WHOLE WOMAN'S HEALTH ALLIANCE et al v. HILL et al

Filing 247

ORDER - OVERRULING NON-PARTYS OBJECTION TO MAGISTRATE JUDGES ORDER ON MOTION TO QUASH re 229 ; Non-Party Marion Superior Courts Objection to the Magistrate Judges Order on Motion to Quash is OVERRULED. The request to certify the question of whether Indiana Code § 16-34-4-2(h) protects the spreadsheet is DENIED. Signed by Judge Sarah Evans Barker on 1/22/2020. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE, )
ALL-OPTIONS, INC.,
)
JEFFREY GLAZER M.D.,
)
)
Plaintiffs,
)
)
v.
)
)
CURTIS T. HILL, JR. Attorney General of the )
State of Indiana, in his official capacity,
)
KRISTINA BOX Commissioner of the Indiana )
State Department of Health, in her official
)
capacity,
)
JOHN STROBEL M.D., President of the
)
Indiana Medical Licensing Board of Indiana, )
in his official capacity,
)
KENNETH P. COTTER St. Joseph County
)
Prosecutor, in his official capacity and as
)
representative of a class of all Indiana
)
prosecuting attorneys with authority to
)
prosecute felony and misdemeanor offenses,
)
)
Defendants.
)
)
)
INDIANA DEPARTMENT OF
)
CORRECTION,
Marion Superior Court,
)
)
Interested Parties.
)

No. 1:18-cv-01904-SEB-MJD

ORDER OVERRULING NON-PARTY’S OBJECTION TO MAGISTRATE
JUDGE’S ORDER ON MOTION TO QUASH
This matter comes before the Court on Non-Party Marion Superior Court’s
(“MCS”) Objection to the Magistrate Judge’s November 18, 2019 Order denying the
Non-Party’s Motion to Quash [Dkt. 229]. MCS argues that the Magistrate Judge’s denial
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of its motion is clearly erroneous and contrary to law pursuant to Indiana Code § 16-342-4(h). For the reasons detailed below, MCS’s Objection is OVERRULED.
Background
On November 4, 2019, MCS moved to quash two requests contained in a nonparty subpoena issued by Plaintiffs, pursuant to Federal Rule of Civil Procedure
45(d)(3)(a)(iii). 1 [Dkt. 213]. The requests sought compiled information concerning cases
in which minors sought judicial bypass of Indiana’s requirement that minors secure the
written consent of a parent or guardian before obtaining an abortion. Plaintiffs
specifically requested the following information:
Documents sufficient to identify: (i) the number of petitions filed in Marion
County, Indiana, under I.C. 16-34-2-4, (ii) the disposition of those petitions, (iii)
whether the petitioner was represented by counsel, (iv) the length of time that
elapsed between the filing of the petition and the disposition of the petition, and
(v) the age of the petitioner.
Documents sufficient to identify: (i) the number of petitions filed in Marion
County, Indiana, under Indiana Code § 16-34-2-4 by minors subject to Indiana
Code § 16-34-1-10, (ii) the disposition of those petitions, (iii) whether the
petitioner was represented by counsel, (iv) the length of time that elapsed between
the filing of the petition and the disposition of the petition, and (v) the age of the
petitioner.
Plaintiffs confirmed that they were seeking only compiled informational records
and not actual court files, which they concede are protected by Indiana Code § 16-34-24(h). Plaintiffs also verified that any identifying information contained in the requested
documents should be redacted to protect the minors’ privacy. MCS indicated that it

