USCA4 Appeal: 23-1177 Doc: 75 Filed: 02/21/2024 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1151

JANE DOE,

Plaintiff – Appellant,

v.

CENK SIDAR,

Defendant – Appellee.

No. 23-1177

JANE DOE,

Plaintiff – Appellant,

v.

CENK SIDAR,

Defendant – Appellee.

------------------------------

PROFESSOR EUGENE VOLOKH,

Amicus Curiae. USCA4 Appeal: 23-1177 Doc: 75 Filed: 02/21/2024 Pg: 2 of 17

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:22-cv-00545-CMH-JFA)

Argued: December 7, 2023 Decided: February 21, 2024

Before WILKINSON, KING, and HEYTENS, Circuit Judges.

Appeal in No. 23-1151 dismissed. Order in No. 23-1177 vacated and remanded with instructions by published opinion. Judge Heytens wrote the opinion, which Judge Wilkinson and Judge King joined. Judge Wilkinson wrote a concurring opinion.

ARGUED: Walter E. Steimel, Jr., STEIMEL COUNSELORS LAW GROUP PLLC, Washington, D.C., for Appellant. Mariam Wagih Tadros, WOMBLE BOND DICKINSON (US) LLP, Tysons, Virginia, for Appellee. ON BRIEF: Thomas F. Urban, II, FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for Appellant. Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, for Amicus Curiae.

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TOBY HEYTENS, Circuit Judge:

A woman sued a man for sexually assaulting her and used a pseudonym throughout

discovery. After the man refused to comply with its discovery orders, the district court

entered a default judgment against him and ordered the woman to use her real name going

forward. The woman appeals the district court’s non-anonymity order, along with a

separate order denying her request to compel the man to provide a DNA sample. We

dismiss the appeal from the discovery order for lack of jurisdiction. On the non-anonymity

order, we hold the district court committed legal error by understating the woman’s interest

in anonymity, appearing to announce a general rule that fairness considerations invariably

cut against allowing a plaintiff to be anonymous at trial unless the defendant is also

anonymous, and failing to recognize the significance of its default judgment on liability.

We thus vacate the non-anonymity order and remand for further proceedings.

I.

Because the district court entered a default judgment on liability, we treat it as

conclusively established that Cenk Sidar raped Jane Doe in London in September 2017. As

this Court has explained, “[t]he legal effect of a default judgment is that the defendant is

deemed to have admitted the plaintiff ’s well-pleaded allegations of fact . . . and is barred

from contesting . . . the facts thus established.” Mey v. Phillips,

(4th Cir.

2023) (quotation marks removed). For that reason, we must assume that Sidar “admitted

that he . . . raped” Doe and the truth of her allegations about how he did so. JA 27–28.

Doe first sued Sidar in Virginia state court for assault, battery, and intentional

infliction of emotional distress. After litigating that case for more than a year, Doe

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voluntarily dismissed it by taking a “nonsuit” under Virginia law. See Va. Code § 8.01-

380. As Doe later explained, she grew frustrated with her inability to get Sidar to comply

with discovery orders—particularly his failure to provide a DNA sample—and thought she

might have better luck in federal court.

Six months later, Doe filed this suit in federal district court, invoking diversity

jurisdiction and asserting the same claims. As she had done in state court, Doe filed her

complaint using a pseudonym and asked the district court to allow her to “participate in

this proceeding in an anonymous capacity.” JA 62. The court granted that motion the next

day.

A little more than a month later, Sidar filed a motion asking the district court to

require that Doe use “her true name” in “all filings and proceedings.” JA 72. The district

court denied that motion in an oral ruling but left open the possibility that Sidar could

“renew” it “at the time of trial.” JA 312.

The case proceeded to discovery. Again, Doe tried to obtain a sample of Sidar’s

DNA, asking the court to order him to provide one under Federal Rule of Civil Procedure

35. A magistrate judge granted Doe’s motion, and the district court upheld that order over

Sidar’s objections.

