Case: 1:19-cv-00475-MRB Doc #: 7 Filed: 06/28/19 Page: 1 of 6 PAGEID #: 41

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

JOHN DOE 1, et al., : Case No. 1:19-cv-475

:
Plaintiffs, : JUDGE BARRETT
:
v. :
: JOINT MOTION OF DEFENDANTS CITY
CITY OF CINCINNATI, et al., : OF CINCINNATI AND BRIAN SHRIVE FOR
: AN ORDER DIRECTING PLAINTIFFS TO
Defendants. : REVEAL THE IDENTITIES OF PLAINTIFFS
: JOHN DOE 1 AND JOHN DOE 2

John Doe 1 and John Doe 2 filed this action on June 24, 2019, alleging that the

City of Cincinnati violated their civil rights by, essentially, complying with a state court

order and the Ohio Public Records Act. The plaintiffs also seek injunctive relief against

the City of Cincinnati, Binary Intelligence, and Brian Shrive. Brian Shrive and the City of

Cincinnati move this honorable Court to compel the plaintiffs to reveal their identities as

required by Rule 10(a).

Facts and Allegations

On April 9, 2018, Brian Shrive filed a lawsuit against the City of Cincinnati and

Councilmembers Sittenfeld, Seelbach, Landsman, Young, and Dennard, alleging that the

councilmembers violated the Open Meetings Act. (Complaint, ¶17; State ex rel. Miller v.

Sittenfeld, Ham Cty. Com. Pl. No. A1801934, “Complaint for Injunctive Relief Pursuant to

R.C. 121.22,” attached as exhibit A). In October and November of 2018, Councilmembers

Sittenfeld, Seelbach, Landsman, Young, and Dennard used the services of Binary

Intelligence to collect and process text messages for the period from January 1 to October

23, 2018. (Complaint, ¶20; see also State ex rel. Miller v. Sittenfeld, Ham. Cty. Com. Pl.

No. A1801934, “Agreed Judgment Entry Final Entry,” attached as exhibit A to Plaintiffs’
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Motion for Temporary Restraining Order Against Defendants City of Cincinnati and Brian

Shrive. (doc. 6-1)).

On October 23, 2018, the state court trial judge denied a protective order filed by

the defendants and ordered them to “turn over all the text messages and emails that fall

between” January 1, 2018 and October 23, 2018. (See State ex rel. Miller v. Sittenfeld,

Ham. Cty. Com. Pl. No. A1801934, “Entry Overruling Defendants’ Motion for Protective

Order,” attached as exhibit B). The City provided all texts and emails between the

councilmembers from January 1, 2018 to October 23, 2018 to Brian Shrive, attorney for

the relator. (Complaint, ¶23).

Shortly after the resolution of that case, additional public records requests were

made by Brian Shrive (on behalf of a clinet) and members of the media regarding a variety

of topics, including messages related to funding for the Center for Closing the Healthcare

Gap, as well as messages related to Harry Black and Mayor John Cranley, among other

topics. (Complaint, ¶24). The plaintiffs in this case allege that the new, expanded request

by Mr. Shrive included communication from “a whole host of private individuals to and

with the council members and was not limited to communication about City business.”

(Id.)

John Doe 1 and John Doe 2

The plaintiffs allege that they communicate with members of Cincinnati City

Council on matters of political and social concern. (Complaint, ¶6-7). The plaintiffs do not

allege that their communications never concerned City business.

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Law and Argument

A. Plaintiffs’ Identities Should be Revealed to Defendants and their

Attorneys

Rule 10(a) of the Federal Rules of Civil Procedure requires the complaint to name

all parties. FRCP 10(a). Here, the plaintiffs have not moved for leave to proceed

anonymously, nor have they identified any exceptional circumstances to deviate from the

rule set forth by Rule 10(a). Generally, judicial proceedings are open to the public. Craig

v. Harney, 331 U.S. 368, 374 (1947)(“What transpires in the courtroom is public

property.”) Leave to proceed anonymously is within the discretion of the court. Doe v.

Porter, 370 F.3d 558, 560 (6th Cir. 2004). However, the general presumption of

transparent judicial proceedings places a “heavy burden” on the plaintiff who wishes to

proceed anonymously. Doe v. Warren County, S.D. Ohio No. 1:12-cv-789, 2013 U.S. Dist.