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Federal Rule of Civil Procedure 45(d)(3)(a)(iii) obligates the district court to quash a subpoena
that “requires disclosure of privileged or other matter, if no exception or waiver applies.”
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possessed a spreadsheet of compiled data responsive to Plaintiffs’ requests. 2 Nonetheless,
MCS asserted that it was prohibited from disclosing the spreadsheet pursuant to Indiana
Code § 16-34-2-4(h), which provides that “[a]ll records of the juvenile court and of the
supreme court or the court of appeals that are made as a result of [judicial bypass]
proceedings . . . are confidential.” Neither “records” nor “result of proceedings” are
defined. MCS argued that the spreadsheet contained information compiled “as a
consequence of court proceedings” conducted under Indiana Code § 16-34-2-4, and thus
the spreadsheet qualified as a confidential record prohibited from disclosure. MCS
invoked Administrate Rule 9 of the Indiana Court Rules, which provides that “compiled
information” is “information that is derived from . . . court record[s],” as further support.
Plaintiffs disagreed with MCS’s statutory interpretation, countering that § 16-342-4(h) was intended to protect the “identity and privacy of a minor seeking judicial
bypass,” not “bulk data . . . stripped of any identifying details.” Invoking Indiana Code §
31-39-1-1, which governs the confidential of nearly all juvenile records except those
covered by § 16-34-2-4(h), Plaintiffs asserted that “records . . . made as a result of
proceedings” can reasonably be read as including “chronological case summaries, index
entries, summonses, warrants, petitions, orders, motions, and decrees.” MCS rejected
Plaintiffs’ invocation of § 31-39-1-1, noting that this general statute expressly does not
apply to § 16-34-2-4(h).

