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If You Need to Sue the Bastards
Keeping Your Case and Your Confidentiality

By Catherine Hanssens, Esq.

Fall, 1995

A sobering number of people living with HIV have looked to lawyers in response to the discrimination and assorted roadblocks that those dealing with this disease regularly navigate. Others find themselves facing legal proceedings which involve their health status only indirectly or not at all, Regardless of the reason for the legal action, potential litigants will need to consider whether the proceeding might result in the disclosure of HIV status. While many PWAs go public with their health status on the belief that keeping it private tacitly endorses stigmatization, the continuing reality for many more is that disclosure places a job, insurance and even safety at risk.

David Webber, editor of the text AIDS and the Law and a legal consultant who has represented or counselled many PWAs, notes that any attorney representing clients with HIV should consider in advance the ways in which the client's health status might be disseminated as a consequence of the client's involvement in legal proceedings. However, sometimes a client living with HIV is better able to anticipate disclosure issues than an attorney who is unfamiliar with representing PWAs or insensitive to the consequences of disclosure. Here, as in most contexts, it is helpful to be an educated consumer.

When disclosure of HIV status is reasonably likely, as in any case in which HIV-related discrimination is an issue, use of a pseudonym ("Jane Doe" and "John Doe" being the ubiquitous examples) is the primary way to make sure that third parties do not get access to HIV and other health-related information as a consequence.

Most federal courts will allow a plaintiff to file a lawsuit using a pseudonym when the plaintiff clearly sets forth the reasons why confidentiality is necessary, although working this out in advance with the defendant's lawyer generally is a good idea. It has become fairly common practice for litigants with HIV to choose this route, and the occasional defendant who tries to "out" the plaintiff with HIV as a form of intimidation (as the law firm defendant in the Philadelphia lawyer case, Scott Doe v. Kohn Nast, did) is more likely to earn a rebuke from the court than to succeed. State courts also have allowed use of pseudonyms or initials in place of a name in the caption of cases in which a party's HIV status is likely to come up. To accomplish this, the attorney for the client with HIV can file court papers using initials or a pseudonym, together with a request for a court order protecting the client's identity.

Use of a pseudonym is not an airtight guarantee of confidentiality, however, and publicity about a case which provides enough detail for others to identify the person bringing the lawsuit may undo the point of the precautions. Although administrative proceedings, such as EEOC (Equal Employment Opportunity Commission) investigations or complaints to other civil rights agencies generally are not public documents, even these agencies can inadvertently produce the harm they exist to prevent. In one such case, a person who complained about HIV-related employment discrimination to the New York City Commission on Human Rights had his expectations about confidentiality shattered when the Commission issued a press release about the settlement of the case. Although the press release did not identify him by name, it provided sufficient information to allow his coworkers to identify him. He sued the Commission for the disclosure, and the subsequent New York Court of Appeals ruling, Doe v. City of New York (1994), reaffirmed the federal constitutional privacy rights of persons with HIV and the complainant's reasonable expectation that the settlement would be kept private.

Because cases, particularly those involving HIV-related discrimination, may rely on documents such as medical records or other information that would identify the party or that person's HIV status, a request to the court for an order sealing the case record also may be worth considering. This usually can be worked out in advance with the attorney for the other side, and then the lawyers for both sides file a stipulation to that effect with the court. If the other side is uncooperative, the party trying to maintain the privacy of this information can file a request for a protective order with the court.

Finally, though, it has not been unusual for a person with HIV in a high-profile discrimination case to begin with a pseudonym and then abandon it later in the lawsuit, often because the concern with disclosure fades with the desire to become a more visible spokesperson on the impact of ignorance and HIV-related bias on real-life people.

Catherine Hanssens is the AIDS Project Director at Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.

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