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137 T C. No.

UNITED STATES«TAX COURT

WHI£TLEBLOWER 14106-10W, Petition r v.

COMMISE IONER OF INTERNAL REVENUE, Respondent

Docket No. 14106-10W.

Filed December 8, 2011.

a fo Emer senior execütive

iled d claiÈfor a

whistleblowe: award under sec . . 7623 (b) , I . R . C. , alleging

that X had u:2derpaid ïts taxes . R inÜesÙigated P' s claim

but, did not open an administrative or judicial proceeding

against X and did not collect any additional tax from X on

thei basis of P s information. R denied P's claim on the

basis that an award determination could not be made under

sec. 7623(b), I.R.C.

P's ide2tity thus far has been kept confidential.

Asserting that disclosing P's identity in this judicial

proceeding would result in retaliation and professional

ostracism, P filed a motion for a protective order,

requestîng t 2at the record be sealed or alternatively

that P be grinted anonymity. .

While P's motion for a protect.ive oËder wa

pending, R f Lled a motion for summary judgment. P

opposes R' s notion on the grounds that it is premature

because P s notion for a protectivegorder is pending

and discovery has not commenced.

$$VED OEC - 8 201

Held: Summary judgment may properly be rendered even

though a.motion for a protective order is pending and

discovery has not commenced. Held, further, because P

failed to meet the thre¼hold requirements for a

whistleblower award, R' s motion for summary judgment will be

granted. Held, further] because the potential harm from

disclosing P's identity§as a confidential informant

outweighs the public interest in knowing P' s identity in

this case decided on summary judgment, P' s request for

anonymity will be grantèd. Held, further, the parties will

be ordered to redact from the record both P's and X's names

and any identifying information about P and X. Held,

further, because. granting P's request for ánonymity and

redacting identifying i formation adequately protect P's legitimate privacy interests as a confidential informant,

P's request to seal the record will be denied.

,' for petitioner.

David A

Ingold an

Rutl Mary Spadaro,

042for

respondent

OPINION

TI RNTON, Judge:

This

s an action pursuant to section

7623 (b) (4) to review respondent' s denial of pétitibber' s älaim

for a whistleblower award.

his matter is*befo e the Court. on

respondent's motion for summ ry judgment and petitioner's motion

to seal the rècord and proceed anonymouslý.

1The name of petitioner

counsel has been omitted in

furtherance of protecting pet itionef's identity.

2Unless otherwise noted,4 all section referenceä are to the

Internal. Reve ue Code, as amÊnded, and all Rule references are to

the Tax Court Rules of Practice and Procedure .

- 3 Background

Petitioner' s. Whistleblower Claim

On March. 3, 2008, petitioner-submitted. to the Internal: -

Revenue'Service Whistleblower Office (Whistleblower Office) «Form

211, Application for'Award for' Original Information:

This

submission indice ted that 'while employed as a senior executive in

a particular company (X) , petitioner had become aware of a tax

code violation that resulted in X' s underpaying its Fe^deral

income tax by 'a substintial; amount. ' By letter dated Mar'ch 11', 2008,. -resporident a~cknowledged receipt of pe~titionér' s claim.

After various written communications'between *the parties, by

lett'er to petitibner date-d M'arch 13, '2010) the 'Whistlebl#ower

Office adv©ised that petitioner did not qualify for a¯n award

because the subm3 tted information did not identify a Federal tax

issue upon which the Internal- Revenue Service (IRS)~ would take

action ånd therefore did'not lead to the ^detection of> an

underpayment of tax for which' an- award could be made" under

section 7623 (b) .^

Petitioner 'timely' petitioned thi^s Court

pursuant"to sedtnon 7623 (b) (4) .

Petitioner's Mot: on for a' Protedt^ive 'Order

Petitioner ¿tlso filed, along ^with the petitiori, a motion to

seal identity,icaise, and- accóm'panying' dócuttients (som'etimes'-

referred to here:.nafter as petitioner's motion for a protective

order) .

The Court; temporarily sealed the record and, af,ter

receiving respondent 's respo se and petitioner' s supplements to

the motion, held a hearing on petitioner's motion.

At theï

hearing petitioner's counsel clarified that petitioner= sóught. to

have the record sealed or, alternatively, sought-permission to

proceed anonymously .

Petitiðner submitted an af f idavit alleging

the ;basis in support of the motion to seal or proceed

anonymous ly .

According to the affida it,'-while employed at X, petitioner

became aware3 of| the alleged tax underpayment referenced in

petitioner's,application for a whistleblower.award.

Petitioner

submitted the whistleblower claim to the IRS. . Petitioner'is ,

identity as a whistleblower 1as been kept confidential throughout

the administrative proceedings and thus far in this judicial_ :

action.

At some point after filing the whistleblower claim,

petitioner obtained new semplòyment.,in a company other than X. According to the affidavit petitioner fears "economic and

professional ostracism, harm, and job-related harassment if my

identity is revealed because my new employer and other potentiial

employers will not .want to hi e or employ a known tax

whistleblower."

Petitioner a so asserts that -X may suffer

financia:11y if the details ,of petitioner's claim are .made public.

3Withóut objection, petit ioner's affidavit was received into

evidence as petitioner's testimony.

- 5 Respondent's Mot.ton for Summary Judgment

On June 6, 2011, while petitioner's;motionjfor a protective

order was still pending, respondent filed×a.motion for summary

judgment.

On July 6, .2011, petitioner filed an;opposition to the

granting of respöndent' s smot'ion for summary judgment

Neither

party has request.ed a hearing o&respondent s motion fore summary

judgment, and we conclude that none is necessary.

Background:

Discussion

Judicial Review of Tax Whistleblower Claims

Since 1867 t he Secretary has had legal .authority to make

discretionary payments for information .that 'aids in detecting tax

underpayments and fraud.

See History òf the

042

Whistleblower/ Inf ormant Program, ht tþ:>//www . irs . gov/ compliarice/

article/0, , id=18 294, 00 . html .

In 2006 Congress substantially

amended the whist leblówer proIgr'am by enacting sect-ion -7623 (b) .

Under this provi ion, "If the Secretafy proceeds *ith any

administrative or judicial action" on the basis of information

provided .by a wh stleblower, then, subject to various conditions,

the whistleblower shall be entïtled to an award o

l 540

. to 30

4The pre-2006 version of the tax whistleblower .law, former

sec. 7623, survives with minor changes às sec. 7623f(a)

percent of -the collected pro$eeds .5

Sec . 7623 (b) ; see also

Cooper v. . Commissioner,

135 T . C. 70,

(2010) . _

Before .2006 there was.no express statutory provision for

judicial review of tak whist eblower claims . . See Colman v}

United States, 96eFed. Cl. 633,^,638

(2011). (stating that the pre-

2006 tax whistleblower law "Èannot serve as the substantive law

on which to predicate" jurisdiction of the,Court of; Federal

Claims) .'