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We note that the record indicates that MCS had the disputed spreadsheet in its possession prior
to Plaintiffs’ subpoena, and thus it does not appear that MCS would face any undue burden in
compiling the requested information (an argument MCS has not raised). [Dkt. 221, at 2].
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On MCS’s Motion to Quash, Magistrate Judge Dinsmore observed that:
It is not entirely clear that Ind. Code § 16-34-2-4(h) applies to the information
sought in the Requests or, specifically, to the spreadsheet MSC has identified as
responsive to the Requests. While in a very technical sense the spreadsheet could
be considered a record that was “made as a result” of the court proceedings to
which it relates, that is a somewhat tortured reading of the language of the statute.
[Dkt. 225, at 2]. Assuming that the statute did apply, Magistrate Judge Dinsmore
held that Indiana law did not prohibit court-ordered disclosure of the spreadsheet. He
specifically relied on a provision in Indiana’s Access to Public Records Act (“APRA”),
Indiana Code § 5-14-3-4(a), which states that public records “declared confidential by
state statute” “may not be disclosed by a public agency, unless access to the records . . . is
ordered by a court under the rules of discovery.” Because Plaintiffs only sought
statistical, anonymized information, Magistrate Judge Dinsmore concluded that the
purpose of Indiana Code § 16-34-2-4(h) would not be subverted by an order compelling
MSC to produce the spreadsheet. Accordingly, he ordered production of the spreadsheet,
stricken of any identifying information. [Id. at 3].
On December 2, 2019, MSC timely objected to Magistrate Judge Dinsmore’s
ruling. [Dkt. 229].
Standard of Review
Rule 72(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that
the district court “must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” A finding is clearly erroneous when
the reviewing court is “left with the definite and firm conviction that a mistake has been
committed.” Brown v. Plata, 563 U.S. 493, 513 (2011). This is an “extremely deferential
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standard.” Elder Care Providers of Indiana, Inc. v. Home Instead, Inc., No. 1:14-CV01894-SEB-MJD, 2017 WL 4250107, at *2 (S.D. Ind. Sept. 26, 2017); see also Pinkston
v. Madry, 440 F.3d 879, 888 (7th Cir. 2006).
Analysis
MCS argues that Magistrate Judge Dinsmore committed clear error when he held
that APRA provides an exception to § 16-34-2-4(h), contending that APRA is “plainly
inapplicable.” According to MCS, APRA permits members of the public to inspect and
copy a public agency’s records; it is not a tool used by litigants during discovery. The
irrelevancy of APRA is evidenced by the fact that Plaintiffs never even invoked it in their
opposition to MCS’s Motion to Quash, argues MCS.
And, in the event the APRA was properly invoked, MCS objects to Magistrate
Judge Dinsmore’s application thereof. According to MCS, the provision of APRA on
which Judge Dinsmore relied does not create an independent basis for a court to order the
discovery of otherwise protected materials. Rather, this provision permits a court to order
disclosure when the rules of discovery so allow. [Dkt. 229, at 16] (citing Bd. Of Trustees
of Pub. Employees’ Ret. Fund of Ind. v. Morley, 580 N.E. 2d 371, 374 (Ind. Ct. App.
1991). Thus, says MSC, Judge Dinsmore should have evaluated whether the spreadsheet
was discoverable pursuant to the Federal Rules of Civil Procedure in order to invoke
Indiana Code § 5-14-3-4(a)—bringing the issue full circle to the parties’ initial inquiry of
whether the spreadsheet is prohibited from disclosure pursuant to § 16-34-2-4(h).
Accordingly, MCS contends that the question persists as to whether the spreadsheet is
protected under Indiana Code § 16-34-2-4(h).
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Upon careful review, we hold that Magistrate Judge Dinsmore’s decision to deny
MCS’s Motion to Quash was not clearly erroneous or contrary to law, regardless of
whether APRA was misapplied as MCS contests.
In its objection to Magistrate Judge Dinsmore’s order, MCS continues its statutory
analysis of § 16-34-2-4(h). To show the heightened protection afforded to records
governed by this statute, MCS now compares § 16-34-2-4(h) with the general juvenile
records confidentiality statute, Indiana Code § 31-39-1-1. As MCS explains, the latter
statute provides several exceptions to the general rule that juvenile records are
confidential and inaccessible. For example:
[T]he juvenile court must grant access to a person involved “in a legitimate
research activity” if the person demonstrates, among other things, “the safeguards
the person will take to protect the identity of the person whose records the
researcher will review;” that “the proposed safeguards are adequate to protect the
identity of each person whose records the researcher will review;” and there is an
agreement between the court and researcher specifying the terms of the
researcher’s use of the records. Ind. Code § 31-39-2-11(1)(D), -11(2), -11(4).
[Dkt. 229, at 2]. As MCS correctly notes, there are no such exceptions to § 16-342-4(a), and the general confidentiality statute expressly states that it does not apply to
judicial bypass proceedings for minors seeking abortions without parental consent. Ind.
Code. § 31-39-1-1(a)(2). We thus do not disagree with MCS’s assertions that the
confidentiality of all “records . . . made as a result of [judicial bypass] proceedings” must
be protected without exception. However, we are not persuaded that the spreadsheet
clearly falls within the term “records” as used in this statute. As Magistrate Judge
Dinsmore observed, MCS’s averment that the spreadsheet—containing only anonymized,
statistical information and completely vacant of any identifying details about the
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underlying case proceedings—qualified as a “record that was ‘made as a result’ of the
court proceedings” was “somewhat of a tortured reading of the language of the statute.”
[Dkt. 225, at 2].
Both MCS and Plaintiffs acknowledge that the purpose of the disputed statute is to
ensure that judicial bypass proceedings are “completed with anonymity.” [Dkt. 221, at 3;
Dkt. 229, at 3-4] (quoting Bellotti v. Baird, 443 U.S. 622, 644 (1979). While the phrase
found in the disputed statutory provision (“records . . . made as a result of [judicial
bypass] court proceedings”) was left undefined, Plaintiffs’ reading of this provision to
encompass records made in the course of judicial bypass proceedings, such as the types
of records delineated in the general juvenile confidentiality statute, is consistent with the
statute’s purpose. It is true that the provisions of the general confidentiality statute do not
extend to § 16-34-2-4, but MCS’s objection shows that the sections are largely
distinguishable by the omission of exceptions in § 16-34-2-4; the statute simply does not
reflect an intent on behalf of the legislature to broaden what is deemed a record
emanating from a proceeding to include the anonymous data requested here by Plaintiffs.
This interpretation aligns with Judge Dinsmore’s conclusion:
The anonymized information contained in the spreadsheet is not information that
the confidentiality provision of the statute is intended to protect. Plaintiffs do not
seek any identifying information regarding the proceedings to which the
spreadsheet relates; rather, they seek statistical information about the proceedings
as a whole. Permitting this information to be released to Plaintiffs will not violate
the privacy of the participants in the proceedings and therefore does not run afoul
of the confidentiality statute’s purpose.
[Dkt. 225, at 2]. Disclosure of the spreadsheet would not frustrate the ability of
Indiana courts to ensure that judicial bypass proceedings are “completed with
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anonymity.” Magistrate Judge Dinsmore reasonably inferred that § 16-34-2-4(h) does not
protect documents such as the spreadsheet. Consequently, we are left without a “definite
and firm conviction” that a mistake was committed when Magistrate Judge Dinsmore
compelled discovery of the spreadsheet. 3
Finally, we reject MCS’s request that we certify this issue to the Indiana Supreme
Court. Certification is appropriate only when a question is “outcome determinative of the
case.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001). MCS
expressly concedes that the question here is not “outcome determinative of the entire
case.” But, MSC states, “it is determinative of this particular discovery dispute” and
argues that we are not precluded from certifying a question that, while “not determinative
of the entire case, is determinative of a particular dispute between the parties.” [Dkt. 237,
at 8] (citing Robertson v. Med. Assur. Co., No. 2:13-CV-107 JD, 2014 WL 2557236, at
*6 (N.D. Ind. June 5, 2014), certified question accepted, 11 N.E.3d 913 (Ind. 2014). The
case cited as support for MCS’s argument, however, is clearly distinguishable. In
Robertson, the Northern District of Indiana court certified a question that would have
disposed of an entire claim, even though another claim remained. Here, no claims would
be disposed of through certification, and MCS has cited no case where a court granted

