In Re: Ohio Execution Protocol Litigation

Filing 1050

ORDER - PageID 30226-27 and 30255 from the deposition of Stephen Gray are ordered unsealed. Plaintiffs shall promptly file those pages separately from ECF No. 905-1. Signed by Magistrate Judge Michael R. Merz on 5/24/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,

:

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiffs
Phillips, Tibbetts, and Otte

ORDER

This case is before the Court on Defendants’ Motion for Protective Order to Require the
Partial Redaction of the December 2016 Depositions of Defendants Stephen Gray, Richard
Theodore, and Anonymous Execution Team Members No. 9, 17, 21, 31, and 32 (ECF No. 975).
Plaintiffs opposed the Motion (ECF No. 1006) and Defendants have filed a Reply in support
(ECF No. 1008).
Although this Motion has been ripe for decision since March 3, 2017, the Court had not
reached it because of the pendency of other capital litigation matters, principally motions to add
claims under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016), and the most recent decision
of the Sixth Circuit in the Stanley Adams habeas corpus litigation in the Northern District of
Ohio, Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), cert. den. sub. nom. Adams v.
Jenkins, 137 S.Ct. 814, 106 L. Ed. 2d 602 (2017). Based on the request of Plaintiffs during the
telephone scheduling conference on May 23, 2017, the Court is treating some of the proposed
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redactions to the Stephen Gray deposition on an expedited basis in connection with the parties’
briefing for rehearing en banc in Sixth Circuit case No. 17-3076.
The Gray deposition was filed under seal (ECF No. 905-1). The portions of the Gray
deposition at issue in this expedited decision are PageID 30226-27 and 30255.
As both parties note, the depositions taken during the contracted discovery period
preceding the January 2017 preliminary injunction hearing were permitted to be filed under seal
provisionally without prejudice to eventual full consideration of whether they should be
maintained under seal. Although the Court indicated it would entertain a motion from Plaintiffs
to unseal (ECF No. 851 granting ECF No. 849), ultimately the Defendants became the moving
party and sought to maintain the deposition under seal (ECF No. 975).
In opposing that Motion, Plaintiffs argue first that the Court relied on Mr. Gray’s
deposition testimony in granting preliminary injunctive relief (AmMemoOpp, ECF No. 1006,
PageID 38753, citing Decision and Order, ECF No. 948, PageID 32229). The relevant passage
reads:
There remains the possibility that Ohio can obtain the active
pharmaceutical ingredient of pentobarbital and have it made into
injectable form by a compounding pharmacy. Deposition
testimony established that, to do so, Ohio requires an import
license from the federal Drug Enforcement Administration and that
it has an application for such a license pending, but that it has no
indication when a decision on that application might be made.

Id. The Court plainly relied on some deposition testimony in granting preliminary injunctive
relief, although no record reference is given in the Decision and Order.
At the request of Defendants and with the consent of Plaintiffs, the Magistrate Judge
presided at Mr. Gray’s deposition so that prompt rulings could be made on confidentiality and

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attorney-client privilege questions; Mr. Gray is in-house counsel for the Ohio Department of
Rehabilitation and Corrections. (ECF No. 905-1, PageID 30178.) At the time of the deposition,
District Judge Frost’s decision upholding Ohio’s lethal injection secrecy statute was still on
appeal; In re: Ohio Execution Protocol Litig.,(Fears v. Kasich), 845 F.3d 231 (6th Cir. 2016),
was not decided until December 30, 2016, several weeks after the Gray deposition.
At pages PageID 30226, 30227, and 30255 of the deposition, Defendants’ counsel Mr.
Madden, made repeated objections which the Magistrate Judge understood were based on the
secrecy statute and which were overruled because the Magistrate Judge concluded that truthful
answers would not violate the statute. (ECF No. 905-1.) Technically, those rulings were made
with the Magistrate Judge presiding as the officer before whom the deposition was being taken.
Although the deposition took place in a courtroom in the Joseph P. Kinneary United States
Courthouse in Columbus, Ohio, that was merely as a matter of convenience to the litigants. The
deposition was not an open court proceeding to which the public has a presumptive right of
access. In fact, although the courtroom was not locked, no person who was not associated with
litigating the case and bound by the confidentiality order was present at any time.
While those rulings were technically made in the course of discovery, the Court finds no
reason to depart from them in considering whether these three pages of deposition testimony
should be made available to the public. Ohio Revised Code § 2949.221(B) protects “any
information or record in the possession of any public office that identifies or reasonably leads to
the identification of the person” who engages in certain activities described in that statute. The
information disclosed by Mr. Gray on those three pages does not meet that description.
Plaintiffs rightly note the importance of making public matter relied on by a court in
reaching a decision, whether it is open court testimony or deposition testimony. (AmMemoOpp,

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ECF No. 1006, PageID 38753, citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d
1165, 1180 (6th Cir. 1983), and Charvat v. EchoState Satellite, LLC, 269 F.R.D. 654, 656 (S.D.
Ohio 2010)(Abel, M.J.). The unsealing of these three pages meets that requirement without
compromising the anonymity of person who have requested that protection under Ohio Revised
Code § 2949.221.
Accordingly, PageID 30226-27 and 30255 from the deposition of Stephen Gray are
ordered unsealed. Plaintiffs shall promptly file those pages separately from ECF No. 905-1.

May 24, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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