Jordan et al v. Fisher et al
Filing
168
ORDER granting 125 Motion for Protective Order; granting in part and denying in part 127 Motion to Compel; denying 129 Motion to Amend/Correct; granting in part and denying in part 130 Motion to Amend/Correct; granting in part and denying in part 127 Motion for Sanctions Signed by District Judge Henry T. Wingate on 3/29/2018 (hw)
IN THE UNITED DEFENDANTSS DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RICHARD JORDAN and
RICKY CHASE
VS.
PLAINTIFFS
CIVIL ACTION NO.: 3:15CV295HTW-LRA
PELICIA D. HALL, Commissioner,
Mississippi Department of Corrections;
MARSHAL TURNER, Superintendent,
Mississippi Defendants Penitentiary; THE
MISSISSIPPI DEFENDANTS EXECUTIONER,
And UNKNOWN EXECUTIONERS
ROBERT SIMON; THOMAS EDWIN
LODEN, JR. and ROGER ERIC THORSON
DEFENDANTS
INTERVENORS
MEMORANDUM OPINION AND ORDER
Filed pursuant to 28 U.S.C. §13311, 42 U.S.C. §19832, 28 U.S.C. §1367(a)3, and Article
3, Sections 144, 245, and 286 of the Mississippi Constitution, on April 16, 2015, this death-
1
28 U.S.C. §1331: The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.
2
Title 42 U.S.C.A. §1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
3
28 U.S.C. §1367(a): (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
4
MS Const. Art. 3, § 14: No person shall be deprived of life, liberty, or property except by due process of law.
5
MS Const. Art. 3, § 24: All courts shall be open; and every person for an injury done him in his lands, goods,
person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without
sale, denial, or delay.
6
MS Const. Art. 3, § 28: Cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.
penalty action centers on Mississippi’s execution protocol. When Plaintiffs initially filed this
challenge, Mississippi utilized the lethal injection protocol, adopted in March, 2012, calling for
the sequential injection of three drugs, the first being “an ultra short-acting barbiturate or other
similar drug.” Sodium pentothal was originally used as the first drug, until that drug became
unavailable. Later, the Defendants resorted to pentobarbital, and eventually to midazolam as the
first drug.
This Court, then, permitted the Plaintiffs herein to amend their complaint to attack the use
of that drug. Plaintiffs filed their Amended Complaint on September 28, 2015 [Docket No. 50].
The Defendants submitted their answer on October 26, 2015 [Docket No. 51].
Plaintiffs’ Amended Complaint, in summarized form, attacked the amendment to
Mississippi’s protocol, which allows for the use of pentobarbital as the first drug in the threedrug series where sodium pentothal is unavailable. Plaintiffs allege, in their amended complaint,
“Pentobarbital – even in its FDA-approved form – is not classified as an ultra
short-acting barbiturate. Rather it is classified as a short- or intermediate-acting
barbiturate. This classification recognizes the slower speed of onset of pentobarbital
when compared to an ultra short-acting barbiturate.
While the Mississippi statute provides for use of an “ultra short-acting barbiturate
or other similar drug,” pentobarbital is not sufficiently similar to an ultra short-acting
barbiturate as to be considered an “other similar drug” within the meaning of a statute.
This is true even for FDA-approved pentobarbital, let alone for compounded
pentobarbital made from unknown active pharmaceutical ingredients, as MDOC
(Mississippi Department of Corrections) intends to now use.”
[Docket No. 50, p.48].
Plaintiffs further contend, in summary, that Defendants’ “failure to use an ultra shortacting barbiturate as required by Miss. Code Ann. §99-19-51 creates an unacceptable risk of
severe pain and serious harm in violation of the Eighth Amendment, and violates Plaintiffs’ due
process guarantees under the Fourteenth Amendment.” [Docket No. 50, p. 49].
2
For relief, Plaintiffs ask this Court to:
“Grant a declaratory judgment that neither pentobarbital nor midazolam are
ultrashort acting barbiturates or other similar drugs and are therefore not permitted for
lethal injection executions in Mississippi;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs with any drug which is not an ultra short-acting barbiturate;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs with either compounded pentobarbital or midazolam, which are neither ultrashort acting barbiturates nor similar to ultra short-acting barbiturates;
Grant a declaratory judgment that the words “in combination with a chemical
paralytic agent” in Miss. Code Ann. §99-19-51 violate the Eighth and Fourteenth
Amendment to the United States Constitution;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs with compounded drugs;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs with a three-drug series which includes a chemical paralytic agent and
potassium chloride;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs until such time as Defendants can demonstrate the integrity, purity, potency,
and legality of any and all controlled substances they intend to use for Plaintiffs’
executions;
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs without providing full and complete information about the drugs that
Defendants intend to use in their execution, within sufficient time for Plaintiffs to raise
any statutory or constitutional challenges to the use of said drugs.
Grant preliminary and permanent injunctive relief to enjoin the Defendants, their
officers, agents, employees, and all persons acting in concert with them from executing
Plaintiffs until such time as Defendants can demonstrate that measures are in place to
allow for Plaintiffs’ execution in a manner that complies with the Eighth and Fourteenth
Amendments to the United States Constitution;
Award costs and attorney’s fees pursuant to 42 U.S.C. §1988; and
Grant any such other relief that this Court determines to be just and proper in
these premises.”
[Docket No. 50, pp. 56-58].
The Plaintiffs herein are Richard Jordan and Ricky Chase, both of whom are presently on
death row at the Mississippi State Penitentiary located in Parchman, Mississippi. The Defendants
3
are Pelicia D. Hall, Commissioner, Mississippi Department of Corrections; Marshal Turner,
Superintendent, Mississippi State Penitentiary; the Mississippi State Executioner; and Unknown
Executioners. The Intervenors in this case are Robert Simon7, Thomas Edwin Loden, Jr.8, and
Roger Eric Thorson9.