7623 (b) (4)

This situation cha ged with the enactment of section

which provides tlfat t he Tax Court shall have

urisdiction with respect , to tany determination

under isebtión, 7623 (b) (1)t,

States,

82 Fed. Cl.

549,

(2) , or (3)..

553 555

(2008)

042regarding.

·an eaward

-See DaCosta v

Uni'ted

(holding that claims

under section 7623 (b) are within the exclusive jurisdiction of

the Tax . Cöurt) .

This Court

as held that pursuant to section

7623 (b) (4) a letter from the Whistleblower Office, denying a claim

on the grounds that no award determination could be mmade under

$To quálify for an award under sec. 7623 (b), the tax,

penalt~ies, interest, additions to tax, and additional amounts in

dispute must exceed $2 millicn., Sec. 7623 (b) (5) (B) .

Additionafly,' if the subject Ê>f the Ñhistleblower claim is an

individual, the subject's gross income must exceed $200,000 for

the year at issue .

Sec .

7623 (b) (5) (A) .

Judicial review of claims arising under the pre-2006 ,

version of sec. 7623 has been confined to contractual claims

brought under 'the Tucker Act,(28 U.S.C. sec.

1491(a) (1)

(2000 &

Supp. 2005), in limited circumstances where the informant and the

IRS had entered into a binding agreement by negotiating and

fixing a specific amount for á whistleblower award. See, e.g.,

Merrick v. United. States, 846 F.2d 725,- 726 (Fed. Cir. 1988);

Colman v. United_States, 96 F d. Cl. 633, 637-638 ,(2011) .

section 7623 (b)

onstitutes andetermïnation conferring

jurisdictioncon

hisnCourt.

II.

Respondent

Motion for Summary Judgment

we may grant

summary s judgment i f there i s eno +genuine i s sue

Cooper v. Commissioner, supra at. 73.

as to any material fact and acdecision may =be rendered as a

matter of . law.

Rule 121 (b) ;- see Sundstrand Corp. v.

Commissioner, 98.,TeC

Cir .

518, 520

(1992)e, affd. 17 F.3d 965

1994) ; Zaent.zrv: Commissioner,. 90 T . C. 753,

754

(7th

(1988) .

The

movi-ng party hears othe burden-of proving -that ithere is no sgenuine

issue of omaterial vfact, and factual inferences wilbbe read in a

manner most favorable ,to sthe ;party opposing summary judgment .

Dahlstrom v. "Com tissi~oner,

85oT:C: 8127; 821

Commi'ssioner, L79 T;.C.434.0;c 344

(1982)r.'

(1985) ; Jacklin v.

When a motion for summary

judgment is made and properly . supported, the adverse party may

not rest upon mere allegations. or denials of the. pleadings but

must set forth -specific ifacts :showing that; there is a genuine

issue for trial.

Rule 121(d) . _ If. the adverse party does not- so

respond, t hen .a decision. may be entered against asuch party.

Id.

Respondent; asserts ethat he is entitled- to summary judgment

because petitioner does not meet theï threshold requirements for

an award under section 7623 (.b) .

Along with his motion foru

summarycjudgment respondent efi^led the affidavit of- Chief Counsel

Attorney sDavid ~A iIngold, declaring, on the; basis .of his review

of respondent' s administrative and. legaluf ileszand xon the' basis

of conversations swith relevant IRS personnel, that the

information petitioner provided resulted in respondent's taking

no administrative or judicial action against X or collecting from

X any amounts of tax, intere

541t,

or penalty.

Petitioner's opposition3does not address the substantive

merits of respondent's motion for summary judgment but suggests

that respondent's motion is premature because petitioner's·motion

for a protective order is stïll pending and because formal"

discovery has not yet commended.

We disagree that respondent's

motion.for siimmary judgment is premature.

Dursuant -to Rule

121(a) a party may move for summary judgment "at any time

commencing 30 days after the pleadings are closed but within such

time as not to delay the trial."

the Court may grant summary

And pursuant to Rule 121(b),

udgment if the pleadings, answers to

interrogatories, depositions, admissions, and other acceptable

materials, together with the affidavits, if any, show that -there

is. no genuine .issue as to any material fact and that a decision

may be rendered as a matter of law.

The pendency of petitioner's

motion for a protective order is immaterial to respondent's

filing or the Court's ruling

pon the motion for summary

judgment.

Contrary to Rule 121(d), petitioner's opposition does not

set forth, by affidavits or otherwise, any specific facts showing

that there is a genuine issue for trial.

Nor, pursuant to Rule

121(e), has,peti ioner otherdise made tany shöwincl t 540liat

tlie facts'

set f orths in ^Mr .

ngold' s af fidavit afe genifinelý. di'sput'ed

Rule il21(e) is" modeled in 'largedpart aft'erj formëf rule 5

of ^the Federal Rules of Civil Procedure (rede¼i§hatled rûle 56 (d)

.nL2009 wit-h nönaubstäntive changes) .

In Kéebléf Co. v

Bakery Prods.,

1989),

856 F.2d 1386 -(Fed".1Cir

rule 56(È), the

characterized;th

pplyin) förine

ourt held thät?the þlaint iff coul'd no

summary judgment by keqüestingtdiácovery.

plaintiff

MuÈray

oûzt

opposition»as sayingi in effect

we have .ncF fact al basis for opposing summãéyijüdgnient; buta if

you staysproceed ngs, vwe mightifind somethin

The court sobserved:

I_d2 at 1389

"If allSone 'had to do to óbtáifi

cjrant of

Rule 56 (f) motio

wère t o¾llege Jossés ion9by mö ant of

inf ormat ion'gnd

othe r evidencie

Rule 121(e) provides

eve r

uninîä

ùdgt

ce t

When Affidayit Are Unava lable

If it appears from

the affidavi.ts of a pai-ty opposing the motion [for

summary ^judgment] thãt such ,party cannot för reasons

stated present by affidavit. facts essential to justify

such party' Lopposition, then3the Court mahdengthe

motion .or may of-der a continuánce to

rmit affidavits

to be obtained or other ste s to be takenaar may'make

sùch.otiher order as is just.

If ît appears from the

÷affidavits f a»party opposing the ,motiondhat such

pårty' s on17 legally available method of contravening

the facts s t forth, in- the supporting affij:lavits ofvthe

moviÛ part

s t-hrough cro©ss -examination bf such

affiants: or the testimony of third partiestfrom whom

affidavìts annot be s cifred, then such a·showing may

beideemed sîfficient to establish that,the facts set

forth in such supporting affidavits are genuinely

disputed.

