In Re: Ohio Execution Protocol Litigation

Filing 1115

CORRECTED DECISION AND ORDER ON DEFENDANTS' MOTION TO MODIFY DECISION AND ORDER ON PLAINTIFFS' RENEWED MOTION TO PRESERVE AND PRODUCE EXECUTION MATERIALS. Signed by Magistrate Judge Michael R. Merz on 7/21/2017. (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
Tibbetts and Otte

CORRECTED DECISION AND ORDER ON DEFENDANTS’
MOTION TO MODIFY DECISION AND ORDER ON PLAINTIFFS’
RENEWED MOTION TO PRESERVE AND PRODUCE EXECUTION
MATERIALS

This case is before the Court on Defendants’ Motion to Modify (ECF No. 1113) the
Court’s Decision and Order (ECF No. 1107) granting in part and denying in part Plaintiffs’
renewed Motion to Preserve and Produce Execution Materials (ECF No. 737).
To clarify, the Order does not require Defendants to produce anything to anyone, but
merely to preserve the execution materials pending further order of the Court.
To the extent the instant Motion may be read to object to photographing the execution
materials at all, including the vials and boxes, the Court would direct Defendants’ counsels’
attention to their Memorandum in Partial Opposition (ECF No. 748) in which they said
Defendants will agree to photograph the vials, the boxes and the
syringes, but reserve the right to redact any information which
would identify, or reasonably lead to the identification of, the
manufacturer, source or supplier of the execution drugs that may
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be contained on copies of those photographs before producing
them in discovery, pursuant to the Court’s October 2015 Existing
Protective Order, whose validity is on appeal in Fears v. Kasich,
Sixth Cir. Case No. 16-3149. Furthermore, Defendants reserve the
right to object to produce [sic] unredacted copies of these
photographs as it could compel them to violate R.C. 2949.221.
Id. at PageID 23310. The Court now understands that Defendants believe there is a risk of
violating Ohio Revised Code § 2949.221 and 2949.222 in producing redacted photographs from
which in Arkansas it was reportedly possible for the Associated Press to obtain and publicly
disclose information arguably protected by the statutes (ECF No. 1113, PageID 42985). To
repeat the clarification from above, Defendants are not required by the Order to produce
anything to anyone. However, Defendants will be held to their agreement, quoted above, “to
photograph the vials, the boxes[,] and the syringes.” This will help secure the preservation of the
execution materials and preserve the Court’s ability to rule on further motions regarding them.

July 21, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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