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Angelopoulos v. Angelopoulos

Court of Appeals of Indiana

April 19, 2017

Constantinos P. Angelopoulos, Appellant-Plaintiff,
v.
Theodore P. Angelopoulos, Neptunia Inc., Transmar Corp., Didiac Establishment, Beta Steel Corp., and Top Gun Investment Corp. II, Appellees-Defendants.

         Appeal from the Porter Superior Court Trial Court Cause No. 64D05-0811-PL-10838 The Honorable Mary R. Harper, Judge

          Attorneys for Appellant L. Charles Lukmann III Harris Welsh & Lukmann Chesterton, Indiana Brian W. Welch Karl L. Mulvaney Bingham Greenebaum Doll LLP Indianapolis, Indiana

          Attorneys for Appellee Larry G. Evans Lauren K. Kroeger Hoeppner Wagner & Evans, LLP Valparaiso, Indiana David K. Herzog Brian J. Paul Anne K. Ricchiuto Faegre Baker Daniels, LLP Indianapolis, Indiana

          Mathias, Judge.

         [¶1] On remand from this court, the Porter Superior Court issued an order denying the motion of Constantinos P. Angelopoulos ("Constantinos") seeking to modify a protective order preventing him from using certain materials obtained during discovery and designated as confidential by Appellees-Defendants Beta Steel Corp. ("Beta Steel") and Top Gun Investments Corp. II ("Top Gun") under the protective order, in future litigation in Greece between Constantinos and his brother Theodore P. Angelopoulos ("Theodore"). The trial court's order also concluded that, pursuant to Administrative Rule 9, portions of Theodore's deposition testimony should be excluded from the public record. Constantinos appeals and presents two issues, which we reorder and restate as (1) whether the trial court erred under Administrative Rule 9 by excluding from the public record portions of Theodore's deposition testimony, and (2) whether the trial court abused its discretion by failing to modify the protective order.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] This is the second time this case has come before this court on appeal. As explained in the first appeal, brothers Constantinos and Theodore are Greek citizens who live in Greece.[1] Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 692 (Ind.Ct.App. 2013), trans. denied. The brothers are the sons of Panayiotis Angelopoulos ("Panayiotis"), who, along with his late brothers, founded several companies that owned the assets of the brothers' combined business activities. Id. Panayiotis died intestate in 2001, leaving a substantial estate. Id. Pursuant to Greek intestacy laws, Panayiotis's widow was entitled to two-eighths of the estate, and his two sons, Constantinos and Theodore, were each entitled to three-eighths of the estate. Id. Constantinos believed that one of his father's companies, Beta Steel, [2] belonged in his father's estate and that he was therefore entitled to three-eighths[3] of Beta Steel.[4] Id. Theodore claimed, and various Greek courts ultimately agreed, that Panayiotis had, acting inter vivos, transferred ownership of Beta Steel to Theodore.[5] Id.

         [¶4] Undeterred by his lack of success in Greece, in 2008, Constantinos filed a claim in Porter Superior Court again claiming that he had a three-eighths interest in Beta Steel under Greek inheritance laws. During the discovery process, the parties entered into an agreed protective order ("the Protective Order"), which the trial court approved of and entered. This Protective Order provided that some of the documents subject to discovery would contain ''trade secrets or other confidential research, development or commercial information described in Rule 26(C) of the Indiana Rules of Trial Procedure.'' Pursuant to the Protective Order, the parties could designate certain documents as confidential and could only be disclosed to (1) the parties, (2) the trial court, (3) U.S. and Greek counsel for the parties, (4) experts retained by the parties, (5) employees or representatives of the parties responsible for the conduct of the case, (6) court reporters and/or stenographers, as necessary, (7) a deponent or witness, and (8) such persons as the parties might stipulate. The Protective Order provided that, subject to one exception, the confidential information produced during discovery could be used "solely for the purposes of this action." Appellant's App. p. 34. The one exception was that, "[u]pon approval by the [trial] Court, Confidential Information may be used or disclosed in other judicial or investigative proceedings involving any of the parties or the location and/or disposition of assets of the estate of [Panayiotis Angelopoulos.]" Id.

