation could shield specific mental-health information from disclosure.

Notable aspects of the Second District’s decision

The authors of this blog noted a couple of interesting aspects of the Second District’s decision. For one, although the Court noted prior case law recognizing transgender identity as a matter of “utmost intimacy,” and other case law declining to recognize personal mental health information as such, absent from the Court’s decision in Cedarville is much, if any, discussion as to why that distinction in precedent exists as a practical matter. In other words, if transgender identity is a judicially recognized issue of “utmost intimacy,” why is that not the case for involuntary civil commitment?

Tension between case law and Rules of Superintendence

Moreover, absent from the Second District’s decision is any mention (much less discussion) of the Rules of Superintendence for the Courts of Ohio. This is perhaps not surprising, since those Rules were not specifically implicated by the Cedarville plaintiff’s request to proceed under a pseudonym, which presents an issue under Civil Rule 10.

Those Rules of Superintendence, however, in Sup. R. 44, expressly exclude from the definition of “case document” any “Health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents.”

Because of that exclusion from the definition of “case document,” such information is also not included in the Rules of Superintendence’s definition of “court records” that are presumed open to public access under Sup. R. 45.

Navigating openness in litigation

As such, there appears to be at least some tension between the case law and the Rules of Superintendence when it comes to whether some presumption of openness should (or should not) attach to a litigant’s mental-health information.