Before this Court for rulings are four motions vital to the progress of this litigation: the
Defendants’ Motion for Protective Order [Doc. #125]; the Plaintiffs’ Motion to Compel and for
Sanctions [Doc. #127]; the Plaintiffs’ Motion for Leave to File Second Amended Complaint
[Doc. #129]; and the Plaintiffs’ Motion for Amendment to Scheduling Order [Doc. #130].
On November 8, 2017, this Court permitted oral arguments on all of these motions.
By scheduling these arguments, the Court granted the Plaintiffs’ Motion for Oral Argument
[Doc. #150], as was announced at the beginning of the hearing.
Having read the submissions and heard the argument of counsel, this Court is of the
opinion, for the following reasons that the Defendants’ Motion for Protective Order should be
granted. The Plaintiffs’ Motion to Compel should be granted in part and denied in part as to
compelling production, but denied as to the award of sanctions. The Plaintiffs’ Motion for Leave
to File Second Amended Complaint should be denied, and the Plaintiffs’ Motion for Amendment
to Scheduling Order should be granted in part and denied in part.
I.
BACKDROP
Lethal injection has been the method of execution in Mississippi since the 1984
amendment of Miss. Code Ann. §99-19-51 (1972). This lawsuit was filed in April, 2015. Its
7
Intervenor Robert Simon, Jr. is a prisoner under sentence of death at the Mississippi State Penitentiary at
Parchman, Mississippi.
8
Intervenor Thomas Edwin Loden, Jr. is a United States citizen, currently incarcerated under a sentence of death at
the Mississippi State Penitentiary in Parchman, MS.
9
Intervenor Roger Eric Thorson is a prisoner under sentence of death at the Mississippi State Penitentiary at
Parchman, Mississippi.
4
original basis was the Plaintiffs’ attack on Mississippi’s then-current lethal injection protocol,
adopted in March, 2012. That protocol called for the sequential injection of three drugs, the first
being “an ultra short-acting barbiturate or other similar drug.” The second drug to be
administered, either pavulon or vecuronium bromide, causes paralysis. The third drug is
potassium chloride, which causes cardiac arrest.
Originally, the Defendants used sodium pentothal as the first drug; however, that drug
ultimately became unavailable to the Defendants. The 2012 amendment permitted the use of
pentobarbital; that drug, too, ultimately became unavailable, in injectable form, to the
Defendants. Even so, Plaintiffs herein in their original Complaint alleged that pentobarbital was
not “an ultra-short-acting barbiturate or similar drug.” The Defendants were able to procure
pentobarbital in a powder form, but this powder form, said Plaintiffs, could not be reliably
compounded into a form for injection. The Defendants later announced that they had changed
the execution protocol to provide for the use of midazolam as the first drug. In response, the
Plaintiffs sought this Court’s permission to, and were granted permission to amend their
Complaint to attack the use of that drug.
In spring, 2017, the Mississippi Legislature amended § 99-19-51 to provide that the first
drug administered during the lethal injection process would be “an appropriate anesthetic or
sedative.” The amendment also provided for additional methods of execution. The first method
continues to be by lethal injection, as described. If this method is held to be unconstitutional by
a court of competent jurisdiction, or is otherwise unavailable, the method of execution is nitrogen
hypoxia10. If this method is held to be unconstitutional by a court of competent jurisdiction, or is
10
Nitrogen hypoxia during an execution “would be induced by having the condemned prisoner breathe a gas
mixture of pure nitrogen.” https://www.theatlantic.com/politics/archive/2015/03/can-executions-be-morehumane/388249/
5
otherwise unavailable, the method of execution is by electrocution. If this method is held to be
unconstitutional by a court of competent jurisdiction, or is otherwise unavailable, the method of
execution is by firing squad. The statute does not define the circumstances under which a
method of execution would be “unavailable.”
The amendment further provides that the identities of members of the execution team, the
suppliers of lethal injection chemicals, and witnesses to an execution are to remain confidential.
This portion of the amendment was an obvious response to the focused concentration of antideath penalty litigators to destroy any enthusiasm of these persons to participate in any phase of
the death penalty procedure.
II.
Motion to Compel/Motion for Protective Order
The Plaintiffs’ Motion to Compel and the Defendants’ Motion for Protective Order are
two sides of the same coin. Both stem from the Plaintiffs’ discovery requests that could identify
the parties which supply execution drugs to the Defendants, as well as the identity of the state
employees involved in the purchases. The Defendants argue that since this information is
protected under Miss. Code Ann. § 99-19-51, good cause exists for the entry of a protective
order under Fed. R.Civ. P. 2611. The Plaintiffs disagree, contending that the information they
11
Fed. R. Civ. P. 26: (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought
may move for a protective order in the court where the action is pending -- or as an alternative on matters relating to
a deposition, in the court for the district where the deposition will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve
the dispute without court action. The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be
revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be
opened as the court directs.
6
seek is not statutorily protected and, additionally, that the Defendants have failed to show they
are entitled to a protective order under Rule 26.
In their first set of Interrogatories and Requests for Production, the Plaintiffs asked the
Defendants to identify all communications regarding the purchase of lethal injection drugs and
produce any documents related to those communications. The Defendants responded with the
dates and general content of the communications requested, identifying the participants only by
initials and numbers, except where a participant was the Commissioner of the Mississippi
Department of Corrections or her corollary in another state. The Defendants also provided
redacted copies of purchase orders and other documents related to some of those
communications.