- 10 decision would hav:e to be delayed while the non-movant goes

fishing in the movant's files."

Id.

For similar reasons,

summary judgment for respondant. is not inappropriate simply

because petitioner has not commenced discovery.

On the substantive meritis of respondent's motion for summary

judgment, Cooper v. Commissioner, 136 T.C. .597 (2011), is

controlling.

In that case, decided after respondent moved for

summary judgment in the case before us, this Court held in

closely analogous circumstances that the Commissioner was

entitleci to summary judgment

section 7623 (b) (1)

As this Court stated, under

"a whistléblower award is . dependent upon both

the initiation of an administirative or judicial action and

collection of tax proceeds.

at 600.

"If the Secretary does

not proceed, there can be no whistleblower award."

Id. at 601.

According to the affidavit filed in support of respondent's

motion for summary judgment,

have not been met.

hese preconditions for an award

Consequently, we shall grant respondent's

motion for summary judgment.

III.

Petitioner's Motion for a Protective Order

Although we have held that respondent is entitled to summary

judgment, we still'need to rule on petitioner's motion for a

protective order, since our ruling will af fect any further

proceedings in this case and will govern future public access to

information in the record.

Pêtitioner's request to seal the

_ 11 -

record orfalterratively lt'o ];>róceed anonymously pÊesents novel

issues of balancing "the public s interests in open court

proceedings againsti pe^tit±íoner's privacy inte

sts-as a

conf ident tal inf ormant .

Openness of Court Proceedings

This countî

has a lòng traditioh of ope

. access to courtdecords .

rials anÈ public

This* tra litiòrr is emi ddàd in the

common law, theOtätutory laid and the U.S. CÂnstitution.

Nixondv. Warner Commcnsï

Inc.', *435 U.S. 589,

5 7

See

(1978);

Washington Legal iound. i. U S. Sentènding Comäri , 89 F.3d 897,

902

(D. C

Cir .

1996) ; *Willie 1\Telson Ñusi

T . C. 914, 9·17 (1985) .*

Comm s ione ,

Open tfials' and' publi

access to court

records prosote Táirness and thé seàrch fòr t

t h, help enlighten

public"opinion, ind désure co'nfidence in the j diciel^ proc ss.

See i Richinond Newspapers , luc . Ý. Virginia

(1980)v;1Gannett Co.

(1979)

Inc. v. D Êasqilal

But'.the fight tö acbess judici

448 U. S . 555,

443 U.

68, 383

reNö ds

has neve

-5 5

beeh

8The Supreme Court has ,held that there is a guaranteed right

of the public under the First Amendment to attend criminal

trials see.Richmond Newspapers, Inc. v. Virginia, 448 U S. 555

(1980) , but has not expressly ruled on whether there is a First

Amendment(right; ofcaccess toscivil proceedings and documents.

The Courts of Appeals that have addressed the issue agree that

there is such a constitutional,right

See, e.g., Lugosch

Pyramld Co. of Onondaga, 435 F.3d 110, 124-127 (2d Cir. 2006);

Rushford v. New -Ybrker .Magazïne, Inc. , 846 F.t2d 2497 ^253 (4th

Clr . 1988) ; Publibker Indus . , Inc . v. Cohen, 733: F . 2d 1059, 1067 1070 (3d Cir. 1981;) ; In re Contl

Ill Sec. Litig. , 732 F 2d

1302, 1308 (7th Cir. 1984); Brown & Williamson Tobacco Corp.. v.

FTC,

710 F.2d 1163,

1178-1179

(6th Cir. 1983) .

- 12 -

considered absolute.

To the contrary, courts always have

asserted the power to seal t eir records when deemed necessary."

United States v. Mitchell,

5 540l

F.2d 1252·,

1260

(D.C. Cir. 1976)

revd. on other grounds sub n m. Nixon v. Warner Commcns., AInc.,

supra.

Consistent with these pfinciples, section 7,458 provides that

hearings before the Tax Court shall be open to the public.

And

section 7461(a) provides generally that all reports of the Tax

Court and all evidence recei ed by the Tax Court shall be

records open to the inspection of the public.

ublic

But the Tax Court

is authorized to "make any p ovision which is necessary to

prevent the disclosure of tr de secrets or other confidential

information, including a pro ision that any document or

information be placed under s al to be opened only as directed, by

the Court . "

Sec. ,7461(b) (1) .

Under Rule 103(a), upon motion by

a party or any other affected person and for good cause shown,

the Court may make any order which justice requires to protect a

party or other person from arinoyance,. embarrassment, oppression,

or undue burden or expense, including but not limited to ah order

that a trade secret or other information not be disclosed år be

disclosed on1y in a designated way.

Hence, this Court, like

other courts, has broad discretionary authority to control and

seal, if necessary, records and files in its possession.

See

Anonymous v. Comm1ssloner, 127.T.C. 89,. 91 (2006); Willie Nelsðn

- 13 Music9Co. v: Com issioner,1supra at 920.

In additiòn, where

appropriate, thin Court may permit a petitioner to proceed

anonymously.

Anonymous v. Conimissioner, supra at 91.

Section 762

does not expressly address privacy interests of

tax whistleblowe3 s or other affected persons.

When it

promulgated Title XXXIII of its Rules of Practice and Procedure,

relating to tax whistleblower actions, this Court observed that

in appropriate cases it might permit a petitioner to proceed

anonymously and rtight seal the record in that case.

Note to Rule 340

130 T.C.

586.

Explanatory

The Court stated that it

contemplated that

generally applicable statutory provisions Rule 103 and

related caselaw while *they do not require the Court s

records * * * to be sealed or require the Court to permit

all petitioners in those cases to7proceed nonymously,* do

provide authority for the Court to allow a petitioner to

In,2007. the Senate passed a bill with this provisi n that

would have authorised the Tax Court in new sec.

7623 (b) (4) (B) to

seal portions, of the record in tax whistleblower cases:

PUBLICITY OF APPEALS--Notwithstanding sections 7458 and

7461, the Té.x Court may,. in order to preserve the

anonymity, privacy, oriconfidentiálity of any person

under this dubsection,9 provide by rules 'adopted under

section 745T that portions of filings, hesrings,

testimony, evidence,7 and reports in connection with

proceedings'under this»subsection may be closed to the

public or ir spectiori by the±public.

