Escolar Documentos
Profissional Documentos
Cultura Documentos
John Doe 1 and John Doe 2 filed this action on June 24, 2019, alleging that the
City of Cincinnati violated their civil rights by, essentially, complying with a state court
order and the Ohio Public Records Act. The plaintiffs also seek injunctive relief against
the City of Cincinnati, Binary Intelligence, and Brian Shrive. Brian Shrive and the City of
Cincinnati move this honorable Court to compel the plaintiffs to reveal their identities as
On April 9, 2018, Brian Shrive filed a lawsuit against the City of Cincinnati and
Councilmembers Sittenfeld, Seelbach, Landsman, Young, and Dennard, alleging that the
councilmembers violated the Open Meetings Act. (Complaint, ¶17; State ex rel. Miller v.
Sittenfeld, Ham Cty. Com. Pl. No. A1801934, “Complaint for Injunctive Relief Pursuant to
R.C. 121.22,” attached as exhibit A). In October and November of 2018, Councilmembers
Sittenfeld, Seelbach, Landsman, Young, and Dennard used the services of Binary
Intelligence to collect and process text messages for the period from January 1 to October
23, 2018. (Complaint, ¶20; see also State ex rel. Miller v. Sittenfeld, Ham. Cty. Com. Pl.
No. A1801934, “Agreed Judgment Entry Final Entry,” attached as exhibit A to Plaintiffs’
Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 2 of 6 PAGEID #: 42
Motion for Temporary Restraining Order Against Defendants City of Cincinnati and Brian
On October 23, 2018, the state court trial judge denied a protective order filed by
the defendants and ordered them to “turn over all the text messages and emails that fall
between” January 1, 2018 and October 23, 2018. (See State ex rel. Miller v. Sittenfeld,
Ham. Cty. Com. Pl. No. A1801934, “Entry Overruling Defendants’ Motion for Protective
Order,” attached as exhibit B). The City provided all texts and emails between the
councilmembers from January 1, 2018 to October 23, 2018 to Brian Shrive, attorney for
Shortly after the resolution of that case, additional public records requests were
made by Brian Shrive (on behalf of a clinet) and members of the media regarding a variety
of topics, including messages related to funding for the Center for Closing the Healthcare
Gap, as well as messages related to Harry Black and Mayor John Cranley, among other
topics. (Complaint, ¶24). The plaintiffs in this case allege that the new, expanded request
by Mr. Shrive included communication from “a whole host of private individuals to and
with the council members and was not limited to communication about City business.”
(Id.)
The plaintiffs allege that they communicate with members of Cincinnati City
Council on matters of political and social concern. (Complaint, ¶6-7). The plaintiffs do not
-2-
Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 3 of 6 PAGEID #: 43
Rule 10(a) of the Federal Rules of Civil Procedure requires the complaint to name
all parties. FRCP 10(a). Here, the plaintiffs have not moved for leave to proceed
anonymously, nor have they identified any exceptional circumstances to deviate from the
rule set forth by Rule 10(a). Generally, judicial proceedings are open to the public. Craig
v. Harney, 331 U.S. 368, 374 (1947)(“What transpires in the courtroom is public
property.”) Leave to proceed anonymously is within the discretion of the court. Doe v.
Porter, 370 F.3d 558, 560 (6th Cir. 2004). However, the general presumption of
transparent judicial proceedings places a “heavy burden” on the plaintiff who wishes to
proceed anonymously. Doe v. Warren County, S.D. Ohio No. 1:12-cv-789, 2013 U.S. Dist.
LEXIS 25243 at *6; see also Doe v. Washington Post, D.D.C. No. 19-477, 2019 U.S. Dist.
LEXIS 94422 at *10 (“The plaintiff has failed to meet the “heavy burden” of establishing
that his privacy interests outweigh the public’s interest in knowing his identity.”) To satisfy
this heavy burden, the plaintiff must show “the need for anonymity substantially outweighs
the presumption that parties’ identities are public information and the risk of unfairness to
the opposing parties.” Doe v. Warren County, 2013 U.S. Dist. LEXIS 25243 at *5
(emphasis added).
In making this determination, courts may consider: (1) whether the plaintiffs
seeking anonymity are suing to challenge governmental activity; (2) whether prosecution
of the suit will compel the plaintiffs to disclose information of the utmost intimacy; (3)
whether the litigation compels plaintiffs to disclose an intention to violate the law and risk
prosecution; (4) whether the plaintiffs are children; and (5) whether the defendants are
-3-
Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 4 of 6 PAGEID #: 44
being forced to proceed with insufficient information to present their arguments against
the plaintiff’s case. Doe v. Warren County, 2013 U.S. Dist. LEXIS 25243 at *6.
Here, the plaintiffs are suing to challenge, in part, government activity (but also
seeking relief against non-governmental actors). As to the other factors, the fact that the
well as personal and “friendly” matters, does not indicate that information of the utmost
intimacy will be disclosed by this litigation. There are no allegations pointing to a concern
that disclosure will cause them to risk prosecution. In fact, exactly the opposite has been
alleged. (Complaint, ¶41). The plaintiffs are not alleged to be children, and the allegations
that some members of a class may be children are too speculative to outweigh the public’s
As to the final factor, allowing the plaintiffs to proceed anonymously puts the
defendants at a disadvantage. For example, the plaintiffs filed a motion for a temporary
restraining order and supplied a declaration signed by “John Doe.” The declaration, such
as it was, was not even dated, and there is no way for the defendants to test the credibility
of such a declaration, or such a witness. More significantly, the plaintiffs wish to proceed
as representatives of a class, but the defendants have no way to determine whether these
plaintiffs are in fact adequate representatives of the class, or that there are questions of
law and fact common between them and other potential plaintiffs. How can the defendants
determine whether John Doe 1 or John Doe 2 are in fact private citizens, and not public
figures? The defendants will need to test standing, conduct discovery, and cross-examine
the plaintiffs. Without real identities of John Doe 1 and John Doe 2, the defendants will
be prejudiced.
-4-
Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 5 of 6 PAGEID #: 45
The public interest in this case will be high. The state court litigation was heavily
reported, as noted in plaintiffs’ motion for a temporary restraining order. The public has
been and will be interested in knowing the parties involved in this lawsuit and following
the legal issues involved. It is the public that has an interest in knowing the identities of
the parties. See Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011)(acknowledging “the
thumb on the scale that is the universal interest in favor of open judicial proceedings”).
Conclusion
Based on the foregoing, the defendants respectfully move this court to compel the
plaintiffs to identify themselves under FRCP 10(a), or, if they refuse, to dismiss the
complaint.
Respectfully submitted,
-5-
Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 6 of 6 PAGEID #: 46
CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing was filed electronically.
Notice of this filing will be sent to all parties by operation of the Court’s electronic filing
system and copies will be e-mail to counsel who are not served via the Court’s electronic
filing system (Adam Webber, awebber@elliottfaulknerlaw.com, Counsel for Binary
Intelligence). Parties may access this filing through the Court’s system.
-6-