COA rules it doesn’t have jurisdiction over online comment appeal

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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which our Supreme Court repudiated in Berry v. Hoffman, 643 N.E.2d 327, 329 (Ind. 1994), a doctrine which has been superseded by the requirement that the trial court ‘direct the entry of final judgment’ under Trial Rule 54(B),” the order says.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.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.