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National Crime Victim Law Institute

Plaintiff B v. Francis, — F.3d —, No. 10-10664, 2011 WL 294272 (11th Cir. Feb. 1, 2011).

February 22, 2011

Four victim-plaintiffs sued Joseph Francis and companies owned or controlled by him for damages arising from defendants’ depiction of the plaintiffs, while minors, in sexually explicit situations in the “Girls Gone Wild” films.  Plaintiffs filed a motion to appear anonymously at trial.  Intervenor-Appellee Florida Freedom Newspapers argued in favor of denying the motion and defendants joined the intervenor’s arguments.  The district court denied the motion to proceed anonymously, finding that the presumption of openness outweighed plaintiffs’ desire to proceed anonymously because plaintiffs did not show that they would be forced to disclose information of the “utmost intimacy” and because the court was not convinced of the harm that would befall the plaintiffs if their identities were known.  On appeal, the court found the lower court’s decision to be an abuse of discretion.   Although the court recognized that there is a presumption of openness, it explained that this rule is not absolute; a party may proceed anonymously if there is a substantial privacy right at issue, and such a right is at issue if the party would be required to disclose information of the “utmost intimacy.”  The court also described that a court may consider other factors, such as the minor status of the requestors, or harm to the plaintiffs by proceeding in their own names.  The court then found that the district court failed to take into account the degree of intimacy the plaintiffs’ testimony would reach, the actual allegations made by the plaintiffs in terms of the coerced nature of their conduct, and failed to adequately consider the plaintiffs’ extensive evidence about the scope of harm they faced if they were forced to reveal their identities.  Included in these harms, the court emphasized the trauma to victims of having their names on searchable online databases where anyone entering their names would find information about their appearance in these videos.  Thus, as to two of the plaintiffs who flashed their breasts in defendants’ films, the court remanded their motion to remain anonymous for the district court’s reconsideration of whether this behavior was of the “utmost intimacy,” in light of the fact that they were minors at the time of the filming and that the images of them were marketed as sexual in nature.  As to the remaining plaintiffs, who were engaged in more intense sexual activity and who made allegations as to coercion by defendants, the court remanded to the district court to enter an order granting their motion to remain anonymous. 

NCVLI participated in this case as amicus curiae.  For more information, please contact us.