Warner et al v. Gross et al

Filing 376

ORDER granting in part and denying in part 361 Plaintiffs' Motion to Compel Production of Documents. Signed by Honorable Stephen P. Friot on 12/7/2020. (llg)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
Before the court is the plaintiffs’ motion to compel production of documents,
doc. no. 361. The defendants have responded to the motion, doc. no. 370, and
plaintiffs have replied, doc. no. 373.
The motion seeks an order compelling production of documents in two
categories: (i) documents withheld on the basis of the deliberative process privilege,
and (ii) documents responsive to Rule 34 Request No. 10, which generally seeks
production of documents relating to defendants’ decisions with respect to previous
iterations (and revisions) of Oklahoma’s lethal injection protocol. Those two prongs
of the motion are addressed below.
I.
Deliberative Process Privilege
Defendants assert that twenty-four documents are exempt from production by
application of the deliberative process privilege, a common law privilege.1 Plaintiffs
argue that this privilege may only be invoked by federal governmental agencies.
They argue the privilege therefore not available to the defendants in this action, who

1

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (“Although this privilege is most
commonly encountered in Freedom of Information (‘FOIA’) litigation, it originated as a common
law privilege.”).

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are state officials named in their official capacities only. This is a threshold issue
because if plaintiffs are correct and the privilege is not available to the defendants
as a matter of law, then that is the end of the matter and the twenty-four documents
must be produced.
For the reasons stated below, the court concludes the deliberative process
privilege may be asserted by state officials such as the defendants in this action.
First, in federal actions, federal common law determines relevant privileges
unless state law supplies the rule of decision. Rule 501, Fed. R. Evid. Federal law
supplies the rule of decision in this case, so the court looks to federal common law
to determine whether a particular privilege is available. Federal common law
recognizes the existence of the deliberative process privilege. See, e.g., Dept. of the
Interior and Bureau of Indian Affairs v. Klamath Water Users Protective
Association, 532 U.S. 1, 8-9 (2001) (discussing the deliberative process privilege in
a Freedom of Information Act case).2
Second, the rationale for the privilege applies equally to federal- and statelevel decision-makers. The purpose of the privilege is to protect the deliberative and
decision-making processes of government. N.L.R.B. v. Sears, Roebuck & Co., 421
U.S. 132, 150 (1975); and see, Smith v. Rogers, 2017 WL 2937957, **3-4 (W.D.
Pa. July 10, 2017) (court saw no reason why state or local governments would not
also be entitled to assert the privilege given the privilege’s motivating rationale;
collecting cases, at *4, n.4, that have allowed local and municipal governments to
assert the privilege). As the Supreme Court observed in Klamath, 532 U.S. at 9, the
object of the privilege is to enhance the quality of agency decisions by protecting
open and frank discussion among those who make them within the government.

2

A FOIA exemption permits certain types of documents to be withheld if conditions are met,
including the requirement that the document fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds the document.
Klamath, 532 U.S. at 8.

