In Re: Ohio Execution Protocol Litigation

Filing 1292

REPORT OF IN CAMERA INSPECTION; ORDER SUSTAINING DEFENDANTS' OBJECTION TO PRODUCTION. Signed by Magistrate Judge Michael R. Merz on 10/12/2017. (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
Campbell, Tibbetts, and Gapen

REPORT OF IN CAMERA INSPECTION; ORDER SUSTAINING
DEFENDANTS’ OBJECTION TO PRODUCTION

During the deposition of Larry Greene at the Southern Ohio Correctional Facility on
October 11, 2017, Plaintiffs requested a written statement of the witness relating to the execution
of Gary Otte. Defendants refused to produce the statement on the ground that it was attorney
work product protected from production by Fed. R. Civ. P. 26(b)(3) and Hickman v. Taylor, 329
U.S. 495 (1947). ODRC counsel Stephen Gray advised the Court that he had directed Mr.
Greene to prepare the statement on the day of the Otte execution, September 13, 2017.
At the Court’s instruction, the statement was forwarded to the Court for in camera
inspection under cover of the attached email from Mr. Gray. Having examined the document, I
find it to be what Mr. Gray represented. I further find that because Plaintiffs have been able to
depose Mr. Greene on the subject of the statement, Plaintiffs do not have a substantial need for
the statement because his deposition testimony should provide them with the substantial
equivalent. See Fed. R. Civ. P. 26(b)(3)(A)(ii).
1

Accordingly, Defendants’ objection to production is SUSTAINED.

October 12, 2017.
s/ Michael R. Merz
United States Magistrate Judge

2