The Plaintiffs thereafter served a second set of discovery requests aimed at discovering
whether any communications with potential drug suppliers had occurred since those documented
earlier. The interrogatory and response are quoted below:
INTERROGATORY NO. 18: Describe all efforts by MDOC to purchase any of
the following, whether in manufactured (FDA-approved) form, compounded from
API, or the API itself: pentobarbital, midazolam, any chemical paralytic agent,
and/or potassium chloride. Also, identify all persons with discoverable knowledge
of these efforts, identify all documents containing discoverable information
regarding these efforts, and identify all communications related to those efforts.
RESPONSE TO INTERROGATORY NO. 18: Defendants object to this
Interrogatory for the following reasons: (1) it seeks the disclosure of the identities of
MDOC employees and/or agents who have obtained and/or transported and/or
attempted to obtain or transport lethal injection drugs on behalf of MDOC, which
could subject those individuals to annoyance, embarrassment, oppression,
harassment, retaliation, including potentially endangering their safety and/or well
being; (2) it seeks information that could lead to the identification of individuals or
entities that have supplied lethal injection drugs to MDOC and subject those
individuals or entities to annoyance, embarrassment, oppression, harassment,
retaliation, including potentially endangering their safety and/or well being ; (3) it
seeks information that is confidential and protected from disclosure by Miss. Code.
Ann. § 99-19-51; and (4) it seeks information that is protected by the attorney/client
7
privilege, the work product doctrine, and/or which would otherwise disclose the
mental impressions, conclusions, opinions, or legal theories of defense counsel and
MDOC’s attorneys.
Without waiving, and subject to those objections, Defendants respond as
follows: Since June 2016, AG1, acting on behalf of MDOC and at the direction of the
Commissioner of MDOC, contacted Supplier 1 and inquired if it could obtain and
would supply any of the referenced drugs to the State for use in executions.
Supplier 1 obtained and then supplied MDOC with 80 units of midazolam, 6 units
of vecuronium bromide, and 20 units of rocuronium bromide. An employee of
MDOC (“MDOC3”) picked up the drugs from Supplier 1 and transported the
drugs to MSP. Supplier 1 notified AG1 that Supplier 1 could not obtain
potassium chloride at a concentration suitable for use in executions. Thereafter,
AG1, acting on behalf of MDOC and at the direction of the Commissioner of
MDOC, requested that a member of the Execution Team (“SE1”) obtain
potassium chloride from a supplier. SE1 subsequently obtained 17 units of
potassium chloride from Supplier 2. MDOC3 picked up the drug from Supplier 2
and transported the drug to MSP. The only documents in the possession, control,
or custody of Defendants reflecting these efforts to obtain lethal injection drugs
since June 2016 are emails between AG1 and Supplier 1 and MDOC’s drug
inventory logs. Defendants are producing redacted copies of drug inventory logs
covering the time period from January 7, 2016 through June 5, 2017. Defendants
are withholding the emails because they would disclose the identity of Supplier 1
in violation of Miss. Code Ann. § 99-19-51, and could subject Supplier 1, the
owner(s) of Supplier 1, and Supplier 1’s employees to annoyance,
embarrassment, oppression, harassment, retaliation, including potentially
endangering their safety and/or well being. See Defendants’ Second
Supplemental Privilege Log, which is being produced.
[Exh. B, Defs.’ Resp. and Obj. to Pls.’ Second Set of Interr at 5-6].
Request for Production 17 of Plaintiffs’ Second Set of Requests for Production and
MDOC’s response read as follows:
REQUEST NO. 17: Produce all documents identified in your Answer to
Interrogatories 18-22.
RESPONSE TO REQUEST NO. 17: Defendants object to this Request in that it seeks
documents that are protected by the attorney-client privilege, the work product doctrine,
and/or which would otherwise disclose the mental impressions, conclusions, opinions, or
legal theories of defense counsel and MDOC's attorneys. Defendants further object to
this Request on the grounds that: (1) it seeks documents which identify or may be used to
identify MDOC employees and/or agents who have obtained and/or transported and/or
8
attempted to obtain or transport lethal injection drugs on behalf of MDOC, which could
subject those individuals to annoyance, embarrassment, oppression, harassment,
retaliation, including potentially endangering their safety and/or well being; (2) it seeks
documents which identify or may be used to identify individuals or entities that have
supplied lethal injection drugs to MDOC and subject those individuals or entities to
annoyance, embarrassment, oppression, harassment, retaliation, including potentially
endangering their safety and/or well being ; and (3) it seeks information that is
confidential and protected from disclosure by Miss. Code. Ann. § 99-19-51.
[Docket No. 126, pp. 2-4].
Plaintiffs were, predictably, not satisfied with Defendants’ responses. Additionally, in
their correspondence with Defendants, Plaintiffs’ counsel further asserted that, in response to
Request 17, MDOC should have produced “any drug labels or package inserts for the newly
acquired supplies of midazolam, rocuronium bromide, vecuronium bromide, and potassium
chloride.” [Id. at 2]. Lastly, Plaintiffs’ counsel objected to MDOC’s refusal to provide them with
copies of emails between AG1 and Supplier 1:
Communications with Supplier 1. Defendants state (in response to Interrogatory
No. 18) that they are “withholding the emails because they would disclose the
identity of Supplier 1 in violation of Miss. Code Ann. § 99-19-51.” Plaintiffs
dispute the applicability of the secrecy provisions in Miss. Code Ann. § 99-19-51
to discovery in this federal civil rights action. That objection aside, Defendants
have no basis for withholding the emails - and their contents - in their entirety.
Plaintiffs would ask that all correspondence with Supplier 1, as detailed in the
Second Supplemental Privilege Log, be provided. To the extent Defendants seek
to rely on the secrecy provisions of Miss. Code Ann. § 99-19-51, redactions
should be made such that the content of the communications may be provided to
Plaintiffs.
[Docket No. 126, p. 5].