[U.S. Troop

Readiness, Veterans' Health, *and Iran Accbuntability

Act, 2007) K.R. 1591, 110th Cong.,

passed by Senate, Mar. 29, 2007) .

sec. 543 (c)

(as

This proviäionk which ultimat~ely was nöt enacted,. is

substantially id ntical to sec. 6110 (f) (6) . See infra note 11.

proceed anonymously and to seal the 'record when appropriate

in whistleblower actions.

[Id.]

Considering the Les

Petitioner has requeste

Drast ic Option First

in the first instance that we seal

the: record and, alternativel , that we permit petitioner to

proceed anonymously.

Before granting a request to seal the

record, however, it is appro riate to consider the less dfastic

option of permitting the requesting party to proceed

anonymously.1°

Stone v. Univi of Md. Med. Sys. Corp. , 855 F.2d

178, 181 (4th Cir. 1988); see Johnson v. Greater Se. Cmtv. Hosp.

Corp.,

951 F.2d 1268,

1278

(I5.C. Cir.

1991)

(stating that if the

trial court determines that some type of sealing order is

warranted, it should be "no broader than is necessary to protect

those specific interests iderîtified as in need of protectibn") ;

In re N.Y. Times Co.,

585 F. Supp. 2d 83,

(D.D.C. 2008)

(concluding that protecting an informant's identity. did not

require sealing of documents but could be accomplished thrbugh

the redaction of the informarit's name) .

Permitting a litï ant to

1°The Judicial Conferenc of the United States has recently

adopted a national policy that encourages Federal courts tþ seal

042

entire civil case files only when sealing is "required by htatute

or rule or justified by a showing of extraordinary circumstances

and the absence of narrower feasible and effective alternatives

such as sealing discrete docuinents or redacting informatioh, ÷so

that sealing. an entire case f ile is a last resort . " News

Release, Administrative Office of the U.S. Courts, Conference

Approves Standards & Procedurés for Sealing Civil - Cases (Sept .

13, 2011), available. at http://www.uscourts.gov/News/NewsView/1109-13/Conference_Approves_Standards_Procedures_For_Sealingj_Civil_

Cases.aspx.

.. 15 -

proceed anonymot sly, unlike sealing the record, presèrves in

large measure tl e pubiic''s abili y tÊ s$rÈtidize

üdiciai

functioning sihce "Party anonymity does not obstruct th^e public's

view of the issues joined or bh'e court's performance in resolving

them."

Doe v. Stegall>

653

.2d i80,

18s

(Éth Cir.

Petitioner's Request. for Anonymity

1Si81) .'

Ge1eral Colfsidera'tions

"A party may generally proceed anonymously when the trial

court reasonably determines 4that the need for anonymity^ outweighs

the prejudice to the "opþósing party Ånd the gefleraÉ p 570esumption

that the partie

identities ar'e public informahl

v. Commissioner

supra at 94 i

(4 th Cir .

Anonymous

The decision whéÊher Êo allow a

party to prodeed anoùymoùsly rests w

the trial cöurt.

hin the souncÍ dis retion of

Id. ; see James v. Jacobson, 6 F.'3d 233, 2 5408

1993) ; see al so sec .

7461 (b) (1) .

In raret instancès this Court has permitted taxpayers in

deficiency 'cases to proceed anohytàÊusly upon finding "that the

need for anonymit 570

outweighed prejudi e to thei op osing barty and

the genéï-al presumption that th

informatìon."

parties

identitie

are public

See Anonymous v. Commissióner, supra at 94;

Under Rule 227, promulgated pursuant to sec. 6110 (f) (3)

petitioners 'and intervenór may also proceed anonymopsly, if

appropriate, in disclosure actions in the Tax Court. See, e.g

Anonymous~v." Òommi.ssioner, 1$4 T.C. 13 (2010)

The. records in

disclosure action are^genefally sealed pursuant to Rule 228,

promulgated pursu nt to sec . 6110 (f) (6) .

-·

Anonymous v. Commissioner, T.C. Memo. 2010-87.

.In these ¼

deficiency cases the taxpaye s demonstrated risks of severe

physical harm if their identities were revealed.

No court has

previously .considered the ci cumstances under which tax

whistleblower suits under se tion 7623 (b) may be prosecuted

anonymously.

Consequently,

e shall consider in some detèil the

various factors that courts have applied in determining whether

litigation should proceed anónymously or pseudonymously..

Seven Courts of Appeals have adopted or endorsed multifactor

tests to govern the trial co rt's exercise of discretion i

determining whether litigati n should be permitted to proceed

anonymously or pseudonymousl .

See Lozano v. City . of Hazleton,

620 F.3d 170, 195 (3d Cir. 2 10), vacated and remanded on öther

grounds 563 U. S . _,

Sealed Defendant,

Porter,

131 S .

(2011) ; Sealed Plaintif f v.

537 F.3d 1 5,,190-191

370 F.3d 558,

560

Advanced Textile Corp. ,

. v. Zavaras,

t . 2958

(6t h Cir. 2004); Does I Thru XXIII v.

214 F. 3d 1058,

139 F.3d 798,

(2d Cir. 2008); Doé v.

1068

(9th Cir. . 20009) ; M. M.

803

(10th Cir.. 1998); James v.

Jacobson, supra at 238; Doe v

Frank, 951 F.2d 320, 323

Cir. 1992) ; Doe v. Stegall,

v. Commissioner,

(lilth

upra at 184-186; see also Anonymous

127 T.C. .at 94.12

12Any appeal of this cas would likely lie with the Court of

Appeals for the D.C. Circuit. See sec. 7482 (b) (1) (flush 3

language). That court, like the Supreme Court, has not expressly

addressed the propriety of ps udonymous or anonymous litigãtion,

(continüed2 . . )

- 17 -

Relatively cecently, the ..Conrt of Appeals t for the Secbnd

Circuit canvasse<i the caselaw to compile what that court

described as a, "non-exhaustive" list of 1Ó factòrs that a trial

court should consider in balancing a litigant s intei-est in

anonymity agaiñs

the public interest in disclosure and any

prejudice1to the opposing party:

(1) whether the litigation involves matters that are

"highly sensitive and [of a] personal nature"; (2)

"whethei-.identification poses9acrisk of. retaliatory

physical or mental harm to the . . . party [seeking to

proceed"anonymously] orueveh moie'àritically, tov

innocent non-parties"; (3) whether identification

presents other harms and*the Tlikely:severityxof those

harms, including whether "the injury litigated against

would be incurred as a result of the disclosure of the

plainti f f ' s ident ïty" ; (4) whether the plainti f f . is

particularly vulnerablet tó the possible harms:of

disclosure, particularly in light of his + age; (5)

whether sthe suit is challenging the actions òf the

government or that of private parties; (6) i whether the

defendant is prejudiced bynllowing the plaintiff to

press his c:.aims anonymously, whether the nature of

that prejud: ce (if any) differs at any particular stage

*(:. . continued)

although on öccanlon these courts have permit'ted without

comment,spseudonymous litigation to pröceed. See, e.g., Roe

Wade, 410 U.S 1 3 (1973); Doe v. Sullivan, 938 F.2d 1370* (Il.C.

