Changes to Southern District of Indiana Local Rules

Effective January 1, 2015, the United States District Court for the Southern District of Indiana adopted a number of amendments to the Local Rules (see the red-lined changes here). One major change relates to Local Rule 5-11 – Filing Papers Under Seal, which was deleted in its entirety and replaced with a new Local Rule.

Under the new 5-11(a), a party must still file a motion requesting that the court seal the case at or before the time the party files its initial pleading. Under the old rule, if the judge later denied the motion to seal, the case was immediately unsealed. Under the new rule, “[i]f the court denies the motion, the clerk will unseal the case 14 days after service of the order, absent a Fed.R.Civ.P. 72(a) objection; motion to reconsider; or notice by a party of intent to file an interlocutory appeal.” S.D. Ind. L.R. 5-11(a) (emphasis added). Under the old rules, a party had no notice of the court’s decision until after the papers were made public, and therefore, if a party was successful in appealing the judge’s order or the judge reconsidered his or her ruling, the papers were most likely already in the public sphere (e.g., Under the new rule, a party may fully exhaust its remedies of a court’s denial of a motion to seal before the papers are made available to the public.

Under the new 5-11(c), a procedure now exists that allows parties to redact “confidential information in a document [if it] is irrelevant or immaterial to resolution of the matter at issue.” S.D. Ind. L.R. 5-11(c). In circumstances of documents redacted pursuant to Federal Rule of Civil Procedure 5.2 (e.g., birthdates, social security numbers, or account information), such documents “must not be filed under seal.” Id. However, if a party files “such a redacted document [that party] must serve an unredacted and complete version of the document upon all counsel and pro se parties.” Id. The intent of this particular rule change is to provide explicit guidance to counsel that the limited resources of the court should not be spent reviewing motions to seal documents that are only seeking to protect information that is not germane to the case or issue.

If you have questions on this issue or any other litigation issue and how it may affect your business, please contact us.

Document Retention and Destruction in Indiana – Learning CDs and Manual Available

Bowers Harrison, LLP attorney Mark Miller presented a seminar entitled “Document Retention and Destruction in Indiana” on April 30, 2014. Topics included:

• Developing Document Retention and Destruction Policies and Procedures
• Understanding Business Records
• New Technologies and Cyber Security
• Business Record Management in Anticipation of Litigation
• Real-World Applications of Business Record Policies
• Best Practices – Balancing Organizational Needs and Litigation Risks

Educational materials from this seminar are now available for purchase through Lorman Education Services.

Mark Miller to Present on Document Retention and Destruction Policies in Indiana

On April 30, 2014, Bowers Harrison, LLP attorney Mark E. Miller will give presentations on Document Retention and Destruction Policies in Indiana.  Program highlights include:

  • Developing Document Retention and Destruction Policies and Procedures
  • Understanding Business Records
  • Indiana Legislation Applicable to Records Management
  • New Technologies
  • Cyber Security – Protecting Your Company Data
  • Business Record Management in Anticipation of Litigation
  • Real-World Application of Business Record Policies – What Happens When the Fingers Start Pointing
  • Best Practices – Balancing Organizational Needs and Litigation Risks

Please contact Bowers Harrison for a 20% discount off the registration fee.


Indiana’s Expungement Law

In Indiana this year, a new law was passed that makes it easier for individuals, who were arrested or convicted of certain crimes, to restrict the access to those records.  Also, for employers, the law changes the types of questions it may ask of applicants, making it illegal to discriminate against any individual on the basis of a criminal conviction or arrest that has been sealed or expunged.

What is ‘Expungement’ in Indiana?

In Indiana, ‘expungement’ can either mean the court-ordered destruction or sealing of records.  If the records are destroyed, they are no longer available to the general public or any state or federal agency. If the records are sealed, access to them is restricted and may only be released by court order or to a law enforcement officer acting in the course of his or her official duty.

What is the Effect of Indiana’s Expungement Law on Individuals?

