Protective order sought in law examiners case

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.