In light of the amendment to the method of execution statute, this Court held a status
conference on May 31, 2017. At that hearing, counsel for the Defendants announced that they
had been told that the Department of Corrections might have procured the drugs necessary to
conduct executions. The Defendants subsequently provided supplemental discovery responses
9
that revealed that indeed communications had occurred after the initial discovery responses. The
Defendants then produced documents pertaining to some requests, but some were redacted.
Other documents were withheld, but generally described in a privilege log.
Contending that the non-disclosure was lawful and appropriate, the Defendants justified
their actions under an entitlement of “Institutional Security,” more fully defined as follows:
For reasons of institutional security, including the safety and/or well-being
of MDOC employees and/or agents responsible for the procurement,
transportation, storage, inventory and control of stocks of lethal injection drugs to
MDOC; as well as the State Executioner and members of the Execution Team; the
names of all such persons or entities, the lot numbers of the specific drugs
included in the inventory, and any other information which might identify a
specific individual or entity has been redacted. Disclosure of the unredacted
information could subject the affected individuals or entities to annoyance,
embarrassment, oppression, harassment, retaliation including potentially
endangering the safety and/or well-being of such persons or entities, and/or
impacting institutional security at MDOC facilities, and/or impacting the ability
of the State to obtain drugs necessary for carrying out executions. Further, the
identities of these individuals or entities are protected from disclosure by the
amendments to Miss. Code Ann. §99-19-51 enacted by Miss. S.B. 2237. In this
privilege log, for purposes of conserving space, hereinafter these grounds for
protection/privilege shall simply be referred to by the phrases “Institutional
Security” and “S.B. 2237.”
Mississippi’s statute on methods of execution also includes the provision on which the
Defendants rely. Specifically, § 99-19-51 states:
6)(a) The Commissioner of Corrections shall select an execution team to assist the
executioner and his deputies. This team, including the Defendants Executioner
and his deputies who are responsible for the administration of lethal chemicals,
shall consist of those persons, such as medical personnel, who provide direct
support for the administration of lethal chemicals. This team shall also include
those individuals involved in assisting in the execution in any capacity, as well as
those personnel assigned to specific duties related to an execution.
(b) For the purposes of this section, “supplier of lethal injection
chemicals” means a supplier or suppliers of lethal injection chemicals located
within the Defendants of Mississippi.
(c) The identities of all members of the execution team, a supplier of lethal
injection chemicals, and the identities of those witnesses listed in Section 99-1910
55(2) who attend as members of the victim's or the condemned person's
immediate family shall at all times remain confidential, and the information is
exempt from disclosure under the provisions of the Mississippi Public Records
Act of 1983.1
(7) Notwithstanding any provision of law to the contrary, any portion of any
record of any kind that could identify a person as being a current or former
member of an execution team or a current or former supplier of lethal injection
chemicals, or those witnesses listed in Section 99-19-55(2) who attend as
members of the victim's or the condemned person's immediate family, shall at all
times be confidential, exempt, and protected from disclosure, but the remainder of
the record shall not be protected unless otherwise provided by law. A court shall
preserve the secrecy of all confidential and exempt information described in this
section by reasonable means, which may include granting protective orders,
holding in-camera hearings, sealing the records of the action, and ordering any
person involved in the litigation not to disclose such information without prior
court approval.
In announcing that they had received execution drugs, the Defendants also informed the
Court and Plaintiffs’ counsel that the supplier of those drugs had insisted that any disclosure of
its identity to anyone would result in a future refusal to provide them. The Supplier submitted a
Declaration to that effect. [Docket No. 125, Exhibit 1]. That threat is the primary basis for
Defendants’ refusal to disclose any information that could be traced back to that supplier.
Claiming a need to insure the safety of the employees who had participated in the effort
to obtain those drugs, Defendants also refused to identify these persons based on the
confidentiality statute cited above. According to the Defendants, the “execution team” referred
to in 6(a) must include individuals who assist an execution in any capacity, as well as those
assigned to specific duties related to an execution. That group would include employees of the
Mississippi Department of Corrections, or the Attorney General’s Office who spoke, or
attempted to speak, with potential suppliers of lethal injection drugs. The Plaintiffs argue that,
even if all of those groups are protected, the statute itself contemplates that a court might allow
disclosure, but under the terms of a protective order, or by other means.
11
The Plaintiffs further contend that this statute, §99-19-51, does not govern the
confidentiality issue in federal court. The Defendants counter that they are not relying solely on
this statute, but argue that the statute is certainly one evidentiary resource which could bear on
the issue of whether a protective order should be entered under Fed.R.Civ.P. 26. By a protective
order, the Defendants mean an order precluding discovery on these issues altogether. As an
alternative, the Plaintiffs argue that a protective order limiting the scope of disclosure is a viable
option.
This Court is persuaded that the Mississippi confidentiality statute is owed some
consideration here. Buford v. Holladay, 133 F.R.D. 487, 492-93 (S.D. Miss. 1990) (“This Court
initially notes that, as in all federal court cases, the discovery process and the privileges that may
be asserted during the course of discovery are governed by the Federal Rules of Civil Procedure
and the Federal Rules of Evidence. [Cites omitted.] This does not mean, however, that state
privilege rules should be ignored.”); Coughlin v. Lee, 946 F.2d 1152, 1159-60 (5th Cir. 1991)
(considering Louisiana law on confidentiality, but recognizing that federal law controls).
The most persuasive authority here, however, is Fed. R. Civ. P. 26(c). That guiding Rule
provides that a court may issue a protective order precluding or limiting discovery “for good
cause . . . to protect a party or person from annoyance, embarrassment, oppression or undue
burden or expense.” In analyzing a request for a protective order, the court “’must compare the
hardship to the party against whom discovery is sought against the probative value of the
information to the other party.’” Cazorla v. Koch Foods, 838 F.3d 540, 555 (5th Cir. 2016)
(quoting 6 James Wm. Moore, et al., Moore’s Federal Practice ¶ 26.101[1][c] (3d ed. 2011).
