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Appellate court upholds gag on discovery documents

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Appellate court upholds gag on discovery documents05/02/95 INDIANA--Protective orders prohibiting disclosure of discovery materials not submitted at trial do not…

Appellate court upholds gag on discovery documents

05/02/95

INDIANA–Protective orders prohibiting disclosure of discovery materials not submitted at trial do not violate the First Amendment, even when third parties obtained the information prior to the protective orders, according to a mid-April decision by the Court of Appeals for the Third District of Indiana in Indianapolis.

Citing a 1984 U.S. Supreme Court decision, Seattle Times Co. v. Rhinehart, the appeals court said protective orders prohibiting disclosure of discovery materials do not violate the First Amendment so long as the issuing court finds “good cause” for the order, the court limits the prohibition to the pre-trial civil-discovery context, and the order does not prohibit disclosure of information learned from other sources. The majority concluded that the Superior Court’s order met all three requirements.

The City of Hammond sought in early April 1994 to condemn property owned by the Great Lakes Inland Marina to create a public right-of-way to the Hammond Marina on Lake Michigan. The Superior Court for Lake County in Hammond ordered Lake Michigan Charters Ltd., which was not a party to the condemnation proceeding, to submit documents relevant to the case. LMC submitted the documents in mid- July in a sealed envelope marked “Privileged documents for in camera review.”

At the Superior Court judge’s instructions, the judge’s secretary made the documents available in late July to a staff writer for The (Munster) Times who was investigating attempts to buy the Hammond Marina as a site for riverboat gambling. At the time the envelope was no longer physically sealed, and the writer photocopied the LMC documents the following day with the secretary’s permission. The newspaper says it believes LMC is seeking a license to operate a riverboat casino.

Characterizing the envelope’s contents as “sealed confidential documents” and the writer’s examination of them as unauthorized, the Superior Court ordered The Times in mid-August not to release the information. The Times appealed. The newspaper says that the judge had not previously sealed the documents.

The appeals court ruled that LMC’s privacy interests in the documents, combined with the state’s interest in the integrity of the judicial system, outweighed The Times’ First Amendment rights.

According to the dissent, the Rhinehart decision still requires courts to determine whether a pre-trial protective order furthers a substantial government interest and is the least restrictive alternative.

The Times has not decided whether to appeal. (Howard Publications Inc. v. Lake Michigan Charters Ltd.; Media Counsel: Frederick Eichhorn, Hammond, Ind.)