From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:

In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….

The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.

Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….

[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—while in several respects falling well short of being fabricated or fraudulent data—might possibly justify limiting the full, dispositive First Amendment protection for scientific opinion urged by Elsevier. However, the Court need not (and will not) reach a definitive conclusion on the scope of the Article's "scientific opinion" protection because, as discussed below, GPS has not shown evidence of actual malice sufficient to support its defamation claim, which independently resolves GPS's defamation claim in Elsevier's favor….

There's a lot more, which you can read here; and there's something at the end about public access to court records:

As explained by the Court at the hearing on these motions and in its earlier order on the Parties' various motions to seal, the Parties have excessively filed memoranda, documents, and other exhibits under seal in violation of the strict legal principles applicable to publicly filed motions, in particular dispositive motions at summary judgment (including, incredibly, press releases and other obviously public documents).

Under the governing First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties' summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the original filed sealed exhibit on the schedule described below. The Court will allow the Parties a short period of time to file very limited and narrowly tailored requests to maintain the sealing or partial sealing of specific filings and exhibits, other than the Parties' memoranda of law and any exhibit specifically cited in this order….

The Parties are directed to refile—on or before October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties' Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties' Motions for Summary Judgment must be similarly refiled and linked on or before 14 days from the date of this Order, unless otherwise ordered by the Court. The Parties may file under seal very limited and narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order ….

The post No Liability for Scientific Publisher (Elsevier) in Defamation Lawsuit by Air Purifier Company appeared first on Reason Magazine.

From L.R. v. Bd. of Ed. of Jennings School Dist., decided Wednesday by Judge Joshua Divine (E.D. Mo.):

L.R. and her mother, R.S., alleged that after an incident involving L.R.'s father at end-of-school pickup, employees of Jennings School District placed L.R. in an out-of-school virtual learning program that was inferior to regular schooling. According to their complaint, the district employees did not provide L.R. with an explanation of how her conduct justified the suspension, a timeline or consistent standards for returning to in-person classes, or an opportunity to be heard or appeal. Those shortcomings, they argued, violated L.R.'s rights to constitutional and statutory due process as well as a free public education.

Since then, the parties have reached a settlement…. As to the settlement, the Court intends to approve it provided that the plaintiffs file an amended complaint that discloses R.S.'s identity.

[R.S.] argues that disclosing her identity "will effectively disclose L.R.'s identity" too. True, the Federal Rules of Civil Procedure presumptively require anonymizing minors by their initials, but there is no similar requirement for parents. Compare Fed. R. Civ. P. 5.2(a)(3) (stating that filings must replace "the name of an individual known to be a minor" with "the minor's initials"), with id. 10(a) ("The title of the complaint must name all the parties."). Instead, Rule 10 creates a "strong presumption against allowing parties to use a pseudonym." A party may overcome that presumption "only in those limited circumstances where [the] need for anonymity outweighs countervailing interests in full disclosure."

This case is not one of them. R.S. and L.R. do not share a last name, and R.S. has not established that third parties necessarily will infer L.R.'s identity from her mother's.

Even if third parties would discern L.R.'s identity, the fact that she was suspended from in-person classes after a vaguely described "incident" involving her father is not particularly sensitive…. [O]ne factor to consider [in pseudonymity cases is] whether identifying a party "threaten[s] to reveal information of a sensitive and highly personal nature" …. "[S]ome cases allow parents who are suing on behalf of their minor children to proceed pseudonymously, at least when the case involves highly personal information about the children" …. This case does not involve, for example, sexual assault or coercion of a minor to use drugs.

If anything, there are weighty interests in full disclosure because knowing the identities of the people involved in this case could help third parties assess the reasonableness or unreasonableness of a school policy that has become a topic of public debate across the nation. The school district in this case has been featured in national media on the topic of discipline at issue. See, e.g., Carly Graf, The newest form of school discipline: Kicking kids out of class and into virtual learning, Washington State Standard (Aug. 7, 2023) (explaining how "[s]chool districts across the country, including in Missouri, have begun punishing students by forcing them into online classes"); id. (quoting the "superintendent of Jennings School District in Missouri"). R.S.'s own complaint invokes the surrounding policy debate about virtual learning, including what critics say is a negative effect on students of certain races. Therefore, the Court will deny her motion for leave to proceed anonymously.