The court should also “weigh relevant public interests in this analysis.” Cazorla, 838 F.3d at
555. The burden is on the Defendants to prove their entitlement to a protective order, although
12
there is some authority that the burden is lessened when the information sought is particularly
sensitive. Natural Gas Pipeline Co. v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993)
(citing S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985) (holding that party
seeking tax returns must show relevance and compelling need).
Here, the Plaintiffs argue that they need information on the Defendants’ efforts to
obtain execution drugs to support their argument that pentobarbital is actually
“available.” Their claim is that Mississippi officials have not made a good faith effort to
obtain pentobarbital, particularly since other states have been able to procure it. The
Defendants, on the other hand, argue that they will suffer extreme prejudice and hardship
if this information on their efforts is released.
The United States Supreme Court has recognized the problems created by the
disclosure of this type of information:
Baze cleared any legal obstacle to use of the most common three-drug
protocol that had enabled States to carry out the death penalty in a quick
and painless fashion. But a practical obstacle soon emerged, as anti-deathpenalty advocates pressured pharmaceutical companies to refuse to supply
the drugs used to carry out death sentences. The sole American
manufacturer of sodium thiopental, the first drug used in the standard
three-drug protocol, was persuaded to cease production of the drug. After
suspending domestic production in 2009, the company planned to resume
production in Italy. Koppel, Execution Drug Halt Raises Ire of Doctors,
Wall Street Journal, Jan. 25, 2011, p. A6. Activists then pressured both the
company and the Italian Government to stop the sale of sodium thiopental
for use in lethal injections in this country. Bonner, Letter from Europe:
Drug Company in Cross Hairs of Death Penalty Opponents, N.Y. Times,
Mar. 30, 2011; Koppel, Drug Halt Hinders Executions in the U.S., Wall
Street Journal, Jan. 22, 2011, p. A1. That effort proved successful, and in
January 2011, the company announced that it would exit the sodium
thiopental market entirely. See Hospira, Press Release, Hospira Statement
Regarding Pentothal ™ (sodium thiopental) Market Exit (Jan. 21, 2011).
After other efforts to procure sodium thiopental proved unsuccessful,
States sought an alternative, and they eventually replaced sodium
thiopental with pentobarbital, another barbiturate. In December 2010,
Oklahoma became the first State to execute an inmate using pentobarbital.
13
See Reuters, Chicago Tribune, New Drug Mix Used in Oklahoma
Execution, Dec. 17 2010, p. 41. That execution occurred without incident,
and States gradually shifted to pentobarbital as their supplies of sodium
thiopental ran out. It is reported that pentobarbital was used in all of the 43
executions carried out in 2012. The Death Penalty Institute, Execution List
2012, online at www.deathpenalty info.org/execution–list–2012 (all
Internet materials as visited June 26, 2015, and available in Clerk of
Court's case file). Petitioners concede that pentobarbital, like sodium
thiopental, can “reliably induce and maintain a coma-like state that renders
a person insensate to pain” caused by administration of the second and
third drugs in the protocol. Brief for Petitioners 2. And courts across the
country have held that the use of pentobarbital in executions does not
violate the Eighth Amendment. See, e.g., Jackson v. Danberg, 656 F.3d
157 (C.A.3 2011); Beaty v. Brewer, 649 F.3d 1071 (C.A.9 2011);
DeYoung v. Owens, 646 F.3d 1319 (C.A.11 2011); Pavatt v. Jones, 627
F.3d 1336 (C.A.10 2010).
Before long, however, pentobarbital also became unavailable. Anti-death-penalty
advocates lobbied the Danish manufacturer of the drug to stop selling it for use in
executions. See Bonner, supra. That manufacturer opposed the death penalty and
took steps to block the shipment of pentobarbital for use in executions in the
United States. Stein, New Obstacle to Death Penalty in U.S., Washington Post,
July 3, 2011, p. A4. Oklahoma eventually became unable to acquire the drug
through any means. The District Court *2734 below found that both sodium
thiopental and pentobarbital are now unavailable to Oklahoma. App. 67–68.
Glossip v. Gross, 135 S. Ct. 2726, 2733–34 (2015).
For these reasons, other courts have also protected this type of information from
disclosure. Earlier, counsel for Plaintiffs in this case served subpoenas on the correctional
departments of several Defendants to discover the identities of their suppliers. Missouri,
Virginia, Alabama, and Ohio come to mind.
Missouri: The Missouri Department of Corrections, among others, sought court
protection from the subpoenas, and that dispute went to the Eighth Circuit Court of Appeals. As
is the case here, Missouri’s Department of Corrections claimed that its drug supplier had
announced that it would refuse to supply further drugs if its identity was disclosed to anyone. In
light of this potential elimination of Missouri’s supplier, the court granted Missouri’s request for
relief. In so doing, the Eighth Circuit noted that compelling Missouri to identify its supplier
14
“will not help the inmates establish the existence of an available alternative method of
execution.” In re Missouri Dep’t of Corrections, 839 F.3d 732, 736 (8th Cir. 2016). Moreover,
as shown, eliminating that supplier as a source for execution drugs would cause an undue burden
on Missouri, justifying protection under Fed.R.Civ.P. 4512. Requiring confidentiality by means
of a protective order to limit disclosure is not a satisfactory solution, both because the supplier
would not sell any more drugs if its identity was disclosed to anyone, as well as the risk, perhaps
particularly great in this type of litigation, that an unintended disclosure to persons not directly
related to this lawsuit would occur. Id. at 737.