But Sidar flouted the court’s order—without obtaining a stay, he failed to appear to

produce a DNA sample at the time set by the court. See JA 763 (describing Sidar’s conduct

as “a clear and blatant violation of ” the court’s order). In response, Doe filed a “motion for

sanctions and to further compel compliance with” the order to produce a DNA sample.

JA 617. After a hearing, a magistrate judge recommended that the district court “enter a

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judgment of default against [Sidar] as to liability and proceed on damages alone” but

declined Doe’s request to take further efforts to force Sidar to provide a DNA sample.

JA 737.

The district court agreed with the magistrate judge on both points. In one order, the

court entered a “default judgment . . . against [Sidar] as to liability,” while stating the case

“shall proceed as to damages.” JA 781. In another order, the district court affirmed the

magistrate judge’s refusal to force Sidar to provide a DNA sample. In so doing, the court

adopted the magistrate judge’s reasoning that, because “liability would not be an issue at

trial and the trial would be limited to [Doe’s] alleged damages, there was no further” need

for Sidar to provide his DNA. JA 764–65. Doe noticed an appeal from the second order,

which was docketed as No. 23-1151 in this Court.

Two weeks after the district court entered a default judgment against him and

limited any further proceedings to damages, Sidar filed a “renewed motion to remove”

Doe’s “pseudonym designation” and asked the court to order Doe to use “her true name”

going forward. JA 808. A month and a half later—and 11 days before trial was to start—

the district court granted Sidar’s motion. Doe appealed that order too, and that appeal (No.

23-1177) was consolidated with her appeal from the discovery order. This Court granted

Doe’s motion to stay proceedings in the district court pending resolution of the two appeals.

II.

We begin, as we must, with our own jurisdiction. See, e.g., Mitchell v. Maurer,

(1934) (“An appellate federal court must satisfy itself . . . of its own

jurisdiction[.]”). Usually, no appeal will lie until a district court has issued a decision that

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“ends the ligation on the merits and leaves nothing for the court to do but execute the

judgment.” Catlin v. United States,

(1945). Doe does not contend that

standard is satisfied here. Instead, she says her appeal from the district court’s non-

anonymity order falls within the collateral order doctrine and that we have jurisdiction over

her appeal from the discovery order under both the collateral order doctrine and the doctrine

of pendent appellate jurisdiction.

Doe has the first part of that argument right. As both parties recognize, this Court

has held “non-anonymity order[s]” are appealable under the collateral order doctrine.

James v. Jacobson,

, 236–38 (4th Cir. 1993). We thus have jurisdiction in

No. 23-1177.

We conclude, however, that we lack jurisdiction over Doe’s appeal from the district

court’s refusal to take further steps to compel Sidar to provide a DNA sample. As Doe

acknowledges, that appeal “involves the review of a District Court’s discovery order[].”

Doe Br. 2. Such orders are “generally” interlocutory, and “courts have rather routinely

declined to extend the collateral order doctrine to discovery rulings.” MDK, Inc. v. Mike’s

Train House, Inc.,

, 119–20 (4th Cir. 1994).

Doe’s efforts to buck that trend fail. Doe insists the order preventing her from

obtaining a sample of Sidar’s DNA “is tantamount to a summary judgment against” her

with respect to a portion of her damages claim. Doe Br. 3. But even orders that actually—

not just practically—grant partial summary judgment to a defendant are not appealable

under the collateral order doctrine. See, e.g., American Petrol. Inst. v. Cooper,

, 353 n.7 (4th Cir. 2013) (appeal of partial summary judgment order filed after final

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judgment was timely because the partial summary judgment order was not immediately

appealable when issued). In any event, the Supreme Court “has expressly rejected efforts

to reduce” the collateral order doctrine to a “case-by-case appealability determination,”

stating we must examine “the entire category” of district court rulings “to which a claim

belongs.” Digital Equip. Corp. v. Desktop Direct, Inc.,

(1994)

(alterations and quotation marks removed).

The relevant category here is district court orders denying requests for a physical or

mental examination under Federal Rule of Civil Procedure 35. Doe cites no decision

holding such rulings are appealable under the collateral order doctrine. Contra Donnelly v.