         [¶5] Constantinos subsequently deposed Theodore, and Theodore's counsel designated several portions of the deposition as confidential. Id. at 695. Constantinos then filed a motion to initiate an Administrative Rule 9(H) proceeding in which he claimed that Theodore's deposition should be made public. Id. The trial court denied this motion after a hearing. Id.

         [¶6] The defendants then filed motions to dismiss Constantinos's claims. Constantinos filed a response to these motions to dismiss, designating as evidence the entirety of both of Theodore's depositions. The trial court granted the defendants' motions to dismiss, concluding that the earlier Greek court decisions should be afforded comity and that these prior decisions acted as res judicata to bar Constantinos's current claims.[6] Id. at 695. Constantinos appealed.

         [¶7] On appeal, this court affirmed the trial court's order dismissing Constantinos's complaint, holding that the prior rulings of the Greek courts conclusively established that Theodore is the sole owner of Beta Steel and that, on grounds of res judicata and comity, this matter could not be relitigated in Indiana.[7] Id. at 698. We also concluded, however, that the trial court erred by conflating the issue of confidentiality for purposes of discovery with the issue of restricting public access to materials filed in court. Id. at 701. We therefore reversed the trial court's order regarding public access to Theodore's depositions and remanded with instructions that the trial court hold a hearing at which Theodore would have to prove by clear and convincing evidence that portions of his depositions should not be open to public access pursuant to Indiana Administrative Rule 9. Id. (citing Travelers Casualty & Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008)).

         [¶8] On remand, Constantinos filed, on December 4, 2014, a motion to modify the Protective Order, seeking permission to use the discovery materials that had previously been designated as confidential in any pending or future action between Constantinos and Theodore in Greece. Thus, unlike the Administrative Rule 9 issue before this court in the first appeal, which involved only portions of Theodore's deposition testimony, Constantinos's motion to modify the Protective Order requested permission to use in future litigation all the materials previously designated as confidential. On June 10, 2015, Theodore filed a petition requesting that the trial court exclude certain portions of his deposition from the public record under Administrative Rule 9.[8]

         [¶9] On September 14, 2015, the trial court held a hearing on the Administrative Rule 9 issue. At this hearing, Theodore presented evidence that information regarding his business transactions and his personal fortune would increase the risk of kidnapping and terrorist attacks against him and his family. Theodore presented evidence that his uncle had been assassinated by a terrorist group in Athens in 1986. He also presented evidence that he and his wife were public figures in Greece. Indeed, his wife had been a member of the Greek parliament, was president of the organizational committee for the 2004 Athens Olympic Games, and is currently an ambassador-at-large for Greece. Theodore also presented evidence that the economic and political situation in Greece was unstable and that kidnappings and ransom demands had increased. Thus, Theodore argued that publicizing the details of his sale of Beta Steel would increase the threats against him and his family. At the conclusion of the hearing, the trial court took the matter under advisement. Two weeks later, on September 28, 2015, the trial court held a hearing on Constantinos's motion to modify the Protective Order. At this hearing, no witnesses testified, and no evidence was admitted. The trial court also took this matter under advisement.

         [¶10] On February 12, 2016, the trial court issued an order on both matters. The court denied Constantinos's motion to modify the Protective Order, reasoning that the issue of the ownership of Beta Steel had been conclusively decided and could not be relitigated in Indiana. Therefore, "If [Constantinos] wishes to introduce materials subject to the Order in a Greek proceeding, he must do so pursuant to the procedures set forth in Greece." Appellant's App. p. 27. With regard to the Administrative Rule 9 issue, the trial court determined that Theodore had adequately proven that the release of the confidential portions of Theodore's deposition would pose a threat to the safety of Theodore and his family, that the deposition testimony contained trade secrets and financial information that could affect future business dealings between the brothers, and that Constantinos had failed to explain why the deposition should be public despite these concerns. Constantinos now appeals this order as to both issues.

         I. Theodore's Deposition Should Remain Confidential

         [¶11] Constantinos claims that the trial court erred in concluding that portions of Theodore's deposition testimony should remain confidential and not become part of the public record pursuant to Administrative Rule 9. As noted above, in our earlier opinion, we reversed the trial court's order regarding public access to Theodore's depositions and remanded with instructions that the trial court hold a hearing at which Theodore would have to prove by clear and convincing evidence that portions of his depositions should ...


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