How to Avoid the Publicity Arising from a Lawsuit
People in lawsuits often say bad things about their opponents. A plaintiff may accuse a defendant of fraud or negligence. There may be allegations of racism, sexism, or abuse. And a defendant may allege that the plaintiff was actually a bad person who got what was coming to them because of their own horrible conduct.
At the same time, people do not want unflattering statements about them to be publicly available. Moreover, they do not want unflattering things about them to be publicly available in the formal style of a legal document, which may suggest to an average person that they must be true because a lawyer wrote them in flowery language in a numbered paragraph.
But because many documents filed in lawsuits are publicly available, these negative statements often get aired to the world.
Why should you keep reading this post about confidentiality in lawsuits?
Someone just accused you of something terrible in a lawsuit and you are scouring the internet desperately for help on what to do.
You are thinking of suing me and want to make sure I don’t have a way to keep the world from reading all of your gory allegations.
You have challenged yourself to read every blog post on the internet and you’re not going to stop now.
Litigation Filings in New York Are Publicly Available
In New York, parties file documents in lawsuits through NYSCEF or ECF, just like I discussed in the e-filing post. Once they are filed, the public can view them and whatever allegations are in them, just by searching for the name of one of the plaintiffs or defendants. Even if a document is not available on an e-filing website, the public can still go to a county clerk’s office and see copies of documents filed in a case (although this is much more cumbersome to do than to browse documents over the internet).
People Are Generally Free to Discuss Your Lawsuit
If someone finds the filings and publicizes them further, it is usually too late to do anything about it. Newspapers and other media often scour filings to look for scandalous claims to publicize. And sometimes search engines can capture them and the filings can get captured by internet searches. There is virtually nothing that can be done to stop people from talking or writing about something that is already in the press or captured by search engines.
In New York, if someone makes hurtful allegations against you in a lawsuit, but then you later win the lawsuit, the documents they filed with those allegations remain publicly available. And, generally speaking, news media do not publicize a defendant’s clearing of their name with the same vigor that they publicize scandalous allegations.
Moreover, you likely cannot win a lawsuit against someone in New York for the embarrassment you suffered from the allegations they made against you in court. This is because statements in a lawsuit are protected from defamation claims that you may have if the person said untrue things about you in the newspaper. This protection is called the “litigation privilege.” Nor could you likely prevail in a defamation claim against a newspaper if all it did was report on the claims.
You Can Try to Avoid the Publicity of Lawsuits
So what can you do to avoid publicity?
First, you can try to keep the case out of court. You can do this by considering settling your dispute with your adversary before the case even gets filed. You can also make arbitration agreements with the parties most likely to bring claims against you before a dispute even arises. Arbitration is an alternative to litigating in court and arbitrations are confidential. Nevertheless, a party to an arbitration agreement can still file a litigation against you with their negative claims, but they are less likely to do so because it will likely be dismissed.
Second, you can ask the court to proceed in the case under a pseudonym so that the allegations against you are not easily traceable to you. Plaintiffs often do this in cases where they do not want negative publicity. (For example, Roe was not the actual name of the plaintiff in Roe v. Wade). But I have seen judges allow defendants to use pseudonyms as well. You can also ask the court to “strike” certain documents from the public record or to keep certain documents away from public view by asking they they be filed “under seal.” Judges do not always grant these requests, balancing the need for public awareness of the judicial process with the parties’ desire for confidentiality.
And third, if the lawsuit settles, you can make a condition of the settlement agreement that the other side disavows the allegation and does not disparage you further. This may be helpful for you to explain to people later why the allegation should not be credited. But the other side may not agree to this, and even if they do, the documents with the original allegation would still be publicly available.