2

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Thus, the rationale for the privilege is one which would foster better decisionmaking at all levels of government.
Third, the Supreme Court’s descriptions of the privilege do not suggest that
the privilege is only available to the federal government. To the contrary, the Court
describes the privilege as applying to “governmental” decisions and officials. See,
e.g., Klamath at 8-9, quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150
(1975) (“deliberative process covers ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated”; the “privilege rests on the
obvious realization that officials will not communicate candidly among themselves
if each remark is a potential item of discovery”).
Fourth, while plaintiffs cite Fish v. Kobach, 2017 WL 1373882 (D. Kan. April
17, 2017), as a case within this circuit which holds that the privilege only protects
pre-decisional deliberations of federal agencies, Fish is not precedential. Moreover,
two of the three cases Fish cites for the proposition that only United States authorities
may invoke the privilege do not necessarily support that proposition as those cases
turn on statutory language within the FOIA. See, id. at *5, n.37. Furthermore, at
least one district level decision within this circuit has addressed the privilege in the
context of documents held back by a municipality, implicitly presuming that the city
could invoke the privilege if other requirements were met, which the magistrate
judge held he could only determine by reviewing the documents. See, Leadholm v.
City of Commerce City, Colorado, 2017 WL 3839454 (D. Colo. September 1, 2017)
(in a federal question case, federal law controls the issue of privilege; federal
common law recognizes the deliberative process privilege; magistrate judge would
review documents to determine whether they fell within the privilege).
For these and other reasons, the court concludes that the deliberative process
privilege is potentially available to the defendants in this action. Accordingly, the
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next step is to determine whether the twenty-four documents meet other
requirements necessary for the privilege to operate.3
In re Sealed Case, 121 F.3d 729 (D. C. Cir. 1997), describes these
requirements as follows.
Two requirements are essential to the deliberative process
privilege: the material must be predecisional and it must be
deliberative. … The deliberative process privilege does not
shield documents that simply state or explain a decision the
government has already made or protect material that is purely
factual, unless the material is so inextricably intertwined with the
deliberative sections of documents that its disclosure would
inevitably reveal the government's deliberations.
121 F.3d at 737 (emphasis added; citations and quotations omitted).
If the documents meet the above requirements, the court must then determine
whether the privilege is overcome by a sufficient showing of need on the part of the
plaintiffs.
The deliberative process privilege is a qualified privilege and can
be overcome by a sufficient showing of need. This need
determination is to be made flexibly on a case-by-case, ad hoc
basis. Each time the deliberative process privilege is asserted the
district court must undertake a fresh balancing of the competing
interests, taking into account factors such as the relevance of
the evidence, the availability of other evidence, the seriousness
of the litigation, the role of the government, and the possibility
of future timidity by government employees. For example,
where there is reason to believe the documents sought may shed
light on government misconduct, the privilege is routinely
denied, on the grounds that shielding internal government
3

The court also notes that, as defendants have pointed out, “there is no reason why state
government—a government of general power that preexists the federal government—should have
less privilege than the federal government—a government of limited enumerated powers that is
constituted by the states.” Doc. no. 370, at 5. This historically and constitutionally correct
observation is, by itself, sufficient to undermine the plaintiffs’ rather emphatic (and meritless)
argument that the deliberative process privilege is the exclusive prerogative of agencies of the
federal government. Doc. no. 361, at 3.