The settlement, by the way, was that "[a]lthough the defendants are not required to admit liability, they must remove any mention of the suspension from L.R.'s records, promote her to 8th grade, pay her $40,000 dollars plus $20,000 to her attorneys, and make available a policy that "clearly enshrines due process protections for all students prior to any transfer to virtual learning."

The post Children May Proceed Pseudonymously; May Their Parents? appeared first on Reason Magazine.

From today's decision by Judge Richard Mark Gergel (D.S.C.) in Bingham v. Wilson:

Plaintiffs filed this lawsuit on behalf of several South Carolina physicians seeking injunctive and declaratory relief against South Carolina's Abortion Ban….  [Plaintiffs] seek an order: "(1) requiring all counsel and witnesses to refer to Dr. Doe using her pseudonym at trial; (2) closing the courtroom to the public and members of the press during Dr. Doe's testimony; and (3) permitting limited redactions to the trial transcript to conceal any educational or professional information that could indirectly identify Dr. Doe." Defendants have not filed any memoranda opposing the instant Motion….

The court refused to close the trial during Dr. Doe's testimony:

The Supreme Court has noted that "[t]he Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open[,] … [and] historically both civil and criminal trials have been presumptively open." … "For many centuries, both civil and criminal trials have traditionally been open to the public" ….

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Applying these principles, the Supreme Court held that the right to a public trial may give way to a complete closure of the courtroom if: (1) the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) reasonable alternatives to closing the proceeding are considered by the trial court, and (4) findings adequate to support the closure are made by the trial court…. When a party seeks only a partial closure of the courtroom, such as "where an exclusion is temporally limited to a portion of the hearing," a "less demanding" test applies, which permits a court to order closure if the moving party establishes "a substantial  reason"  rather  than  an  "overriding  interest"  justifying  closure….

[T]he Court will not close the Courtroom proceedings during Dr. Doe's testimony. Here there are not sufficient circumstances to warrant closing the courtroom given the public's right to access and interest in the proceedings, especially given the nature of this case. As discussed above, civil trials are presumptively open and are a hallmark of our democratic forum of government as open trials "embod[y] a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." …

The Court takes Dr. Doe's concerns about her safety very seriously. But the Court finds that the public's right of access to access is high in this case given its subject matter. As such, the record before the Court does not warrant closing the proceedings to the public when alternative measures can ensure her safety. The Court therefore will not close the Courtroom during Dr. Doe's testimony….

But it allowed her to proceed as Dr. Doe at trial:

[A]bortion is a divisive issue and there is a long "national history of harassment and violence towards abortion care providers." Women's Health Ctr. of W. Virginia v. Sheth (S.D. W. Va. 2023) (granting an abortion provider's motion to proceed pseudonymously because "retaliation is a genuine concern" for abortion providers and there is a serious risk of "harassment, threats, or other retaliatory action taken by those that disagree with access to abortion care"); see Roe v. Aware Woman Ctr. for Choice, Inc. (11th Cir. 2001) (holding that plaintiffs in abortion cases may be allowed to proceed anonymously and collecting cases). Moreover, the Court finds Dr. Doe's expressed concern of retaliation against herself compelling because she has been the target of threatening mail and doxing by anti-abortion activists…. [This] risk of physical … harm to plaintiff … weighs in favor of allowing her to proceed anonymously….

[Plaintiff's claim is also made stronger] given her previously stated desire to protect her children from harassment and retaliation by remaining anonymous.

The [claim being against the government] weighs in Plaintiff's favor because "[a]ctions against the government do no harm to its reputation, whereas suits filed against private parties may damage their good names and result in economic harm." … [And] the threat of prejudice to Defendants to be minimal since Dr. Doe has proceeded anonymously up to this point and because there is no risk of jury confusion since this is a bench trial. See James v. Jacobson (4th Cir. 1993) (recognizing the "concern that the jury's very knowledge that pseudonyms were being used" could "tend to validate" the plaintiff's claims); Doe v. Ayers (9th Cir. 2015) (noting "risk that the … use of pseudonyms might prejudice the jury" in the anonymous party's favor). Based on the circumstances of this case, the Court finds that Dr. Doe's stated interests in protecting herself against retaliation and harassment can be balanced with the public's interest in the openness of judicial proceedings by allowing Dr. Doe to proceed under a pseudonym at trial.

