In Re: Ohio Execution Protocol Litigation

Filing 838

RULINGS ON DEFENDANTS' CLAIM OF PRIVILEGE. Signed by Magistrate Judge Michael R. Merz on 12/20/2016. (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

RULINGS ON DEFENDANTS’ CLAIMS OF PRIVILEGE

This capital § 1983 case is before the Court on various claims of privilege made by the
State of Ohio Defendants since the Status Conference of October 3, 2016. See, e.g., Privilege
Log at ECF No. 814-2, Transcript of the December 16, 2016, Deposition of Stephen Gray (ECF
No. to be assigned upon filing). The Court heard oral argument on the privilege issues on
December 19, 2016.
The first such invocation of privilege was in the Defendants’ Motion for Protective Order
filed November 4, 2016 (ECF No. 705). Made under Fed. R. Civ. P. 26(c), the Motion requested
an order that
renders confidential, and not subject to disclosure, the identities of
the persons and entities who provided these drugs or who may
provide execution drugs to the Defendants in the future.
Defendants have reason to believe that revealing the identities of
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these persons or entities could substantially interfere with efforts to
obtain additional quantities of the drugs or even prevent the State
from obtaining the necessary drugs, and thereby harm the State’s
interest in the enforcement of its criminal judgment.
Id. at PageID 21390. The drugs already provided that are referred to in the preceding paragraph
are midazolam, rocuronium bromide, and potassium chloride which the State Defendants
represent they have obtained in sufficient quantities from FDA approved manufacturers to
complete the executions of the above-named three Plaintiffs. Even though these drugs were not
specified in the execution protocol at the time they were obtained and not thereafter until
October 7, 2016, Defendants ask the Court to read Judge Frost’s Protective Order of October 26,
2015 (ECF No. 629) as applying to them because the same rationale exists for protecting them as
existed for protecting the identities of potential suppliers of thiopental sodium or pentobarbital,
whether compounded or manufactured, before the Protective Order was entered. To the extent
Judge Frost’s Protective Order could not be read as protecting the identity of these drugsupplying entitles, Ohio asked the Court to recognize the privilege created by Ohio Revised
Code § 2949.221 and 2949.222. Id. at PageID 21398.
On November 28, 2016, the Court denied this Motion without prejudice to its renewal
after decision by the Sixth Circuit of the pending interlocutory appeal in this case, captioned
Fears v. Kasich, Sixth Circuit Case No. 16-3149 (Decision and Order, ECF No. 741). On
December 19, 2016, given that no decision has yet been made in Fears, this Court entered a stay
of execution pendente lite to protect the decisional process of the Sixth Circuit (ECF No. 834).
However, the Court has not vacated the preliminary injunction hearing set for January 35, 2017, and therefore intensive discovery is proceeding. On December 16, 2016, the Court
presided at the deposition of Stephen Gray, legal counsel for the Ohio Department of
Rehabilitation and Corrections, and was called upon to make dozens of privilege rulings. The
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Court can no longer wait for a Sixth Circuit decision, given the pendency of so much discovery.
Accordingly, the Court makes the following rulings on questions of privilege which have been
raised in this case, subject to revision in the event of an inconsistent ruling in Fears:
1.

Federal law, not state law, governs the recognition of any privilege to refuse to provide
discoverable information in this case. The case is a federal question action under 42
U.S.C. § 1983. Even though there are supplemental state law claims made, federal
privilege law governs all privilege questions in the case. Kelly v. San Jose, 114 F.R.D.
653 (N.D. Cal. 1987)(Brazil, M.), citing Kerr v. U.S. District Court for the Northern
District of California, 511F.2d 192 (9th Cir. 1975), aff'd 426 U.S. 394 (1976); Wright &
Graham, Federal Practice and Procedure: Evidence § 5685, citing Breed v. District
Court, 542 F. 2d 1114 (9th Cir. 1976).

2.

Defendants are not entitled to the “state secrets” privilege as to any information
discoverable in this case. That category of absolute privilege has been reserved for
military and/or national security information in the possession of the United States
Government since its recognition by the Supreme Court in United States v. Reynolds, 345
U.S. 1 (1953). However, many federal courts have recognized a qualified privilege for
confidential government information, sometimes called the official information privilege.
See Kelly, supra. A list of factors to consider in applying such a qualified privilege is
found in Kelly at 663 quoting Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa.
1973)(Becker, D.J.).

This Court has recognized a qualified privilege for police

department internal affairs files. Urseth v. City of Dayton, 110 F.R.D. 245, 252 (S.D.
Ohio 1986)(Rice, J.). The Supreme Court in Kerr, supra, recognized such a qualified
privilege for parole board files.