Cir. 1991); Dóe

Weinberger, 820&.2d 1275 (D.C. Cir. 1987).

ualls v

Rumsfeld,

228 F.R:D.î 8,

(D.D.C. 2005),

writing for the District Court: Judge Lamberth observed tliat

neither the Courttof Appeals for-the*D.C. Circuit nor the U.S.

District ~Courth for :tihe aDistrict of Cölúmbia. had "tackled the

propriety of pseudonymous litigation head on". He indicated that

the District Courtahad developed an "ad-hoc-process", whefeby the

chief judge may .strant lèave tio fille a complaint uñder a pseudonym

if the requestinçf litigant "makes a colorable argument in suppört

of the request" Lnd that this process ser es to "getRthe case

moving quickly, leaving the issue open to full, ádverse

litigation at' adäter date." Id.

of the litigation, and ûhether any pr'ejudice can be

mitigated by.the district court; (7) whether the

plainti f f ' s identi ty has thus f ar been kept

confidential; (8) whethèr the public's interest in the

litigation is furthered by requiring the plaintiff to

disclose his identity; (9) "whether, because of the

purelyslegal nature of tihe issues presented-or

otherwise, there is an stypically weak public interest

in knowing the litigants' identities"; and (10) whether

there are any alternati 570e

mechanisms for protecting the

confidentiality of the plaintiff.

[Sealed Plaintiff v.

Sealed Defendant, supra at 190; internal citations

omitted.P]

As another court has aptly nöted, the multiplicity of factors to

be considered "suggests the breadth of the discretion to l$e

exercised."«

Doe v

Del Rio,

241 F.R.D.

154,

157 n.4

(S.DáN.Y.

2006) .

To a significant degreed these various factors are

intermingled and overlapping

For instance, . the first three

factors listed above address collectively the .single most

An additional factor sömetimes mentioned by courts but not

expressly included in this 10-factor list (although it might be

thought to inhere in some of the listed factors) is .whethe

either the party seeking anonymity or the .opposing party is

motivated by illegitimate mot ives . See, e . g. , Lozano v. Cïty of

Hazleton, 496 F. Supp. 2d 47 ,

513

(M.D. Pa. 2007)

(sugges ing

that plaintiffs' request to proceed anonymously might be

considered to be improperly niotivated if they sought anonymity to

engage in a "shell game" and 1substitute different anonymous

plaintiffs; but also suggesti!ng that seeking to intimidate

plaintiffs in a manner that sould discourage them-from exercising

their rights gwould be an illegitimate motive for opposing

anonymity),. vacated in part ön other grounds 620. F.3d 170 Á(3d

Cir . 2010 ) ,. vacated and remanded 563 U. S .

, 131 S . Ct . 2958

(2011); Doe v. Provident Life & Accident Ins. Co., 176 F.Rj.D.

464, 469

(E.D. Pa. 1997)

(ststing that improper reasons fo

seeking anonymity include gaiining a tactical advantage, imþairing

the opposing. party's ability sto defend itself, .delaying

litigation, and increasing costs to the opposing party) .

- 19 important considèration--"the bases upon which disclosure is

feared ormsóught to.be. avoided, and the. substantiality of these

bases".

Lozano 7

(M.D;-Pa.p2007)

City of Hazleton, 496 F. Supp: 2d 477, 506

(and cases cited thereat), affd.ain part and

vacatediin part onnother grounds 620 F.3d 170

vacated, and remanded: 563. U. S .

(3d Cir. 2010),

131 S . Ct . s2958

(2011)

That

consideration is influencedninsturn, by whether the, party *

seeking protection is particularly vulnerable (factor 4) and

whether the party'es confidentiality chas thusefar beent ihaintained

(factor 7) .

And the-sufficiency ofpthe basis «asserted for

anonymitytalso inplicates societal interests:(factors 8 and 9)

inasmuch as it depends .on .whether there is a "'strong social

interestein concealingethe· identity of the plaintiff0".

Wolfchild,v. JUnited States÷,62 Fed. Cl. .521, 553 -(2004)

Doe vc Rostker,

89 F.R.D.

158,

162

(N.D. Cal.

(quoting

1981)), revd. and

remanded;on other grounds 559 F.3d 1228 (Fed. Cir. 2009).

Considering the multiplicity; and cinterrelatedness - of f actors

to be considered and the breadthiof the trial dourt's discretion

in consideringothem, it is unsurprising that litigants thave been

permittedtto proceed anonymously in a wi'de variety of cases.

9Further illustrating4the interrelatedness olfactors, one

court has öbsèrved thát the consideration of whether the suit is

challenging the 2.ctions ofe±the government or private individuals

(factor 5 listed above) addresses primarily the potential

prejudice and unfairness to private individuals in being sued by

anonymous indivic.uals (see factor 6) . Doe v. Frank, 951 F.2d

320, 323-324

(11t,h Cir. 1992) .

- 20 -

a. . Highly Sensitive, Personal Information

Plaintiffs are often pe mitted.to proceed anonymousl

cases involving highly persofial or sensitive matters such as

reproductive rights, sexual órientation or victimization,

nd"

health conditions, including mental illness, the disclosur

which might lead to stigmatization or ostracism; in such cáses,

no particularized showing of other specific .harm is necess rily

required.

See, e.g., Sealed Plaintiff v. Sealed Defendant

F.3d 185 ·(2d Cir. 2008)

537

(physical and sexual assault) ; Roe v.

Aware Woman Ctr. · for Choice, fInc., 253 F.3d 678, 685 (11th Cir.

2001)

(abortion);:Doe v.- U.S

Air Force,

812 F.2d 738,

739 n.1

(D.C. Cir.. 1987) - ("The distr ct court granted plaintiff

permission to file his compl int under a pseudonym because of the

Air Force's belief that he is homosexual;"); Doe v. Penzatb, No.

3:1.0-CV 05154-MEJ (N.D. Cal., May 13,

protective order)

2011) - (granting motibn for

(sexual batitery, human trafficking, and forced

labor); Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545,

550 (D.N.J.. 2006)

(bipolar d sorder; the court noted a

theoretical possibility" th t awareness of: the illness would

result in damage to the plai tiff's professional reputatioh); D[

v. N.Y. Blood Ctr., 213 F.R.D.