And the court also concluded that it "will partially redact the portions of the transcript that could indirectly identify Dr. Doe":

Additionally, the Court finds that redaction of selected portions of the trial transcript is an appropriate alternative to sealing the transcript in its entirety. This decision strikes an appropriate balance between the public's right of access to judicial records and proceedings and Dr. Doe's interest in her safety. This is especially true because the public's right to access Dr. Doe's education and professional information is limited, especially given the Court's decision to allow her to proceed anonymously due to her safety concerns. Furthermore, the public will retain access to trial records except for Dr. Doe's identity and the related information that could identify her. The Court also believes that this is a reasonable alternative to closing proceedings and no greater than necessary. Thus, the Court finds that the same safety measures as closing the Courtroom can be achieved with reasonable alternative measure of allowing Dr. Doe to proceed anonymously and redacting the portions of transcript….

As such, it is ORDERED that Counsel and witnesses will refer to Dr. Doe using her pseudonym at trial and that the trial transcript will be partially redacted to conceal any educational or professional information that could indirectly identify Dr. Doe. However, the Court will not close the Courtroom during Dr. Doe's testimony….

This leaves open the possibility that a spectator who knows what Dr. Doe looks like will see her in court and publicly identify her—nothing in the order forbids that—or that identifying information that is orally presented at trial will be publicized by a spectator even if it's redacted from the trial transcript. But presumably the judge concluded that this risk is relatively modest, and is justified by the need to preserve public access to the trial.

The post No Closed Courtroom When Plaintiff Dr. Jane Doe Testifies in S.C. Abortion Ban Challenge appeared first on Reason Magazine.

From Doe v. Sacred Heart Univ., Inc., decided last week by Bridgeport (Conn.) Superior Court Judge Robert Golger:

The plaintiff, Jane Doe, instituted the present action seeking a Bill of Discovery from defendant Sacred Heart University (Sacred Heart), The national Chapter of Phi Sigma Sigma Fraternity, Inc., and The IOTA NU Chapter of the Phi Sigma Sigma Fraternity. The plaintiff's complaint alleges that in the Fall of 2025 she was involved in an incident with an underclassman during pledge week in which she was video recorded encouraging a Phi Sigma Sigma Fraternity pledge to drink alcohol (the hazing incident). The incident is detailed at paragraphs 11-15 of her complaint. The video was subsequently circulated around campus.

The plaintiff alleges that she became the subject of harassment and cyberbullying as a result of the publication of the hazing incident and that the defendants failed to conduct any meaningful investigation into her complaints. The plaintiff also alleges that she became the subject of improper disciplinary hearings and was left with no choice but to withdraw from Sacred Heart. The plaintiff seeks records related to the defendants' investigation into the hazing incident and the retaliation (which consisted of anonymous cyber bullying) which led to her "constructive expulsion" from the school.

The plaintiff further alleges that as a result of this retaliation, she began to suffer from severe anxiety and depression. The plaintiff seeks to proceed with her action for a Bill of Discovery by using a Pseudonym.

The plaintiff's request to proceed using a Pseudonym was initially granted on an ex parte basis. The defendants have objected to the plaintiff's continued use of a Pseudonym. The plaintiff has responded that the continued use of the Pseudonym is necessary. The plaintiff has submitted affidavits in support of her claims detailing the harassment and threats she has received and the effects they have had on her physical and emotional health.

The standard for the granting of Pseudonym status can be found in Practice Book § 11–20A(h)(1) which provides in pertinent part: "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties."

"The principle of openness of judicial proceedings includes the question of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used." For this reason, our Supreme Court has stated that "[t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest."

"The presumption of openness of court proceedings … is a fundamental principle of our judicial system." This policy of openness is not to be abridged lightly.

"The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." "A [party's] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." "The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity…. There must be a strong social interest in concealing the identity of the [party]….["]

The court has reviewed the affidavits submitted by the plaintiff associated with her treatment and is aware of the scope of her alleged harm and fears. However, what the court must determine here is the appropriateness of shielding the identity of someone who has victimized another. A review of the relevant caselaw concerning applications for the use of Pseudonym status does not reveal any cases where an initial wrongdoer was allowed to proceed with a Pseudonym because of alleged harm incurred in retaliation for their wrongdoing.

The court has determined that after balancing the interests of the parties in this matter, the plaintiff's personal privacy interests do not outweigh the public's interest in the continued openness of these judicial proceedings. The defendants' objection to the continued use of a Pseudonym is therefore sustained.

James M. Sconzo and Marc G. Bernatchez (Carlton Fields, P.C.) represent the University.

The post No Pseudonymity for Apparent Hazer Suing University for Supposedly Improper Actions Against Her appeared first on Reason Magazine.