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MCS also asserts that Magistrate Dinsmore’s ruling will set a dangerous precedent that permits
parties to seek so much information about a pregnant minor (such as information about her
school, her town, whether she is in foster care, and more) that her identity will become
discoverable. We are unpersuaded by this “parade of horribles,” which “bears no resemblance”
to the information requested here. The production of the spreadsheet in this case will not prevent
other courts from quashing discovery requests, such as those ones described by MCS, where a
particular request may infringe on a minor’s privacy.
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certification for a question that would impact an isolated discovery dispute. Accordingly,
we deny MCS’s request for certification of this issue to the Indiana Supreme Court.
CONCLUSION
Non-Party Marion Superior Court’s Objection to the Magistrate Judge’s Order on
Motion to Quash is OVERRULED. The request to certify the question of whether
Indiana Code § 16-34-4-2(h) protects the spreadsheet is DENIED.

Date:

1/22/2020

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Amanda Lauren Allen
sLAWYERING PROJECT
[e-mail]
Christopher Michael Anderson
INDIANA ATTORNEY GENERAL
[e-mail]
David Patrick Brown
LAWYERING PROJECT
[e-mail]
Athanasia Charmani
SKADDEN ARPS SLATE MEAGHER & FLOM
[e-mail]
Paul M. Eckles
ATTORNEY AT LAW
[e-mail]
Benjamin C. Ellis
INDIANA ATTORNEY GENERAL
[e-mail]
Thomas M. Fisher
INDIANA ATTORNEY GENERAL
[e-mail]
James A. Heilpern
SCHAERR JAFFE LLP
[e-mail]
Bradley H. Honigman
ATTORNEY AT LAW
[e-mail]
Michelle Honor
ATTORNEY AT LAW
[e-mail]

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Kian J. Hudson
INDIANA ATTORNEY GENERAL
[e-mail]
Kathrine D. Jack
LAW OFFICE OF KATHRINE JACK
[e-mail]
Erik S. Jaffe
SCHAERR JAFFE LLP
[e-mail]
Mollie M. Kornreich
[e-mail]
Jennifer Elizabeth Lemmon
INDIANA ATTORNEY GENERAL
[e-mail]
Richard G. McDermott
OFFICE OF CORPORATION COUNSEL
[e-mail]
Diana Lynn Moers Davis
INDIANA ATTORNEY GENERAL
[e-mail]
Derek R. Molter
ICE MILLER LLP (Indianapolis)
[e-mail]
Julia Catherine Payne
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Morgan Petkovich
ATTORNEY AT LAW
Four Times Square, Fl 34
New York, NY 10036
Michael Leo Pomeranz
ATTORNEY AT LAW
[e-mail]
Michael M. Powell
ATTORNEY AT LAW
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[e-mail]
Joshua J. Prince
SCHAERR JAFFE LLP
[e-mail]
Juanluis Rodriguez
LAWYERING PROJECT
[e-mail]
Robert Austin Rowlett
INDIANA ATTORNEY GENERAL
[e-mail]
Gene C. Schaerr
SCHAERR JAFFE LLP
[e-mail]
Stephen S. Schwartz
SCHAERR JAFFE LLP
[e-mail]
Rupali Sharma
LAWYERING PROJECT
[e-mail]
Erin A. Simmons
ATTORNEY AT LAW
[e-mail]
Dipti Singh
LAWYERING PROJECT
[e-mail]
Mollie Ann Slinker
INDIANA ATTORNEY GENERAL
[e-mail]
Kelly Suzanne Thompson
INDIANA ATTORNEY GENERAL
[e-mail]
Stephanie Toti
LAWYERING PROJECT
[e-mail]

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