By Steve Badger
Benesch law firm

A decision by the Indiana Supreme Court leaves news organizations and journalists without guidance on how to appeal subpoenas compelling them to disclose notes and other unpublished information.

In a closely watched case involving The Indianapolis Star and its effort to resist identifying an anonymous poster to its website, the state high court reinstated a prior Court of Appeals decision.

That ruling gives trial court judges the right to approve or deny the immediate appeal of such orders according to their whim.

The Indianapolis Star requested and received amicus support from the HSPA Foundation for an appeal of a trial court ruling ordering the newspaper to turn over identifying information about an anonymous commenter to a plaintiff in a libel lawsuit.

The Star isn’t the defendant in the case.

Plaintiff Jeffery Miller sought the name of a poster who commented on Miller’s departure from Junior Achievement, whom Miller is suing in a libel lawsuit.

Timing is everything in litigation, particularly when it comes to an appeal of a court order to disclose notes, outtakes, sources and the like.

An appeal in the normal course of litigation – that is, after trial – is too late for news organizations or journalists facing a court-ordered deadline to produce newsgathering material.

Unless the news organization or journalist is prepared to face the potentially harsh consequences of defiance of the order, an appeal must be initiated immediately.

If the trial court permits the appeal and stays its order, the news organization or journalist may proceed with an appeal.

The difficulty arises, however, when trial court judges refuse to permit the immediate appeal of their orders.

Judges have wide discretion in granting permission for what is known as an “interlocutory appeal.” They may be unwilling to delay trial to allow appeals of their own orders.

The Indiana Supreme Court’s recent ruling rejected a request by The Indianapolis Star that the court review a Marion County Superior Court order compelling the paper to produce information identifying the anonymous commenter who posted an allegedly defamatory statement on The Star’s website.

On Sept. 27, one day after hearing oral arguments in The Indianapolis Star’s appeal, the Supreme Court changed course and decided not to render a decision in the case.

The order stated, without further explanation, that the high court “determined that it should not assume jurisdiction over this appeal.”

Justice Loretta Rush dissented from the order.

The Supreme Court’s order expressly reinstated a December 2012 decision by the Indiana Court of Appeals dismissing The Star’s appeal because the newspaper did not receive the trial court’s permission for an immediate appeal.

The Star and the HSPA Foundation, as amicus curiae, had argued, among other things, that a right to an immediate appeal existed under the constitutional protections for free speech and free press and the Indiana appellate rules.

The Supreme Court’s order leaves intact an Indiana Court of Appeals original decision from February 2012, In re Indianapolis Newspapers Inc., adopting a multi-factored test for the protection of anonymous posts.

The Court of Appeals adopted a highly protective standard that requires, among other things:

• Efforts to notify the anonymous commenter of a subpoena

• Proof that the person seeking to identify the anonymous poster has a good claim for proving defamation

• A balancing of free speech interests against the claimant’s need for the information.

The Marion County judge determined in summer 2012 that plaintiff Miller had satisfied the above tests.

The Indianapolis Star filed a second appeal in the case arguing that the trial court misapplied the standard adopted in the Court of Appeals’ first decision.

Steve Badger, an attorney with Benesch law firm in Indianapolis, represents clients in commercial business litigation matters, arbitrations and appeals.