Attorney general, adult websites clash in age verification lawsuit

Eleven adult content companies and a trade organization say the state of Indiana’s discovery requests in an age verification lawsuit are “invasive” and “harassing”—prompting Attorney General Todd Rokita’s office to dismiss the allegations of overreach as “outlandish.”

The dozen plaintiffs, which include Pornhub’s parent company Aylo, want a federal judge to pause discovery until the U.S. Supreme Court weighs in on a similar case, or to extend deadlines several months. Rokita’s team wants to keep moving forward.

Indiana lawmakers approved Senate Enrolled Act 17, requiring pornography websites to verify user ages, in March. They hoped to keep children from accessing pornography, but the companies said it would be costly to implement and violate First Amendment and privacy rights.

A federal judge blocked enforcement in June before its intended July effectiveness date, but an appeals court rolled back the preliminary injunction in August.

The parties have already agreed to delay deadlines by two months. Magistrate Judge Mario Garcia approved that last month.

Discovery spat

Discovery, when the parties in a lawsuit exchange information, is set to close in late February after the two-month extension.

In an October filing, the plaintiffs said they’d proposed a timeline with the understanding that discovery would be “narrow and simple.” They accused Indiana of making 588 requests and interrogatories, and of asking each plaintiff for depositions on 115 topics.

“The Attorney General is seeking to rummage through some of the most sensitive parts of their business as the price for protecting their First Amendment rights and those of adult Hoosiers,” they added.

The plaintiffs asked the judge to stay proceedings, positing that the Supreme Court could resolve the disputes over discovery, the pause would save both parties “significant time and resources” on discovery and that the break wouldn’t hurt Indiana’s chances in court.

State’s response

Indiana struck back in a filing last week, countering that its discovery efforts were reasonable and relevant.

“Now that discovery is underway, the Pornographers cry foul and run to this Court to seek a discovery stay,” the filing said.

The state claimed the plaintiffs—dubbed “the Pornographers” throughout the 19-page memorandum—had inflated the number of requests.

State attorneys recounted issuing a set of 42 requests for production of documents to Aylo Premium and Aylo Freesites, noting that the two entities share one director and filed a single plaintiff-related declaration earlier in the case.

“The Pornographers now count these as ’84 requests,’ … simply because the requests were issued to two parties and the Pornographers have chosen to have those entities respond individually,” they wrote.

It added that the parties have only met once, and could still reach agreement on the discovery disputes, in contrast to the plaintiff’s suggestion of impasse. The state said it was willing to narrow or otherwise negotiate the scope of responses.

Second, the state argued that the plaintiffs hadn’t established good cause to stay discovery because the Supreme Court’s decision is “unlikely” to clarify things.

“The stay the Pornographers seek would simply mean that, eight months from now when the Supreme Court issues a decision in Paxton, the parties will pick up the discovery process where they left off, with none of their potential disputes narrowed and no progress made in this important case,” the state said.

Third, the state said a stay actually would hurt it. If noted that, after the Supreme Court’s decision, the appeals court could let the preliminary injunction go back into effect until the Hoosier case is resolved.

“In that situation, it would matter a great deal to Indiana if the parties were eight months further along in discovery … versus only beginning to meet and confer about outstanding discovery requests,” the attorneys wrote.

The state said it cares because the lawsuit “threatens enforcement of a duly enacted state law” directed by a compelling interest in protecting children from online pornography.

The Indiana Capital Chronicle is an independent, nonprofit news organization that covers state government, policy and elections.