108,

112

(E.D.N.Y. 2003)

(hepatitis B from blood transfusion; "Although plaintiff h s made

no particularized showing of any specific harm or stigma to her

- 21 -

caused by IproseáitingFthe cásie' uhderTér dwn nam

plaintiff's spriiracy£ concerbs' aþpéa

JPhysicäl Ha m

to be s

sta tia

on s ) .

Another åatego'ry of basëè ikùÊÍch plaintdiffs are òftèr

allowede to proceidganonymously invòllÑrès

it 540Àhons

in whi 1

disclosure of identity. is deemed to pose a credible risk of

physical harm.

e+.g

Doé9vFStéÑáÑ, 653 F.2d at 186

(plaintiffs facedtpossible-sh 570sîcal

hartâ%écÅÜÂe of tÈÊi

espousál ofnunjopula

F . 2d 920,

rèlisiPôdèÁviéiô 541)"PIÈÏt 541d4StÁtfÉN.

Í)oe 6

9221 ('9tli Èir 2 \198Ó)

(dì¼cl$Âù¿e)ÕÏÊisÊrÙiÑmÈt

iddnti ty posed a ±isk of Á sëf ious%oÉlTy

a rm" f; AÊonymÊus

Commissioner,iU12''èT:Chak 94'liñ tiâx'dáficieå0Ùcãsàf risk ò

"severe=physióaRhäriÉ"#toSthéftaxpayèr aiN1 faniÎ ý of.Èweiglfe

t e

general public ir terest in knowing the taxpayer' s identity) ; Doe

a.~k:a. WC0612 v. U.S. Witness Prot. Prograni,"221 Ct. Cl.

941-942 (1979). (cenyir g .mbtion to dismiss)

(disclosure of

940,

identities of inc ividuals in witness protection program posed

risk of "danger" and "risk of serious, harm") .

Othe'r Si rni f i cant Narm

There are also diverse cases in which courts have, allowed

litigants t o proceed anonymously or pseudonymously to,protect

them against "ot-her~harms" thãt are deeméd to be' sufficiently

severe .

Sealed Plainti f f v. Sealed Def endant , supra at 190 .

these cases the courts have ."protected social', ps~ychölogical, and

economic interests; they have not always demanded proof of

threats to the plaintiff's p ysical security nor. have they alwaÿs

required threats to privacy fights."

Pseudonymous Parties:.

When

Steinman, "Public Trial,

hould Litigants Be Permitted To Keep

Their Identities Confidentia ?",. 37 Hastings L.J. 1,.75 (1985)

(fn. ref. omitted).

Social or Professional Stigma

Some cases grant anonymity in large part because of the

threat of social or professicnal stigma to such diverse, litigants

as attorneys.and doctors suirîg to enjoin disciplinary

proceedings,15 a job applicant suing to protect her reputation,

public aid recipients," and a corporate defendant sued by

insiders.18

Sometimes the risk of stigma is heightened because

15See, e.g., Doe v. Staté .Bar of Cal., 415 F. Supp.

308,

309

n.1 (N.D. Cal. 1976) (noting that the plaintiff attorney had been

permitted to maintain his ancnymity because .of the possible

adverse impact on his reputation), affd. 582 F.2d 25 (9th Cir.

1978) .

See, e . g . , Doe v. U. S . Civil Serv. Commn . , 483 F . Supp .

539 (S.D.N.Y. 1980) (unsuccessful job applicant for White House

fellowship suing with respect to derogatory and prejudicial

allegations in her file) .

See, e.g., Campbell v. USDA,

515 F. Supp. 1239,

1245

(D.D.C. 1981). (Social Security income applicant permitted to. sue

anonymously to compel promulcjätion of regulations "to protect

sensitive personal informatidh and to shield her from fear d

abuse and harassment from he neighbors, the media, and the

public") .

18See Doe v. A Corp.,

1983)

709 F.2d 1043,

(noting with apparent

1044 n.1

(5th Cir.

proval that-the District Court had

(continùed. . . )

23, -

the partygseekir g anonfmit"y bélòn§s?tiöUå*j$áfti$1Ía ly vuln

group, suchgas -juvenirles$or ilTëgalÚmËigran

ii:

corfómiùRÊtalia 570o arm

Somencases spermit litigañts tö·pfoceÊd aí onymo

pseudonymously. th þrotect thëm agãìnstSjfoséibl

reta

c no

ato3y harm$jFor instance5, thet CÊ1rt òf A peals fó

NinthqCircyit co 2cluded tshat? We 576tfÅoÊdinary"

e onômic h rm

ustified allowi:1g Chinese workéf 541,

é plöyeá81

Ivfaki

Islands, to 4proceed(p 541eudonyinóüsly

1 t hélÊsÔ

È 6ÈgÉ

the Fair Labor Standards Act löf*1538

t at

ÊL

1060 c(current2ersionfat 294UfSMÅsècs

)

6 76

2 9

(200É )

Thru XXHIrv. tAdvånced 9Textï#ld 4oïi. , 214 F . 3d

t 10$2 .

Court oft Appeals cóntrastéd tlie T"ektTel e nat

retaliation" faced by these worker , whicl

ihb1 d

576)

hë

thfm

a i

of employment, deportation, and possible arrest upon their return

(.a . contint ed)

granted pseudonymity "Tö prevènt identificat icIn of the comp ny

and the pòssible disclosure of confidential infbrmation

concerning its 'af fairs")'.

See,· e.g., United' Stateå v. Doe,

385-F. Supp.

902,

903

(D.

Arlz. 1974)." (juvenile de'li'nquent's identity protected because

"these are juveni Le proceeding's")*.

20See, re:g., ?L'ozano v. City of Hazletor1, 496 F. Ñupp. 2d at

514 ;(."The highly Legal nature"'of the i^ssues here, combined with

the intense publid interest and stfong 'level of emotion 'Êonnected

with the. issue mean that the uhdocumented immigrants 'who. se k to

participate- in th'cs' acti"on face 'éxt 576a"òr'dina~ry

~circumstances that

require,anonymity if· they'hope- to pi-oceed w'ithóÜt facing

unsupportable burdens . " ) .

24 -

t-o China, with the consequen es faced by "typical" FLSA

plaintiffs, stating:

"While threats of tertÀination and

blacklisting are perhaps typ cal methods by which employefs

retaliate against employees who assert their legal rights;it the

consequences of this ordinarý retaliation to plaintiffs, afe

extraordinary."

Sugars,

Id. at 1069i 1071; see also-Gomez v'. Buckèye

60 F.R.D. 106,

;LO6

(N.D. Ohio 1973)

(permitting FilSA

plaintiff employees to proceed anonymously ."in order to sà!feguard

against .any possible reprisals by their employers' that might

result from the filing of this'lawsuit.").

