# Howard Publications, Inc. v. Lake Michigan Charters, Ltd.

> Indiana Court of Appeals · April 18, 1995 · 649 N.E.2d 129

URL: https://www.frixlaw.com/law-library/cases/9735324

## Case

- **Full name:** HOWARD PUBLICATIONS, INC., D/B/A the Times, Appellant-Intervenor, v. LAKE MICHIGAN CHARTERS, LTD., Intervenor-Objecting Party. CITY OF HAMMOND, INDIANA, a Municipal Corporation, Plaintiff Below, v. GREAT LAKES INLAND MARINA, INC., Marina Entertainment Complex, Inc., Mercantile National Bank of Indiana, as Trustee Under Trust Agreement No. 4594, Dated January 9, 1985; Mercantile National Bank of Indiana, as Trustee Under Trust Agreement No. 4970, Dated May 28, 1987; AXG Corp. Marianna Potter; Auditor of Lake County, Indiana; And Treasurer of Lake County, Indiana, Defendants Below
- **Court:** Indiana Court of Appeals
- **Decided:** April 18, 1995
- **Citations:** 649 N.E.2d 129; 1995 Ind. App. LEXIS 425; 1995 WL 225565
- **Precedential status:** Published
- **Opinion:** Dissent by Staton
- **Judges:** Garrard, Rucker, Staton
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STATON, Judge,
dissenting.
The majority adopts the language of the Court's decision in Seattle Times, Co. v. Rhinehart (1984), 467 U.S. 20 , 104 S.Ct. 2199 , by determining that a protective order will not offend the First Amendment of the Constitution if the following elements are met: there is a showing of good cause as required by Ind.Trial Rule 26(c), which is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources. See op. at 183 (citing Seattle Times, supra, at 37 , 104 S.Ct. at 2209-10 ). Thus, the majority eliminates any First Amendment inquiry. The analysis of the Majority is incomplete.
In Seattle Times, the Court recognized that pretrial protective orders, designed to limit the dissemination of information gained through the civil discovery process, are subject to serutiny under the First Amendment. Seattle Times, supra, at 37 , 104 S.Ct. at 2209 (Brennan, J. concurring). Before approving a protective order, a court must consider:
whether the practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression and whether the limitation of the First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved.
Id. at 32 and 37, 104 S.Ct. at 2207 and 2210.
The majority ignores the Court's directive in Seattle Times and essentially concludes that if the party requesting the suppression of pretrial discovery material makes a sufficient showing of good cause as required by Ind.Trial Rule 26(c), no First Amendment inquiry is necessary. See op. at 183 (citing Seattle Times, supro, at 37, 104 S.Ct. at 2209-10 ).
However, the majority does not fully examine whether the third party, LMC, made a showing of good cause and summarily concludes "(ilt appears that good cause was established and, The Times does not challenge cause." Op. at 188. This conclusory statement fails to analyze whether in fact LMC made this critical showing of good cause which would justify the issuance of the protective order.
Because the majority relies upon the showing of good cause to justify the issuance of a protective order and to satisfy the First Amendment, LMC must establish good cause before the protective order may be entered. Such has not been established here. I would therefore recommend that this cause be remanded in order for the parties to address the issue of good cause.
For these reasons, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735324. Public record. Not legal advice.