Parker,

(D.C. Cir. 1973) (describing such orders as “interlocutory and

nonappealable”).

In fact, it appears this Court has already resolved the relevant question. In Bowles

v. Commercial Casualty Insurance Co.,

(4th Cir. 1939), our Court dismissed

for lack of appellate jurisdiction an appeal “from an order . . . directing that [the] defendant

submit to a physical examination.”

. Orders compelling a party to submit to a

physical or mental examination implicate serious privacy interests and cannot be undone

later. If those sorts of orders are not immediately appealable, it seems obvious that orders

denying such requests—the type of order we have here—are not immediately appealable

either.

It could be argued that Bowles is no longer binding on this point because it was

decided a decade before the Supreme Court announced the now-canonical formulation of

the collateral order doctrine in Cohen v. Beneficial Industrial Loan Corp.,

,

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546 (1949). But “[w]e do not lightly presume that the law of this circuit has been

overturned, especially where, as here” it is possible to read our existing precedent as

“harmonious[ ]” with the Supreme Court’s current approach. Taylor v. Grubbs,

(4th Cir. 2019) (quotation marks removed). Bowles is consistent both with the

view of most federal circuits that orders granting (and, by inevitable implication, denying)

requests for physical or mental examinations are not appealable under the collateral order

doctrine, * and with the Supreme Court’s repeated admonition that Cohen’s “narrow

exception” to the usual finality rules “should stay that way.” Digital Equip. Corp.,

(quotation marks removed). For that reason, we think Bowles’ conclusion remains

sound. We thus hold that the category of orders at issue—those denying a request for a

physical or mental examination—falls outside the collateral order doctrine.

That leaves Doe’s argument that because we have jurisdiction over her appeal from

the district court’s non-anonymity order, we have pendent appellate jurisdiction to hear her

appeal from the discovery order. Here too, we disagree.

Pendent appellate jurisdiction is also a “narrow” exception to the usual finality

requirements. Rux v. Republic of Sudan,

(4th Cir. 2006). Where that

exception applies, appellate courts have “discretion to review issues that are not otherwise

subject to immediate appeal.”

In this circuit, pendent appellate jurisdiction “is available

* See Reise v. Board of Regents of Univ. of Wis. Sys.,

, 294–95 (7th Cir. 1992); Parker v. University of Pa.,

, 947 n.5 (3d Cir. Apr. 29, 2005). Compare Accosta v. Tenneco Oil Co.,

(5th Cir. 1990) (holding that the Rule 35 order at issue “in the instant case” was appealable under the collateral order doctrine), with Goodman v. Harris Cnty.,

, 467–69 (5th Cir. 2006) (holding that Rule 35 order was not appealable under the collateral order doctrine.) 8 USCA4 Appeal: 23-1177 Doc: 75 Filed: 02/21/2024 Pg: 9 of 17

only (1) when an issue is inextricably intertwined with a question that is the proper subject

of an immediate appeal; or (2) when review of a jurisdictionally insufficient issue is

necessary to ensure meaningful review of an immediately appealable issue.”

(quotation

marks removed).

The discovery order here fits within neither category. Doe notes that both the district

court’s non-anonymity and discovery orders arise from the same general set of facts and

asserts that both “embolden assailants to weaponize the judicial system against victims”

and “discourage victims from defending their rights.” Doe Br. 3. Maybe so. But that does

not mean the legal issues presented by the two orders are “inextricably intertwined” or that

reviewing the discovery order now is “necessary to ensure meaningful review” of the non-

anonymity order. Rux,

. Doe’s challenge to the discovery order involves

the proper application of Federal Rule of Civil Procedure 35, as well as the scope of the

district court’s authority to manage discovery and impose sanctions. None of that has any

direct bearing—much less an unavoidable one—on whether the district court erred by

requiring Doe to use her real name during the remedial phase. (Indeed, as the reader will

soon see, our discussion of the non-anonymity order makes no mention of Rule 35, DNA

testing, or discovery standards.) We thus dismiss the appeal in No. 23-1151 for lack of

jurisdiction and turn to the merits of Doe’s appeal from the non-anonymity order.