Previously, Indiana only allowed criminal records to be expunged if (1) a person was arrested but not charged with a crime, or (2) if a person was arrested and criminal charges were filed but those charges were later dropped because of (a) mistaken identity, (b) no offense was in fact committed, or (c) there was an absence of probable cause. 

With the new law, an individual may have his or her criminal records expunged if 1) there are no charges pending against the individual, 2) his or her driver’s license is not suspended, and 3) he or she has not been convicted of a criminal offense for a certain period of years.  The period of years depends on the level of criminal offense:

  • For an eligible misdemeanor or a Class D felony that was reduced to a misdemeanor, criminal records of that conviction may be expunged after five years from the date of conviction;
  • For a less serious Class D felony, records may be expunged after 8 years from the completion of the sentence, including probation; and
  • For certain serious felony convictions, records may be expunged after 10 years from the completion of the sentence, including any supervised release.

What is the Effect of Indiana’s Expungement Law on Employers?

Employers must now be mindful of the fact that an applicant may have had his or her criminal record expunged and may not use that information against the applicant. While employers may still ask about non-expunged criminal history, the law proscribes the type of question that an employer may ask

Take Note

For individuals, in Indiana, an individual may only file one petition for expungement in his or her lifetime.  The only exception to that rule is if your petition for expungement is denied, you may file another petition after 3 years. For employers, employers may be liable for damages, if they reject an applicant based upon an expunged criminal record.

If you have questions on this issue or any other criminal law issue, please contact us.

Indiana Supreme Court Upholds Indiana’s Cap on Punitive Damages

The Indiana Supreme Court has upheld Indiana’s statutory limit on the amount of punitive damages that may be awarded in a civil action. The Court’s ruling overturned a Marion County Superior Court’s decision that found the statutory punitive damage limit violated the Indiana Constitution.  Punitive damages, sometimes known as “exemplary damages,” are “intended to punish and thereby deter blameworthy conduct” and can be ordered on top of compensatory damages that cover actual losses or costs.

Indiana’s statute on punitive damages places a limit on the amount of punitive damages that may be awarded in a civil action: “A punitive damage award may not be more than the greater of: three (3) times the amount of compensatory damages awarded in the action or $50,000.”  I.C. § 34-51-3-4. The statute proscribes that if a jury awards punitive damages in excess of that amount, the “court shall reduce the punitive damage award to [reflect Ind. Code Section 34-51-3-4].” Further, the statute states that 25% of the reduced punitive damage award goes to the injured party, while 75% of the reduced punitive award goes to the “Violent Crime Victims Compensation Fund.”  I.C. § 34-51-3-6.

In State of Indiana v. John Doe, No. 49S00-1201-CT-14, a jury awarded John Doe $150,000 in punitive damages as part of a judgment in his lawsuit against Father Jonathan Lovill Stewart for childhood sexual abuse.  The Defendant, Stewart, moved to reduce the punitive damages pursuant to the statutory punitive damage limit.  The trial court denied the motion holding that those statutes violated two provisions of the Indiana Constitution: Article 3, Section 1, which requires the separation of governmental powers, and Article 1, Section 20, which guarantees the right to trial by jury in civil case.

In determining Indiana’s statutory limits on punitive damages does not violate the Indiana Constitution’s Right to Jury Trial, the Court cited to its prior decisions upholding statutory caps on compensatory damages in medical malpractice cases and the constitutionality of the allocation provision of the punitive damages statute.  See Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585, 602 (Ind. 1980); see Cheatham v. Pohle, 789 N.E.2d 467, 473 (Ind. 2003).

The Court also held that the judiciary’s power in determining the punitive damages award in civil litigation rests in applying any limits enacted by the legislative branch.  Just “as the legislative branch has broad power to limit common law causes of action,” it has the power to limit remedies of those causes of action, “including punitive damages.”  See Cheatham, 789 N.E.2d at 471.

The Court therefore reversed the trial court’s ruling and remanded the case with the instructions to (1) grant the Defendant’s motion to reduce the punitive damages to the statutory maximum and (2) order that 75% of the reduced punitive damage award be deposited into the Violent Crime Victim Compensation Fund.


If you have any questions on this issue or other litigation issues, place contact us.