But see S. Methodist

Univ. Association of Women Law Students v. Wynne & Jaffe, 0599

F.2d 707, 713 (5th Cir. 1979)

(denying anonymity for women

lawyers who had joined a title VII sex ·discrimination suit

against two law firms) .

The holding in S. Methodist Univ. .Association of Womën Law

Students v. Wynne & Jaffe, 599 F.2d 707,

Doe v. Stegall,

713

(5th Cir.

197i9),

appears predicated partly on the court's statement that one

characteristic common to all þases affording plaintiffs anônymity

was that the plaintiffs "divu).ged personal information of tzhe

utmost intimacy". Two years !1ater the Court of Appeals clarified

that its opinion in S. Methodist Univ. Association of Womeñ Law

Students did not purport , to elstablish the "utmost intimacy÷

consideration . as a prerequisite to bringing an anonymous sùit .

653 F.2d f80,

185-186

(5th Cir. ;1981) u(pertNitting

child plaintiffs to proceed anonymously in action challenging

constitutionality of religiou observances in public schools) .

The court indicated that ~therè was "no hard and fast formufa for

ascertdining whether a party nay sue anonymously" but that· the

decision "requires _a balancinc) of considerations calling for

maintenance of a party's privácy against the customary and.

constitutionally-embedded pre 541umption

of openness in judicial

proceedings . " L_,_ at 186 .

- 125 -

In Does T Thru XXIII v. Advanced Textile Corp. ; supra at '' :

1068, the Court of Appeals held that in evaluating- the severity

of potential retaliatory action, sthem trial courtvshould take into

consideration, _anong other factors,, the, severity of t-he

threatened harm, the reasonableness of the party's fearsµ and.the

party's vulnerab..lity to harm.

.Applying this test, ,the'Court of

Federal Claims permitted Native American,plaintiffs to_proceed

anonymously in a Tucker Act proceeding that pitted theiropersonal

interests against. the interestssof, t-he communities of which they

were members.

Wolfchild v. United.States, -62 Fed.

042Cl.

at '521.

Cit ing the plaint i f f s ' . risk -of economic -harm through the los s of

per capita payments and their risk of losing membership in their

communities if their identit.ies were disclosed, the .court found

that the threatened harm was sufficiently esevere to justify_ their

request for anonymity.

Id. at ,553.

The court also noted that

letting, these p12intiffs proceed anonymously- accorded with the

practice of the Bureau of Indian Af fairs to, provide anonymity for

Native Americans in membership disputes with their , communities .

Id. at 554.

In so-callec . qui, tam. actions *arising undér the False Claims

Act,

31 U.S.C.

se cs. 3729-3733 r (2006), 'pl'aintiffs sometimes se k

to protect their identities on the basis of feäred retaliatory

- 26 -

harm._22

The results have been1mixed.

CompaÊe UnÁted Stat s ex

rel. Permison v. Siiperlhtive Techs., Inc., 492 F. Supp. 2

564

(E.D. Val 2007)

(in a qu

561,

tam suit against the plaint ff's

former employer, denying a r quest to seal the complaint

r to

grant anonymity becaúse alth ugh "fear of retaliation is

entirely implausible, it is

ertainly vague ånd h 570pothetical

best"), and United States v

Bón Secours Cottage Health Servs.

665. F. Supp. 2d 782

(E.D. Mi h. 2008)- (denyinf a qui tam

plaintiff's request to- màint in the seal in the case or

alternativelf to^ rèdact ident ifying information from the r cord

concluding that the plairitif f ' s fear of retaliation by her

current dr future employers Éas insufficient to overcome the

strong presumption favoring jublic access to judicial records),

with

4:07-CV-2467

D e v. Boston Scientific Óorp. , No.

(S.D. Tex.', July 2, 2009)

(granting a qui tam

plaintiff's request to keep 1 r identity under'seal until

case was resolved because the plaintiff, who was for$eriy

employed by a medical device company that was tlie subject

f he

22"Qui tam" is shorthand or the Latin expression "qui tam

pro domino rege quam pro se i so in hac parte sequitur", meaning

"who as well for the king.as for himself sues in this mattsr"

Black' s Law Dictionary 1368 ( 540th

ed. 2009) . Private indiv$duals

may bring qui tam actions on l$ehalf of the United States tcÍ

recover damages against .persons who have submitted false oÉ

fraudulent claims to the Goveihnment.

Id. Such an action Éllows

the plaintiff to recover a poftion of any money recovered l$y the

Government ln the action.

31 U.S.C. sec. 3730(d)

statute, a qui tam complaint

days after it is filed.

_I_d

(2006).

emains under seal for at least 60

ec. 3730 (b) (2) .

- 27 qui tam icomplaintF feáred thát

ehlinÊ Ì1

ic n it

her husbaríd, who sworkeci siri tlîe s me inÉiustfy, t c

that he would b

unable há obt

in impôrtar t wa

Bub

c ause

qui tam cÉses and tax

Unlike th

Claims Act, sectii'ön 7 23 Únålüdes no pro ision f

searlingithe rècbrd

r n w er$plòým it)

Despite sorreMimilarities

whistleblower3cases diff

e .

6 (

(1)

alse

t mpora ily

(a thc 041rizìr

g the Tax

Court to maké an( p o 570ision

nécessary to prevent the disclosure

of "confidential ilïfo 570matiön"

1d ür li

the

see 31 U. S i C.

seÊti 15

623 conta n

seö.'3730 (h

antiretaliatòry*proÿisio21

(2 0 )

infr

a se È1aim

III.C.luc.«iii

Whêré s the i fendÈÏit

n a qui

generally be aan

ndifi'dtia

t ty,

resporrderit i

1 ngó

a t áx ¼histlèbl

er ca e

nt 1

awÄre bf the whi t

identity.

histle loNer cl

ca e wi

1 alw ys be th

Commissioner of t he IRs, whc i

The stbjè'cDof

ower s

m, u 1

e th

defendant in a qui tam"case, is not a party to the case and may

not even be aware of the case.23

Finally, a tax whist51 blow r

23Neither sec ._ 7623 nor this Court' s Rules contain any

express provisioh fo'r 'notice ofilit$rvention with respect to 042the

subgect of a whistleblower claiml in a' Tax Court proceeding to

revlew"a whistlebl.ower award dete'rmination.