III.

There is a “presumption” that parties must sue and be sued in their own names.

James v. Jacobson,

(4th Cir. 1993). “Pseudonymous litigation undermines

the public’s right of access to judicial proceedings” because “[t]he public has an interest in

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knowing the names of litigants, and disclosing the parties’ identities furthers openness of

judicial proceedings.” Doe v. Public Citizen,

(4th Cir. 2014) (citations

removed). For that reason, few cases warrant anonymity, and few litigants request it.

See Doe v. Doe,

, 211 (4th Cir. 2023) (noting that litigant anonymity should

be “rare” and justified by “exceptional” circumstances (emphasis removed)).

Like most questions “involving management of the trial process,” whether to allow

a litigant to proceed anonymously is “committed in the first instance to trial court

discretion.” James,

. But “[d]iscretion is not whim,” and “‘a motion to [a

court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment

is to be guided by sound legal principles.’” Martin v. Franklin Capital Corp.,

(2005) (quoting United States v. Burr,

(C.C.D. Va. 1807) (No.

14,692d) (Marshall, C.J.)) (alterations in original).

This Court’s decisions establish several guideposts for resolving requests to proceed

anonymously. To begin, district courts may not deny such requests “on the basis of general

disapproval of party anonymity at trial” or act based on any “general rule.” James,

. Instead, the decision whether to permit use of a pseudonym must be based on

“the circumstances of particular cases.”

.

This Court has also identified “five nonexhaustive factors for district courts to

consider when deciding motions to proceed by pseudonym.” Doe v. Doe, 85 F.4th at 211.

The first focuses on why the requesting party is seeking anonymity, asking whether “the

justification” “is merely to avoid the annoyance and criticism that may attend any litigation

or is to preserve privacy in a matter of [a] sensitive and highly personal nature.” James,

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. The second factor directs the court’s attention to risks of denying anonymity

by asking “whether identification [of the requesting party] poses a risk of retaliatory

physical or mental harm to the requesting party or even more critically, to innocent

nonparties.”

The third likewise focuses on the claimed need for anonymity by

considering “the ages of the persons whose privacy interests are sought to be protected.”

In contrast, the fourth and fifth factors focus on the legitimate interests on the other side

by asking “whether the action is against a governmental or private party” and assessing

“the risk of unfairness to the opposing party from allowing an action against it to proceed

anonymously.”

Having reviewed the record and the district court’s explanation, we hold that its

decision to remove Doe’s anonymity on the eve of the damages-only trial strayed from the

“legal constraints on” its discretion in three ways. James,

.

First, the district court “fail[ed] to adequately take into account” the nature and

strength of Doe’s legitimate interest in anonymity. Doe v. Doe, 85 F.4th at 210 (alterations

and quotation marks removed). The district court acknowledged that “the underlying facts

of this case are sensitive.” JA 921. But the court thought Doe failed to “demonstrate[] the

level of need for anonymity sufficient to allow nondisclosure” because she “chose[] to

bring” the “suit in the United States” and there are “no allegations” that Doe herself

engaged in “illegal activity.” Id.

That explanation seriously understates Doe’s legitimate privacy interests. To begin,

the fact that Doe chose “to bring this civil suit in the United States and seek” damages

(JA 921) will be true of every plaintiff seeking to proceed anonymously in federal court

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and is thus irrelevant to the required case-specific analysis.

In addition, the issues here are not merely sensitive—they involve intimate details

of Doe’s sexual assault and resulting “psychological trauma.” JA 33. Courts have

recognized “a plaintiff ’s interest in preserving privacy where the allegations concern

sexual assault.” Doe v. Doe, 85 F.4th at 212. In fact, this Court has noted that “the practice

of closing courtrooms to members of the public while a victim of sex crimes testifies”—a

step far more drastic than the “limited form of closure” represented by allowing a sexual

assault victim to use a pseudonym—“has not been uncommon.” Bell v. Jarvis,

(4th Cir. 2000) (first and third quote); James,

(second quote). For

that reason, “[f ]ictitious names are” often “allowed when necessary to protect the privacy

of children, rape victims, and other particularly vulnerable parties or witnesses.” Doe v.