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Plaintiffs’ argument that such a qualified privilege must be invoked by a department head
or other high executive official, while appropriate to the absolute state secrets privilege,
is not appropriate for governmental information of a less sensitive nature. In this case the
invocation of the asserted privilege by counsel for the ODRC Defendants is sufficient,
especially in light of Attorney Madden’s representation that Director Mohr has approved
doing so.
3.

Ohio Rev. Code §§ 2949.221 and 2949.222 create a privilege and a classification of
information as confidential under Ohio law. This Court has authority in ruling on a
motion for protective order under Fed. R. Civ. P. 26(c) to recognize and accommodate
the interests of Ohio in obtaining the drugs necessary to carry out the death sentences
imposed on Plaintiffs by lethal injection, the only method of execution presently
authorized by Ohio law. However, such accommodation is a matter of comity, not
compulsion.

In particular, reading the provisions of Ohio Revised Code §

2949.221(A)(B)(2) and (3) as prohibiting necessary discovery in this or similar cases,
would raise serious constitutional questions and the Court declines to read the statute in
that way.
4.

To the extent this Court recognizes, as a matter of comity, the confidentiality interests
sought to be protected by §§ 2949.221 and 2949.222, it will only recognize a qualified
privilege, defeasible by the needs, if any, of Plaintiffs in this case to obtain necessary
discovery. This is consistent with the position taken by Judge Frost in the Protective
Order: although he did not recognize a privilege, he protected the identity of suppliers
and potential suppliers of execution drugs from discovery under Fed. R. Civ. P. 26(c) for
what he perceived to be the same reasons that Ohio enacted H.B. 663, now codified at

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Ohio Rev. Code §§ 2949.221 and 2949.222. See ECF No. 629, PageID 19409. Although
Judge Frost’s Protective Order has been appealed on his own certification, it remains
presumptively valid.
5.

Judge Frost’s Protective Order does not by its terms apply to any execution drugs
obtained by Ohio prior to October 7, 2016, the date the Execution Protocol was last
amended. The Protective Order provides it will apply to any drugs other than thiopental
sodium or pentobarbital which are amended into the Protocol, but no such amendment
occurred prior to October 7, 2016. Judge Frost wrote:
At this time, “the specific drugs, compounded or not, that Ohio
indicates in its execution protocol it will use or will potentially
seek to use to carry out executions” means pentobarbital and
thiopental sodium, compounded or not. If Ohio alters its execution
protocol to include or substitute other drugs, those drugs would fall
under the scope of this protective order unless Plaintiffs persuade
this Court that the new drug(s) present some specific necessity for
the source-and identity information Plaintiffs would seek.
The drugs Ohio has obtained for use in the executions of the three named Plaintiffs were,
according to Ohio’s counsel, obtained before the Protocol was amended.

6.

Plaintiffs have not yet demonstrated the need for the identity of any actual supplier of
execution drugs since January 1, 2015. Defendants’ representation is that the execution
drugs presently in hand were procured from FDA licensed manufacturers. The Court
finds Plaintiffs’ argument to the contrary, most recently on December 19, 2016, to be
unpersuasive, as did Judge Frost. Thus although Judge Frost’s Protective Order does not
literally cover the 2016 suppliers of midazolam, rocuronium bromide, and potassium
chloride, the Court EXTENDS the Protective Order from its entry date forward to protect

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from discovery as to those suppliers the same information protected by Judge Frost’s
Order for suppliers and potential suppliers of thiopental sodium or pentobarbital.1
7.

The Court rejects Plaintiffs’ argument that §§ 2949.221 and 2949.222 do not apply to this
case because they do not include language specifically making them applicable to
pending cases. Plaintiffs’ authority for that position, taken from the highly contentious
“tort reform” litigation before the Ohio Supreme Court, is inapposite. This case, although
it is now assigned one case number, is the consolidation of many cases filed separately or
which would have been filed separately had the Court not allowed intervention. Given
the backlog of death-sentenced inmates and the “sunset” provisions in §§ 2949.221 and
2949.222, the act would have had no impact at all if it did not apply to persons already on
death row when it was adopted.

8.

The Court likewise rejects Plaintiffs’ narrow reading of Goodyear Tire & Rubber Co. v.
Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003), as limited to blocking third-party
discovery of settlement negotiation communications. While that was the issue squarely
presented by the appeal, the language of the opinion recognizes a privilege with a broader
reach and the rationale relied on by the Court is broader than the third-party situation.
Apart from Goodyear, Judge Frost imposed an absolute confidentiality requirement for
the settlement discussions among the parties in the latter half of 2014 which remains in
full force. See, e.g. ECF No. 483.

December 20, 2016.
s/ Michael R. Merz
United States Magistrate Judge
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The Court had previously denied Defendants’ renewed post-amendment motion for protective order (ECF No. 705)
with the proviso that it could be re-filed once the Sixth Circuit had decided Fears v. Kasich. Given the discovery
needed to be accomplished before the January 3-5, 2017, preliminary injunction hearing, this Court needs to act
now.

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