LEXIS 25243 at *6; see also Doe v. Washington Post, D.D.C. No. 19-477, 2019 U.S. Dist.

LEXIS 94422 at *10 (“The plaintiff has failed to meet the “heavy burden” of establishing

that his privacy interests outweigh the public’s interest in knowing his identity.”) To satisfy

this heavy burden, the plaintiff must show “the need for anonymity substantially outweighs

the presumption that parties’ identities are public information and the risk of unfairness to

the opposing parties.” Doe v. Warren County, 2013 U.S. Dist. LEXIS 25243 at *5

(emphasis added).

In making this determination, courts may consider: (1) whether the plaintiffs

seeking anonymity are suing to challenge governmental activity; (2) whether prosecution

of the suit will compel the plaintiffs to disclose information of the utmost intimacy; (3)

whether the litigation compels plaintiffs to disclose an intention to violate the law and risk

prosecution; (4) whether the plaintiffs are children; and (5) whether the defendants are

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being forced to proceed with insufficient information to present their arguments against

the plaintiff’s case. Doe v. Warren County, 2013 U.S. Dist. LEXIS 25243 at *6.

Here, the plaintiffs are suing to challenge, in part, government activity (but also

seeking relief against non-governmental actors). As to the other factors, the fact that the

plaintiffs sent messages to councilmembers on matters of political and social concern, as

well as personal and “friendly” matters, does not indicate that information of the utmost

intimacy will be disclosed by this litigation. There are no allegations pointing to a concern

that disclosure will cause them to risk prosecution. In fact, exactly the opposite has been

alleged. (Complaint, ¶41). The plaintiffs are not alleged to be children, and the allegations

that some members of a class may be children are too speculative to outweigh the public’s

interest in judicial transparency.

As to the final factor, allowing the plaintiffs to proceed anonymously puts the

defendants at a disadvantage. For example, the plaintiffs filed a motion for a temporary

restraining order and supplied a declaration signed by “John Doe.” The declaration, such

as it was, was not even dated, and there is no way for the defendants to test the credibility

of such a declaration, or such a witness. More significantly, the plaintiffs wish to proceed

as representatives of a class, but the defendants have no way to determine whether these

plaintiffs are in fact adequate representatives of the class, or that there are questions of

law and fact common between them and other potential plaintiffs. How can the defendants

determine whether John Doe 1 or John Doe 2 are in fact private citizens, and not public

figures? The defendants will need to test standing, conduct discovery, and cross-examine

the plaintiffs. Without real identities of John Doe 1 and John Doe 2, the defendants will

be prejudiced.

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B. Public Interest Disfavors Proceeding Anonymously

The public interest in this case will be high. The state court litigation was heavily

reported, as noted in plaintiffs’ motion for a temporary restraining order. The public has

been and will be interested in knowing the parties involved in this lawsuit and following

the legal issues involved. It is the public that has an interest in knowing the identities of

the parties. See Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011)(acknowledging “the

thumb on the scale that is the universal interest in favor of open judicial proceedings”).

This factor weighs in favor of identifying the plaintiffs.

Conclusion

Based on the foregoing, the defendants respectfully move this court to compel the

plaintiffs to identify themselves under FRCP 10(a), or, if they refuse, to dismiss the

complaint.

Respectfully submitted,

PAULA BOGGS MUETHING

CITY SOLICITOR

/s/ Peter J. Stackpole____________ /s Curt Hartman

Peter J. Stackpole Curt. C. Hartman
Emily Smart Woerner The Law Firm of Curt C. Hartman
801 Plum Street, Suite 214 7394 Ridgepoint Drive, Suite 8
Cincinnati, Ohio 45202 Cincinnati, Ohio 45230
Phone: (513) 352-3350 Phone: (513) 379-2923
Email:peter.stackpole@cincinnati-oh.gov Email: hartmanlawfirm@fuse.net
Trial attorney for Trial attorney for
Defendant City of Cincinnati Defendant Brian Shrive

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CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing was filed electronically.
Notice of this filing will be sent to all parties by operation of the Court’s electronic filing
system and copies will be e-mail to counsel who are not served via the Court’s electronic
filing system (Adam Webber, awebber@elliottfaulknerlaw.com, Counsel for Binary
Intelligence). Parties may access this filing through the Court’s system.

/s/ Curt C. Hartman

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