Blue Cross & Blue Shield United of Wis.,

(7th Cir. 1997) (emphasis

added). The importance of these privacy interests is not limited to criminal cases. To the

contrary, there is an entire provision of the Federal Rules of Evidence whose purpose is to

protect the privacy interests of sexual assault victims—including alleged victims—in both

criminal and civil cases. See Fed. R. Evid. 412. This case thus implicates “privacy or

confidentiality concerns” of the highest order. James,

.

Second, the district court’s analysis was legally flawed in its suggestion that fairness

considerations invariably cut against anonymity unless the opposing party is also

proceeding anonymously. The court said “[f ]airness require[d]” Doe to use her legal name

at trial because Doe “brought this public civil suit, making allegations against [Sidar]” and

Sidar “continues in this suit using his legal name.” JA 922. The only case-specific fact

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mentioned by the district court in this portion of its opinion is that Sidar “has now been

found liable through a default judgment” (id.)—something that, as we will explain, cuts

sharply in Doe’s favor. See pp. 13–15, infra. The district court thus appears to have

endorsed a “flat rule” that the fairness factor always counsels against letting a plaintiff in

a civil action use a pseudonym at trial unless the defendant is also using one. James,

n.4.

That is not the law. This Court has never endorsed such a principle, which would

stray from the “particularized assessment of the equities” mandated by James.

. Indeed, in James this Court vacated an order forbidding the plaintiffs from testifying

anonymously even though no one was suggesting the defendant should also be anonymous.

See

, 242–43. (We note, moreover, that Sidar has never requested anonymity in

this case or in the state court proceedings.)

Third, the district court’s decision was based on a “f lawed . . . legal premise[]”

because it did not grapple with the fact that its entry of a default judgment tipped powerfully

in Doe’s favor. James,

. To the extent the court referenced the default

judgment at all, it appeared to view it as cutting against Doe’s request for anonymity,

mentioning it only in the portion of its opinion concluding that “[f ]airness require[d]” Doe

to use her legal name going forward. JA 922.

That too was legal error. That Sidar has already been found liable for raping Doe

and that further proceedings will be limited to determining the damages he must pay

significantly reduces any “risk of unfairness to” Sidar resulting from Doe’s continued

anonymity. James,

.

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To see why, consider two sources of potential unfairness when a plaintiff seeks to

proceed anonymously while making allegations against a known defendant. For one, there

is a concern that anonymity may serve as a “shield behind which” false or “defamatory

charges may be launched without shame or liability,” Doe v. Smith,

(7th

Cir. 2005), thus creating the risk a blameless defendant will suffer embarrassment and

reputational damage merely by being sued. There is also the one-sidedness of allowing a

plaintiff to “have [their] cake and eat it too” by gaining the ability to stay anonymous if

they lose—thus avoiding reputational harms from disclosing the underlying facts or

bringing an unsuccessful lawsuit—while retaining the power to reveal their identity if they

win. Doe v. Doe, 85 F.4th at 217.

Those risks evaporate once liability has been established. At this point, Doe is not

seeking to keep her identity secret because she fears she might lose this case. There is also

no risk Sidar’s reputation will be damaged by false accusations of wrongdoing. The district

court’s default judgment conclusively establishes that Doe is a victim and Sidar raped her,

and nothing that happens at a damages-only trial can change that.

The district court’s default judgment also reduces the risk that Sidar would suffer

any unfair prejudice at trial. Where liability has not been established, there is at least some

risk that jurors may view a decision to let one side proceed anonymously as suggesting that

the anonymous party’s claims are valid or that it has the better case than the non-

anonymous party. See James,

(recognizing the “concern that the jury’s very

knowledge that pseudonyms were being used” could “tend to validate” the plaintiff ’s

claims); see also Doe v. Ayers,

(9th Cir. 2015) (noting “risk that the . . .

