Chester et al v. Beard et al

Filing 156

MEMORANDUM OPINION - It is ORDERED that the Plaintiffs emergency motion for discovery is GRANTED in part in that the Defendants are directed to identify the sources of the pharmacological agents identified by the Commonwealth in its death penalty pro tocol to the Plaintiffs counsel, subject to a thefollowing conditions: It is hereby further ORDERED that any documents disclosing this informationshall be marked CONFIDENTIAL, shall be used solely for the purpose ofpreparation and trial of this litig ation and for no other purpose whatsoever, and shallnot be disclosed to any person with the exception of the following individuals:(1) the counsel of record in this action; and(2) Judges, Magistrate Judges, law clerks and other personnel of the Court ;without prior approval of the Court. Individuals authorized to review confidential information pursuant to this Protective Order shall hold such confidential information in confidence and shall not divulge the confidential information, either orally or in writing, to any other person, entity or government agency, other than those listed above, unless authorized to do so by Court Order. Signed by Magistrate Judge Martin C. Carlson on November 1, 2012. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK ROBERT CHESTER, et al.,

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Plaintiffs
v.
JEFFREY BEARD, et al.,
Defendants

Civil No. 1:08-CV-1261

(Chief Judge Kane)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of Facts and of the Case

This case is a civil rights action brought by the Plaintiffs challenging the
constitutionality of Pennsylvania’s death penalty protocol. On October 23, and
October 26, 2012, discovery disputes in this case were referred to the undersigned for
resolution.
The events which precipitated this referral after four year of litigation, and now
inspire urgency in this matter, can be simply stated: On September 5, 2012, the
Defendants served upon the Plaintiffs a second amended Department of Corrections
Lethal Injection Protocol dated August 28, 2012 (the “August 2012 Protocol”), which
by its terms “supersedes all prior versions” of the execution protocol to be used by
the Commonwealth of Pennsylvania. One week later, on September 11, 2012, a death
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warrant issued for Hubert Michael, a member of the Plaintiff class in this case,
inmates awaiting execution in Pennsylvania. Michael’s execution is currently
scheduled to take place on November 8, 2012. The confluence of these two
events–the recent revision of the death penalty protocol coupled with the scheduled
execution of Mr. Michael–created significant time constraints, both for the Court and
for all parties to this litigation, in addressing the issues of constitutional dimension
raised by the Commonwealth’s revised proposed death penalty protocol.
Upon receipt of the September 2012 Protocol, the Plaintiff delayed for several
weeks, until October 1, 2012, when the Plaintiffs served a Third Set of Interrogatories
and Document Requests on Defendants. These discovery requests included 20
Interrogatories and 22 Requests for Production of Documents, all of which derived
from the most recent August 2012 Protocol. These discovery demands were then
discussed by the parties during a telephone conference with the District Court on
October 11, 2012, at which Defendants’ represented that they would serve their
Responses to Plaintiffs’ Third Set of Interrogatories and Document Requests on
October 17, 2012. When the Defendants served their Responses to Plaintiffs’ Third
Set of Interrogatories and Document Requests on October 17, 2012, the Defendants
objected to numerous of these requests largely on the ground that when considered
in combination with Defendants’ prior discovery requests, they exceeded the
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permissible total number (25) of Interrogatories and Requests for Production of
Documents authorized by the District Court’s October 23, 2009 Case Management
Order in this litigation.
Presented with this initial response from the Commonwealth, on October 22,
2012, Plaintiffs filed an emergency motion seeking leave to serve additional
interrogatories and requests for production of documents. (Doc. 135.) In this motion,
the Plaintiffs represented that the newly propounded discovery requests were
necessitated by changes that the Commonwealth of Pennsylvania made recently with
respect to its death-penalty protocol. Plaintiffs further represented that this matter
was particularly urgent, and time was of the essence in discovering the information
sought, because the Commonwealth has issued a death warrant scheduling the
execution of Hubert Michael, Jr. for November 8, 2012. Finally, Plaintiffs argued
that the parties had clearly contemplated the necessity of additional discovery into the
death penalty protocol once a revised protocol was issued by the Commonwealth. In
this regard, Plaintiffs observed that on August 18, 2011, the District Court entered an
Order granting the parties’ stipulated motion prepared by Defendants for the
opportunity to take additional discovery regarding the new execution protocol once
that protocol was promulgated. (Doc. 73.) That August 18, 2011 Order stated that
“[a]ny additional discovery regarding the new policy shall be completed within 90