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deliberations in this context does not serve the public's interest in
honest, effective government.
Id. at 737-38 (emphasis added; citations, quotations and footnotes omitted).
Keeping these principles in mind, the court will review the twenty-four
documents to determine whether the privilege is appropriately invoked. The court
will require production of the discoverable portions of any of the documents which
may be, wholly or in part, unprotected by the privilege. The court intends to
undertake that review promptly. However, in the interest of avoiding unnecessary
delay (and bearing in mind the requirements of the scheduling order entered on
August 14, 2020), the court sees no reason to defer entry of this order.
II.
Request No. 10
The second prong of the motion seeks an order compelling discovery
responsive to plaintiffs’ document Request No. 10. That request seeks:
All Documents and Communications Concerning any
review, analysis, investigation, consideration, assessment,
discussion, determination, or evaluation in connection
with: (a) the decision to use sodium pentothal/thiopental
between 1990 and 2010 as the first drug in Oklahoma’s
three-drug execution protocol; (b) the decision in 2010 to
begin using pentobarbital in place of sodium
pentothal/thiopental as the first drug in Oklahoma’s threedrug execution protocol; (c) the decision in 2010 to
include the option of midazolam as the first drug in
Oklahoma’s three-drug execution protocol; and (d) the
decision in 2014 to amend the then-existing execution
protocol to increase the dosage of the paralytic
vecuronium bromide from 40 milligrams to 100
milligrams.
As can be seen, the first two subdivisions of Request No. 10 relate to the
decision to use sodium pentothal and to the decision, in 2010 (or earlier), to begin
using pentobarbital. The only justification given in plaintiffs’ motion for these two
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subdivisions of Request No. 10 is that documents responsive to those two
subdivisions would be “germane to the feasibility and efficacy of those other
execution drugs.” Doc. no. 361, at 7. However, defendants dispute only the
availability of those drugs, not their feasibility or efficacy. See doc. no. 370, at 10.
In reply, plaintiffs assert a new ground for discovery of documents responsive
to these two subdivisions of Request No. 10. They assert that “the requested
discovery is germane to whether the three-drug midazolam protocol creates a
significant risk of increased punishment from the use of pentothal/thiopental and/or
pentobarbital.” Doc. no. 373, at 9. This new contention is asserted for the first time
in a reply brief and is, for that reason, disregarded. See, Graves v. Colvin, 2013 WL
3992424 (W.D. Okla. Aug. 2, 2013) and cases there collected. However, on its own
merits, this contention would be turned aside. It seeks discovery of documents
relating to decisions made ten or more years ago, involving drugs the defendants do
not presently intend to use to execute plaintiffs. The relevance of those documents,
even in the somewhat broader discovery sense, is marginal at best. This implicates
the court’s discretion to evaluate the proportionality of the discovery sought–even if
relevant–to “the needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.” Rule 26 (b)(1), Fed.R.Civ.P. The court, undertaking that balancing,
concludes quite readily that plaintiffs’ belated argument for compelling discovery
responsive to the first two subdivisions of Request No. 10 is unavailing.
The court also declines to compel discovery of additional documents
encompassed by subdivision (c) of Request No. 10. Plaintiffs have already received
very substantial discovery relating to midazolam and the decision to incorporate
midazolam into the Oklahoma protocol. The court distinctly recalls its involvement
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in those discovery matters at an earlier stage of this case, and notes that, at a more
recent stage of this case, it required defendants to update that discovery. The
discovery now at issue with respect to subdivision (c)–if there are in fact any
additional documents to be had–would relate to decisions made more than ten years
ago as to matters going essentially to the reasoning and factual basis for the decision
to use midazolam. However, the relevant issue is whether, objectively, the effect of
midazolam (taking into account the parties’ contentions with respect to
pharmacology and pharmacokinetics, among other things), when used as the first
drug in the execution protocol, is to subject the prisoner to (i) a constitutionally
impermissible level of risk of (ii) a constitutionally impermissible level of pain.
Documents relating to decisions made more than ten years ago would hardly seem
to have any particular bearing on this issue, especially given the fact that, in the last
ten years, authorities in various states have accumulated a significant body of
experience using midazolam as a lethal injection drug.
Essentially the same reasoning applies to subdivision (d) of Request No. 10.
The pharmacological effect of vecuronium bromide is well known.

That

pharmacological effect is readily susceptible of proof, and there can be little doubt
that evidence bearing directly on that issue has been produced and is, in any event,
available to plaintiffs’ counsel. Aside from that, it is also evident that plaintiffs’
curiosity with respect to subsection (d) is predominantly focused on an assay of the
subjective intent underlying the decision, six years ago, to increase the dosage of
vecuronium bromide, rather than the objective issue of the effect of vecuronium
bromide. Doc. no. 361, at 8. It is difficult to discern how documents relating to that
decision-making process have any real bearing on the issues that will make a
difference in this case.
Aside from the issues of relevance (in the Rule 26 sense) discussed above, the
court returns, with respect to subdivisions (c) and (d) of Request No. 10, to a
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proportionality analysis. The fact is that, over the six-year history of this case,
plaintiffs have received very substantial discovery, including recent supplementation
of discovery conducted several years ago. It is also worth mentioning that the focus
of this case is very much on the “here and now,” in terms of the dispositive issues as
to whether the defendants’ proposed method of execution poses a constitutionally
impermissible risk of a constitutionally impermissible level of pain. Subjective
thoughts from six or ten (or more) years ago, and facts as understood six or ten (or
more) years ago, will have little or nothing–more likely nothing–to do with the
outcome of this case. Taking into account the factors set forth in Rule 26(b), the
court is well satisfied that further document discovery, as to matters as dated as those
contemplated by the second two subdivisions of Request No. 10, is simply not
justified.
III.
Ruling
Plaintiffs’ motion to compel discovery, doc. no. 361, is GRANTED IN
PART AND DENIED IN PART. It is granted to the extent that the court will
undertake an in camera review of the documents withheld on the basis of the
deliberative process privilege and will require production of any portions of those
documents which are not protected by that privilege. The motion is denied in all
other respects.
IT IS SO ORDERED this 7th day of December, 2020.

14-0665p086.docx

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