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use of pseudonyms might prejudice the jury” in the anonymous party’s favor). But any

such concerns are weakened—if not eliminated—here because the jury will have no need

to guess about the court’s view of the merits of Doe’s claims. Instead, the court will tell

the jury that Doe’s claims succeed as a matter of law and that the jury may not revisit that

issue. It is hard to see how Sidar will suffer any extra prejudice from letting Doe use a

pseudonym in a case where the jury will be told it must take as a given that he raped her.

We thus conclude the district court exceeded the bounds of its discretion in its order

requiring Doe to use her real name at trial. Consistent with our past practice, we vacate that

“order and remand with directions to reconsider in light of this opinion.” James,

. By doing so, we acknowledge “the continued superiority of the trial court’s vantage

point in making this sort of discretionary decision” while expressing “confidence” in the

district court’s ability “to engage in true reconsideration that accepts and takes into account

the specific concerns with the decision under review that are expressed in this opinion.”

.

* * *

The appeal in No. 23-1151 is dismissed for lack of jurisdiction. In No. 23-1177, the

district court’s order is vacated, and the case is remanded for further proceedings consistent

with this opinion.

SO ORDERED

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WILKINSON, Circuit Judge, concurring:

I concur in the majority’s thoughtful opinion. I appreciate especially its recognition

of the potential for pseudonymous litigation to “undermine[] the public’s right of access to

judicial proceedings” and how “disclosing the parties’ identities furthers openness of

judicial proceedings.” Maj. at 9–10.

Transparency is not only important for its own sake. It is integrally linked to the

need of courts to maintain public trust. Doe v. Pub. Citizen,

(4th Cir.

2014). We are reliant in the first instance on the executive to enforce our judgments. And

ultimately, we are reliant on the public’s trust in the process by which those judgments are

reached. David F. Levi, et al., Losing Faith: Why Public Trust in the Judiciary Matters,

Judicature, Vol. 106 No. 2 (2022).

To reduce litigants to “Does” and initials risks making of them stick figures and

algebraic symbols. To forsake real names is to put the judicial process at one more remove

from the flesh and blood of life.

In pointing out the virtues of transparency, I do not intend to downplay the privacy

interests of those who have experienced sexual assault. There are few crimes so violative

of human autonomy and dignity as rape. And insult compounds this injury as victims of

this heinous crime are often stigmatized through no fault of their own. District courts must

retain discretion to protect the privacy of those who have suffered such an offense. James

v. Jacobson,

(4th Cir. 1993).

But pseudonymity generally, and one-sided pseudonymity particularly, is not

without its risks. Indeed, those accused of crimes can suffer reputational damage even when

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a court later finds that the accusations were unfounded. See Brief of Amicus Curiae,

Eugene Volokh, at 4–5. Allowing one party to proceed anonymously increases the potential

for abusive suits that use the threat of reputational damage to exact revenge or to extract

settlements from innocent parties.

at 8–9. Having one party incognito but not the other

can tilt the scales of justice in the direction of guilt by anonymous accusation, a prospect

which would be just as abhorrent to civil litigation as it is to our criminal justice system.

Rapp v. Fowler,

, 531–32 (S.D.N.Y. 2021); see also Volokh, supra at

8–15.

In the criminal context, a third party, the government, must conclude there is enough

grounding to an accusation to warrant prosecution. In the civil context, this third-party filter

is generally absent. Pseudonymity may enhance the incentives for well-founded complaints

to be filed, but it may also serve as a cover for actions that tarnish the innocent. Just as

district courts must have the discretion to protect victims’ need for privacy, they must also

retain the discretion to prevent pseudonymous abuse.

I concur in the majority opinion because it eschews a categorical approach to case-

sensitive questions which cannot be answered categorically. See James, 6 F.3d at 239–40.

The majority is also right to emphasize the importance of the default judgment here. Simply

put, the defendant is a rapist in the eyes of the law. While a trial as to damages might reveal

further details to the defendant’s detriment, the defendant has impaired his claim to

reputational damage by defaulting on liability. These limiting features in the majority’s

fine opinion persuade me that it has not locked the names of litigants behind closed doors

to the disservice of that transparency that alone earns us public confidence and trust.

17