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Protective order sought in law examiners case

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The Indiana State Board of Law Examiners wants a U.S. District judge to issue a protective order stopping the ACLU of Indiana from obtaining what the agency describes as confidential information about bar applicants' answers to questions.

This is the latest litigation in a potential class action case of Jane Doe, et al. v. The Individual Members of the Indiana State Board of Law Examiners, No. 1:09-CV-842, which charges that the bar examination application violates the Americans with Disabilities Act because of certain mental health questions. The plaintiffs are an Indiana woman admitted in Illinois who wants to practice in her home state, as well as the student ACLU chapter at Indiana University School of Law - Indianapolis where individuals could be impacted by the controversial question.

Laura Bowker, deputy attorney general, filed the protective order motion Monday on grounds that disputed discovery requests from the civil liberties group were off-limits. Two reasons are cited: the information is deemed confidential by Rule 19 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys; and the request would be too difficult for the five-person office to compile even if it could.

Applicants for any given year total about 1,000, according to the BLE's brief. But wading through those applications by hand to review the questions and responses would be too burdensome for the state agency, it argues. While the ACLU of Indiana had originally sought answers from applications between 2006 and 2009, it has since indicated to the court and in its own brief that the request could be curtailed to only February to July 2009.

In his brief opposing the protective order filed Tuesday, ACLU of Indiana's legal counsel Ken Falk said this information is critical to the plaintiffs' class certification and overall case, and he poked holes in the BLE's argument that the data requested isn't available.

"The argument appears to be that although the questions challenged in this case are considered essential by the members and will, if answered affirmatively, lead to the burden of more reporting by the applicant and perhaps an evaluation by the Judges and Lawyers Assistance Program, no record is kept of those answering the questions affirmatively, who is evaluated, and whether the persons are allowed to sit for the bar or not. This is curious."

Of the confidentiality argument, Falk said he's seeking only the numbers of applicants who answered affirmatively to certain questions, not any names or private information that could be considered confidential. Falk compared the information requested to census data, which is available in statistical format publicly but that all other individual data is confidential. He also noted the BLE distributes membership information about the demographics of those who've taken the bar exam each year.

"The only conclusion that can be drawn from this is that anonymous statistical information is not deemed to be confidential by the Board of Law Examiners," Falk wrote.

The court hasn't issued a ruling on the issue or scheduled a date for any hearing on that point. Still pending before the court are a handful of other issues, such as whether class certification will be allowed.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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