Virginia: A similar request was made by subpoena to the Virginia Department of
Corrections, which filed a motion to quash. Although the situation was slightly different, the test
was the same. There, the Department of Corrections refused to provide information that would
disclose the name of its supplier or the members of its execution team. The district court granted
the motion to quash, holding that “disclosures pursuant to a subpoena that impede a state’s
ability to carry out executions constitute an undue burden.” In re: Virginia Dep’t of Corrections
v. Jordan, 2017 WL 5075252 at *5 (E.D. Va. Nov. 3, 2017).
Alabama: In a case out of Alabama that did not involve these Plaintiffs, the district court
limited discovery of the supplier of lethal injection drugs, instead requiring the State to produce a
“general description” of its efforts to obtain pentobarbital, identifying whether it had been
successful in obtaining the drug, and, if not, why not. Arthur v. Commissioner, Alabama Dep’t
of Corrections, 840 F.3d 1268, 1304-05 (11th Cir. 2016). The Eleventh Circuit affirmed the
12
Fed. R. Civ. P. 45: d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or
Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where
compliance is required must enforce this duty and impose an appropriate sanction--which may include lost earnings
and reasonable attorney's fees--on a party or attorney who fails to comply.
15
lower court, stating, “This information was precisely what Arthur needed to prove his Eighth
Amendment claim.” 840 F.3d at 1305. In that case, Thomas D. Arthur, a death row inmate who
brought § 1983 action against Commissioner of Alabama Department of Corrections, challenged
the State's method of execution under Eighth and Fourteenth Amendments. Refusing to expand
the scope of discovery, the court found that the prisoner “has given us no reason to think that the
ADOC13 lied or presented false evidence either during discovery or at trial and, indeed, the
district court noted that the ADOC had claimed to produce everything of relevance.” Id.
Ohio: Similarly, the Sixth Circuit has affirmed a district court’s limitation of discovery in
a challenge to a lethal injection protocol. After explaining the analysis that should be conducted
when considering a protective order, the court said, “Good cause exists if ‘specific prejudice or
harm will result’ from the absence of a protective order.” In re Ohio Execution Protocol
Litigation, 845 F.3d 231, 236 (6th Cir. 2016). Reviewing evidence of pressure applied to
pharmacies supplying lethal injection drugs, the district court found that the potential harm and
prejudice to those pharmacies was demonstrated by the evidence provided by the State. If the
drugs thereby became unavailable, “Defendants will suffer an undue burden and prejudice in
effectuating Ohio’s execution protocol and practices.” Id. at 239 (citing Cooey v. Strickland, 604
F.3d 939, 946 (6th Cir. 2010)). Moreover, even though the district court used the State’s law on
confidentiality of information regarding lethal injection, “this result does not federalize the Ohio
secrecy law as a common-law privilege for immunity. The district court referenced the statute as
an evidentiary data point for analysis only.” Id.
With regard to the identity of people involved in the execution process, the Court’s
analysis is based on the balancing required by Rule 26(c), regardless of whether those people
13
Alabama Department of Corrections.
16
would be covered under the Mississippi statute. Many of the cases cited above considered
protecting the identities of execution team members to be akin to protecting the identities of
suppliers. In re Ohio Execution Protocol, 845 F.3d at 238-39; In re Missouri Dep’t of
Corrections, 839 F.3d at 737; In re Virginia Dep’t of Corrections, 2017 WL 5075252 at **19-22.
In conducting this analysis, this Court believes that an opinion from the Supreme Court of
Tennessee best explains the problem:
Any constitutionally valid means of execution requires the participation of
numerous individuals (collectively, “the Participants”). Nevertheless, the
execution of condemned inmates remains a highly divisive and emotionally
charged topic in Tennessee. Revealing the identities of the Participants, even
subject to a protective order, creates a risk that the Participants would be deterred
from performing their lawful duties.
West v. Schofield, 460 S.W.3d 113, 128 (Tenn. 2015) (West I).
Here, the Plaintiffs say that they need information on suppliers and personnel to show
that their alternative execution drug, pentobarbital, is available. The Defendants counter that the
Plaintiffs could themselves obtain information to support that claim by simply creating a list of
pharmacies and calling them to determine whether any would be willing to sell pentobarbital to
the Mississippi Department of Corrections for use in executions. As the Eleventh Circuit held,
“The evidentiary burden is on [the Plaintiff] to show that ‘there is now a source for pentobarbital
that would sell it to the ADOC for use in executions.’” Arthur v. Commissioner, Alabama
Department of Corrections, 840 F.3d 1268, 1302 (11th Cir. 2016). The burden is not on the
Department of Corrections to show that it cannot acquire the drug. Id. at 1303.
The Court has reviewed these arguments and the applicable law and is of the opinion that,
on balance, the hardship to the Defendants of preventing them from obtaining lethal execution
drugs outweighs the Plaintiffs’ need for this information, which could be gathered by other
means. Entry of a protective order merely limiting the dissemination of information is an
17
unsatisfactory alternative, as the drug supplier has made it clear that it will discontinue selling
the necessary drugs if its identity is revealed. There is no allowance for revelation by court
order. Moreover, the inherent danger and hardship that would follow even an inadvertent
disclosure convince the Court that it must protect the information at issue from discovery. For
these reasons, the Defendants are entitled to withhold from discovery any material that would
identify suppliers of lethal injection drugs or persons involved in the execution process.
Some material may have been withheld that does not fall within either of these
categories, withheld perhaps under a claim of attorney-client privilege. The Plaintiffs argue that
Defendants took an unnecessarily broad view of this privilege. To the extent that material was
withheld on the basis of the attorney-client privilege that is not otherwise protected, the
Defendants should submit that material to the Court for in camera inspection.
Plaintiffs’ remaining discovery requests were aimed at obtaining information on
Mississippi’s three statutory alternatives to lethal injection: however, those requests presently are
irrelevant, as claims based on these alternatives are not ripe, as will be more fully explained
below.
