The Indiana Court of Appeals issued a 20-page order Dec. 7 outlining why Judges Edward Najam and Elaine Brown dismissed The Indianapolis Star’s latest appeal against having to release the name of an online commenter to the plaintiff in a lawsuit.

Jeffrey Miller, former CEO of Junior Achievement of Indiana, sued multiple parties for defamation and sought to add people who made anonymous comments on news organization websites that ran stories about Miller and Junior Achievement.

Marion Superior Judge S.K. Reid ordered several news outlets, including The Star, to release the identity of online commenters. The newspaper fought the order, and the Court of Appeals in February reversed. The case went back to Reid with a requirement to apply a modified version of the Dendrite test to determine whether Miller satisfied the requirements for obtaining the commenter’s identity.

The trial court again ordered the newspaper to disclose the commenter's identity in October, leading The Star to appeal again. After initially blocking Reid’s order in November, the appellate court held a hearing Nov. 20 on the matter, leading to two of the three judges deciding the court does not have jurisdiction to consider the trial court’s discovery order. The newspaper argued that the discovery order is severable as a final, appealable judgment, and that based on Article VII, Section 6 of the Indiana Constitution, the discovery order must be “deemed final by law.”

“We conclude that The Star’s argument that the Discovery Order is severable as a final judgment is a reprise of the ‘distinct and separate branch doctrine,’ which our Supreme Court repudiated in Berry v. Hoffman, 643 N.E.2d 327, 329 (Ind. 1994), a doctrine which has been superseded by the requirement that the trial court ‘direct the entry of final judgment’ under Trial Rule 54(B),” the order says. “Thus the Discovery Order cannot be considered a final, appealable judgment under Appellate Rule 2(H)(1) because it did not dispose of all claims as to all parties and cannot be considered a final, appealable judgment under Appellate Rule 2(H)(2) because the trial court did not expressly determine that there is not just reason for the delay and direct the entry of the Discover Order as a final judgment as to fewer than all the claims or parties under Trial Rule 54(B).”

Judge Rudy Pyle dissented, writing, “The majority ably argues that Indiana Trial Rule 54(b) and the rule announced in Berry … permit shoehorning The Star into this litigation as a party. However, I submit that the shoe does not fit.”

He argued that due process interests should trump concerns about expediting litigation.

“It seems unreasonable to expect a non-party to seek appellate review using a Trial Rule designed for parties,” he wrote. “Preventing The Star from seeking appellate review of a new court order seems to change the rules of the road.”

The stay ordered by the court remains in effect until Friday, after which it will automatically expire.