Cf*.. sec. 6015(e) (4)

(providing 'that i E an individu'alf petitions the Tax 'Coiirt~to

determine relief Erom' jo'int and, sev'eral 'liability on a joint

return, the nonrequesting spouse is t'o receive ádequate notice

and an opportunit7 to become a 'party tò 'the procee'ding)-; Rule .325

(regarding notice and intervent!ion' by the nonpetitioning spouse

in an action to determine relief from joint and several liabilit

(continued. . . )

case under section 7;623 (b) ,

nlike a qui tam case,. is an

ppeal

from an administrative proce ding in which the whistleblo er's

confidentiality typically wi 1 have been maintained.

iii.

CoÈfidential Informants

Some courts have permit ed confidential informants,

litigating in that capacity, to proceed anonymously.

particular, when a tax whistleblower brings an action under the

Tucker Act, the Court of Federal Claims sometimes allows the

claimant to proceed anonymously as a "confidential informant".

See Confidential Informant V

United States, 46 Fed. Cl. I

(2000); Confidential Informa t 92-95-932X v. United States, 45

Fed. Cl. 556 (2000.) ."

Similarly, with little discussion a

District Court recently affi med a magistrate,judge's .

determination that a confidential informant should be allowed to

proceed anonymously in an act ion stemming from a city's

disclosing the confidential informant's identity to a newspaper.

" (. . . continued)

on a joint return) .

"The Court of Federal Claims originally filed these

decisions under seal and later made the decisions public after

making redactions' requested by the parties. See. Confidential

Informant v. Unitéd States, 46 Fed. Cl. 1, 1 (2000); Confi'dential

Informant 92-95-932X v. United States, 45 Fed. Cl. 556, 55%

(2000) ; see also Jarvis v. Udited States, 43 Fed. Cl. 529 (1999)

(employing a similar procedure) . There .is also pending ind the

Court of Federal Claims another such case captioned Confidential

Informant 59-05071 v. United States, No. 11-153C .(Fed. Cl.

filed

Mar. 10, 2011).

-:29--

DKT v. City of Kokomo;v1:10-cv-0006.6-TÑþ-MJD (S

2011) .

F b.

.Although not determinative*of petitioner's request to

litigate anonymously, _these cases'are-indicative of oür lecjal

system's -general solicitude for confideritial informants.

For

instance, various provisions of the Internal Revenue Code

generally prohibit the IRS from disclosing the identities of

conf idential inf ormant s .

See, e . g . ',

se c . 042610 3 (d) (1) ,

(h) (4 ) ,

(i) (6) .

In addition

in court proceedings the so-called informer

privilege genera:.ly permits the Government to "withhold from

disclosure the identity -of persons ·who furnish inforthatiôri of

violations of law,to officers charged with enforcement öf -that

law."

Roviaro v. United States, '353 U.S.

53,

(i957) .

"The

privilege recognizes the obligation of citizens to communicate

their knowledge cf the commission of crimes to law-enforcement

officials and, by preserving their anonymity, encourages them to

- 30 perform t hat iobligation."25

As one court 1·ïas explained, the

informer privilege.

is an ancient doctrine ith its roots in the English

common law, founded upon the proposition that an

inf ormer may well suf f er} adverse e f fects f rom the

disclosure of his identity. Illustrations of how

physical harm may befall one who informs can be found

in the reported cases. However, the likelihood of

physical reprisal is not a prerequisitfe to the

invocation of the privilege. Often, retaliation may be

expected to take· more subtle forms such as economic

duress, blacklisting or social ostracism. The

possibility that reprisa s of . some sort may occur

constitutes nonetheless

strong deterrent to the

wholehearted cooperation of the citizenry which is a

requisite of effective law enforcement.

Courts have long re ognized, therefore, that, to

insure cooperation; the fear of reprisal must be

remòved and that "'the m st effective protection from

retaliation3is the. anonyrïtity of the informer. '"

{Socialist Workers PartV v. Attorney General (In re

United States), ,565. F.2dfl9,

(2d Cir. 1977);

internal; citations omitt d; quoting Wirtz v. Contl.

F1n. & Loan Co., 326 F.2d 561, 563-564

1964 ) . ]

(5th Cir.

Although no privilege sitùilar to the informer privilege

shields the identities of infc rmants who speak to private

plaintlffs or thei 570

counsel (

opposed to Government counsel)

2sThe informer privilege s not absolute but is to be

balanced against fundamental ¼equirements of fairness and

disclosure in the litigation j$rocess. Roviaro v. United States,

353 U.S. 53,

60-61

(1957) .

Although Roviaro was a criminal case,

in c1v11 cases the doctrine of informer privilege may apply when

it appears that the informantëwill be the target of retaliatory

actions by the person who is the subject of the information.

See, e . g. , Socialist Workers sarty v. Attorney General (In re

United States), 565 F.2d 19,' 22 (2d Cir. 1977).

"Indeed, there

1s ample authority for the próposition that the strength of' the

privilege is greater in civil litigation than in criminal." Id.

courts employ a balancing -test to protect confidential informants

in such circuinstënces. , Sëe wohl, "Confidential ,Informants_in

Private Li igaticn:

Balancing Interests in Anonymity and

Disclosure", 12 Fordham J. Corp.. & Fin. L. 551.,

For instance, in a case b

575÷579

(2007)..

uÛht by pr vate individuals against a

company under the Racketeer Influenced and Corrupt Organizatiions

Act , 18 U. S . C. se cs . :1961-1968

(20 06) , the District'«Court |denied

a defendant's motion to compel production of documents that would

reveal the identities of the plaintiff's confidential sources

within the company .

Serv. Có.,

Mgmt . Inf o . Techs . / Inc . v .> Alve ska -Pipeline

151 F.R.D. 478

(D.D.C. 1993).

Writing for' the court,

Judge Sp,orkin described the risks of retaliation that

whistleblowers 'face:

The case law, academic studies, and newspaper accounts

well document . the kindnof- treatmentythat sis,usually

visited upon public and private employees who speak out

as a matter of conscience pn issuesmof jpublhic conóern.

Fór example, a six-year study on whistleblowers by

Myron Peretz Glazer and ;Penina Migda,Glazeiradetai<ls

the füll speòtrum of management retaliation against

etl igal, resistors whogspeak out agAiñatr cömpaný 042or

gdveisiinent- policy and the long-term adverse

consequences such employees:can face. . See, Mýron

Perët 576

Glaze r and Penina Migdal Glazer, The

Whistleblowers: Exposing Corruption in¼Governmerit and

Indüst 576y

21f (1990) (study of sixty-four whistleblowers

showed þigni Ei can, percentage fremainsout áf work "or

undërem#1óýed,~~bitter aßout their punishment-, and

uncertain of eveglging ablegto restore 4t,hei2r lives

fully") .