III.
Motion to Amend Complaint/Motion to Amend the Scheduling Order
These Motions are based on the Plaintiffs’ argument that they should be permitted to
challenge the above-mentioned three alternative methods of execution recently approved by the
Mississippi Legislature. As grounds for that argument, they assert that if they are not permitted
to show that those alternatives are unavailable, they would be precluded from advancing the nonstatutory method of execution by a single drug injection that they propose. They further argue
that failing to attack these other methods at this juncture may bar them from making a future
attack because the statute of limitations will have run on their claims.
18
Mississippi’s general statute of limitations requires that an action be filed within three
years of the accrual of the right of action. Richard Jordan has been on Mississippi’s death row
since 1976. At his fourth and final trial in 1998, he was sentenced to death by lethal injection,
and that conviction and sentence became final in 2002. Ricky Chase has been on death row since
1989, having been sentenced to die by lethal injection. His conviction and sentence became final
in 1995. Thomas Loden has been on death row since 2001; his conviction and sentence became
final in 2008. Roger Thorson has been on death row since 1988; his conviction and sentence
became final, after a second trial, in 2005. Robert Simon has been on death row since 1990; his
conviction and sentence became final in 1997. The original Complaint in this case was filed on
April 16, 2015.
Since lethal injection in the mid 1980’s became the statutory method for executions in
Mississippi, the Department of Corrections has changed its protocol several times. Included in
the exhibits presented in this case are the protocols that existed in 2002, 2005, 2011, 2012, and
2015. The 2011 amendment permitted the Department of Corrections to substitute pentobarbital
in place of sodium pentothal, if that drug was unavailable, and to substitute vecuronium bromide
for pavulon, if that drug was unavailable. The original Complaint in this case was based on the
2012 protocol. The 2015 amendment added midazolam as a substitute for pentobarbital if
pentobarbital was unavailable, and the Plaintiffs were permitted to amend their Complaint to add
a claim based on that change.
Now the Plaintiffs want to amend again to add the three new methods of execution –
nitrogen hypoxia, electrocution, and firing squad. In adding the three alternative methods of
execution to its statute, the Legislature provided that, after lethal injection, no method could be
used unless the one preceding it was “held unconstitutional by a court of competent jurisdiction
19
or is otherwise unavailable.” While the failure to define “or is otherwise unavailable” does not
create a model of statutory clarity,14 the Court disagrees with the argument made during the oral
hearing on November 8, 2017, that the Mississippi Department of Corrections has unfettered
authority to declare a method unavailable without judicial intervention. At the current time,
lethal injection by the means described in § 99-19-51 has been declared neither unconstitutional
nor unavailable. The Defendants have stated that Mississippi now has the drugs to conduct an
execution pursuant to the statute, that no protocol has been established for execution by nitrogen
hypoxia, and that the time it would take to develop a protocol for a yet untried method of
execution would allow the Plaintiffs ample time to mount a challenge to it.
The Tennessee Supreme Court dealt with this question under a similar set of facts. West
v. Schofield, 468 S.W.3d 482, 491 (Tenn. 2015). The Tennessee statute in question provided for
alternative methods of execution if the preceding method was declared unconstitutional by a
court of competent jurisdiction, or where the Commissioner of Correction certified to the
government that the proceeding method was unavailable. As neither contingency had occurred,
the alternative methods were not ripe for adjudication “because they involve a method of
execution that does not now presently apply to the inmates and will never apply to them unless
one of two statutory contingencies occurs in the future.” Id. at 492.
The Plaintiff’s claim here that they cannot show that the single-drug execution method is
readily available unless they first litigate the other three methods is based on a case out of the
Eleventh Circuit, Arthur v. Commissioner, Alabama Dep’t of Corrections, 840 F.3d 1268 (11th
Cir. 2017). Arthur was a case out of Alabama, which provided for lethal injection with a threedrug cocktail. The protocol provided that the first drug was sodium thiopental; it was later
14
This language is apparently patterned after the Oklahoma statute enumerating execution methods. Okla. Stat., tit.
22, § 1014 (2017)
20
changed to pentobarbital, and finally to midazolam. Arthur asked that the protocol be changed to
a single-drug injection of pentobarbital or sodium thiopental, similar to the Plaintiffs’ request in
this case. The court held that the single-drug injection was not a feasible alternative to the use of
midazolam and that Arthur had failed to show that the use of midazolam created a substantial
risk of severe pain. Id. at 1315.
Alabama’s statute allowed a choice between lethal injection and electrocution. If lethal
injection and electrocution were both found unconstitutional, prisoners “shall be executed by any
constitutional method of execution.” Id. at 1274; Ala. Code Ann. §15-18-82.1(c). Arthur asked,
if his single-drug claim was rejected, to be executed by a third method -- firing squad. The court
held that Arthur could not impose upon the Defendants of Alabama a method of execution not
permitted by statute. In explaining why firing squad was not an acceptable or available method
of execution, the court noted that neither of the statutorily permitted modes had been declared
unconstitutional. Id. at 1316. This is not the primary holding in Arthur, but dicta. Even the
Plaintiffs have admitted that this is an “alternate holding,” and there is no indication that it has
been adopted by any other Circuit.
Additionally, as the United States Supreme Court has held, “A claim is not ripe for
adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed
may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v.
Union Carbide Agricultural Products Co., 473 U.S. 568, 580-81 (1985)). Where a case is
abstract, or hypothetical, it is not ripe. TOTAL Gas & Power North America, Inc. v. Federal
Energy Regulatory Comm’n, 859 F.3d 325, 333 (5th Cir. 2017). In determining ripeness, a court
should consider whether the issues are fit for judicial consideration and whether withholding a
21
judgment on the issues will cause hardship. Choice, Inc. v. Greenstein, 691 F.3d 710, 715 (5th
Cir. 2012).
At this time, nitrogen hypoxia appears to be little more than a theory. It seems that no
state has actually used it, and the Mississippi Department of Corrections has not developed a
protocol for it or for the other two alternatives. Any general challenge to this execution method
would, of necessity, be abstract. Moreover, the Plaintiffs will not be harmed by waiting until a
protocol has been established for the use of this alternative. Because the other means of
execution are not currently available in Mississippi, a challenge to them is not ripe. See also,
Alley v. Little, 452 F.3d 621, 625 (6th Cir. 2006) (where method of execution was not determined
until prisoner chose between two alternatives, his claim was not ripe until the alternatives
presented and a choice made).
The Plaintiffs also argue that the limitations period may run on their claims regarding the
other methods of execution if those claims are not brought before the Court in this case. It is this
Court’s opinion that, for the same reasons that the claim is not ripe, the limitations period has not
begun on alternative execution methods. While the methods have been approved by statute,
there is no protocol setting forth how executions by these methods would proceed.
Unfortunately, many courts discussing this issue, including the Fifth Circuit, have used
the terms “statute” and “protocol” interchangeably. See, e.g., Walker v. Epps, 550 F.3d 407 (5th
Cir. 2008). In Mississippi, while the protocol for lethal injection has been amended several
times, the statute has only been amended twice – once in 1998 to describe the drugs to be used in
the execution and not again until 2016, when the current confidentiality provisions were added.
The actual method of execution was not amended until 2017. If adoption of a statute was the
trigger for beginning the limitations period on lethal injection challenges, the Plaintiffs’ 2015
22
filing would have been barred. The Complaint itself, however, states that it is based on the
change in the lethal injection protocol, and the Court is of the opinion that Plaintiffs’ cause of
action accrued when the protocol was changed.
An instructive discussion of the distinction between statute and protocol is in the
dissenting opinion in another Eleventh Circuit case, McNair v. Allen, 515 F.3d 1168 (11th Cir.
2008) (Wilson, J., dissenting):
Callahan's § 1983 action is not based on the fact of his death sentence or
even on the fact that he is to be executed by lethal injection. Rather, Callahan is
asserting that the specific lethal injection protocol presently employed by
Alabama is likely to cause him undue pain and suffering when his execution is
carried out. This claim could have begun to accrue only (1) when Callahan knew
or had reason to know the details of Alabama's lethal injection protocol and (2)
when his execution became imminent.
Contrary to the majority's conclusion, neither of these circumstances
existed in July of 2002. Although Alabama adopted lethal injection as its sole
method of execution at that time, its specific protocol is neither fixed by law nor
readily accessible. The protocol is a creature of regulation, not statute, and thus it
is subject to change at any time by the Alabama Department of Corrections. As is
the case in other states, “[n]o statutory framework determines when or how such
changes may occur. Nor is there a framework governing when, or even if, such
changes will be publicized.” Cooey v. Strickland, 479 F.3d 412, 427 (6th
Cir.2007) (Gilman, J., dissenting). Indeed, it appears that Alabama has revised the
protocol on a number of previous occasions, and there is reason to believe that its
efforts to promulgate these changes have been inadequate. See Jones v. Allen, 483
F.Supp.2d 1142, 1146 n. 2 (M.D.Ala.2007) (noting that Alabama defendants
“admitted that earlier revisions to the protocol were made ... but that after diligent
search they [were] unable to locate the version of the protocol that existed before
such changes were made”). Adding to this uncertainty, the State of Alabama
keeps the specifics of its lethal injection protocol a secret. Siebert v. Allen, 2007
WL 3047086, at *1 (M.D. Ala. Oct. 17, 2007). I thus cannot accept the majority's
conclusion that Callahan's cause of action began to accrue five years before his
execution date was set, during which time Alabama could, and in fact did, amend
its lethal injection protocol [footnote omitted].
A better approach would be to fix the date of accrual when Callahan knew
or had reason to know the details of the protocol to be used in his execution and
when his habeas challenge to his sentence was exhausted.
23
Id. at 1178. This Court agrees that the limitations period for a claim based on nitrogen hypoxia
cannot begin to run until the cause of action accrues, which will be the adoption of protocol for
an execution based on the method. Similarly, a cause of action cannot accrue based on execution
by electrocution or firing squad until a protocol is in place. That being the case, the Motion for
Leave to File Second Amended Complaint will be denied.
The Motion for Amendment to Scheduling Order, however, rests on two grounds – the
request to amend the Complaint to add the three new execution methods and a request to extend
deadlines in the case based upon the recent discovery disputes. The Court is of the opinion that
the Motion should be granted for the second reason. Accordingly, the Court will extend the
discovery deadline in this case to July 28, 2018, with an Order to follow setting the remaining
deadlines consonant with this extension.
CONCLUSION
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Defendants’ Motion for Protective Order [Doc. #125] is hereby granted, as set
forth above.
2. The Plaintiffs’ Motion to Compel [Doc. #127] is hereby granted in part and denied
in part, with the Defendants to submit any documents described above that were
withheld only on grounds of attorney/client privilege to the Court for in camera
review on or before April 28, 2018.
3. The Plaintiffs’ Motion for Leave to File Amended Complaint [Doc. #129] is hereby
denied.
24
4. The Plaintiffs’ Motion for Amendment to Scheduling Order [Doc. #130] is hereby
granted in part and denied in part. The discovery deadline in this matter is
extended to July 28, 2018, with other deadlines to be re-set by later Order.
IT IS SO ORDERED, this the _29____ day of March, 2018.
s/ HENRY T. WINGATE
/s/ Henry T. Wingate
District Judge
25
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