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days of Plaintiffs’ counsel receiving from Defendants a copy of the new policy, and
Plaintiffs’ new or supplemental expert report shall be served within 90 days of
Plaintiffs’ counsel receiving from Defendants a copy of the new policy.” (Id.)
Presented with this emergency motion, and confronted by a scheduling conflict
that arose immediately following the submission of the motion, the District Court
referred the emergency motion to the undersigned for initial and prompt
consideration. We convened the parties for a telephone conference at 2:30 p.m. on
October 24, 2012, to address Plaintiffs’ motion and Defendants’ opposition thereto.
During this call, after hearing argument from all parties, the Court instructed the
parties that Defendants’ objections to the proposed discovery would be overruled to
the extent they were based solely on limitations set forth in a case management order
issued almost exactly three years ago, in light of the undisputed changed
circumstances presented in this case with respect to both the Commonwealth’s newly
developed death-penalty protocol and the impending execution of Mr. Michael.
However, we also instructed Plaintiffs that they would be directed immediately to
supplement their motion by submitting under seal carefully tailored discovery
requests, requests that may have now been narrowed by information that the
Commonwealth has already provided. The Court thereafter instructed Defendants to
be prepared promptly to offer substantive objections to Plaintiffs’ discovery requests,
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to ensure that the Court was in the position to make an informed judgment with
respect to Plaintiffs’ discovery request without undue delay, mindful of the
compressed nature of this issue in light of the pending execution of Hubert Michael,
Jr.
The Plaintiffs responded to this order by filing under seal a more narrowly
tailored set of discovery demands directed to the Defendants. These latest discovery
requests reduced the total number of these discovery demands from 42 interrogatories
and requests for production of documents to 24 interrogatories and requests for
production of documents.
Having been reassigned by the District Court to address this particular dispute
on Friday, October 26, 2012, we convened a conference call with counsel on Monday,
October 29, 2012. During this call we addressed with counsel how they should
endeavor to narrow and resolve discovery issues in this time-sensitive litigation while
confronting the logistical hurdles presented by an unprecedented weather event, the
impact of Hurricane Sandy. The parties have ably responded to these challenges.
Thus, with the Plaintiffs’ requests narrowed in this fashion, the Commonwealth has
reported to the Court that it has provided substantive responses to many of these
discovery demands. The parties have, however, jointly identified for the Court one
issue that remains unresolved.
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That remaining unresolved issue relates to the Plaintiffs’ request for
information regarding the sources of supply for the pharmacological agents used by
the Commonwealth in its lethal injection protocol. With respect to this issue the
contrasting views of the parties are ably, and starkly, drawn. The Plaintiffs’ contend
that confirming the legitimacy and the bona fides of the supplier of these elements is
a critical component of any substantive analysis of this death penalty protocol, since
these supply source(s) in large measure may determine the quality and efficacy of the
drugs used in this process.
The Defendants, in turn, argue that this information should not be disclosed
because it is cloaked in confidentiality by state statute, 61 Pa. C. S. § 4305 (c), which
provides that “The identity of department employees, department contractors or
victims who participate in the administration of an execution pursuant to this section
shall be confidential.” Defendants also support this assertion of privilege with a
declaration from the Secretary of the Pennsylvania Department of Corrections, John
Wetzel, which notes the applicable provisions of state law, details the confidentiality
which the Department attaches to this information, and highlights concerns that
potential suppliers may be reluctant to provide these drugs in the future if their
identities are broadly disclosed. The Wetzel declaration then candidly acknowledges
an immutable fact in this litigation; namely, that the Defendants have previously
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shared other sensitive information with Plaintiffs’ counsel subject to confidentiality
agreements, which have been consistently honored by all parties. Notwithstanding
this past compliance with confidentiality requirements, the declaration notes that:
While I recognize that the circumstances pursuant to which the Court is
proposing to order defendants to supply the identifying information
involved in this case is designed to keep that information confidential,
and I have no reason to doubt that those bound by the Court's order
would strive to honor the obligations it would impose, given the large
number of individuals to whom the information would be provided,
there is, in my judgment, a significant possibility of accidental or
inadvertent disclosure of the information which would impair the DOC's
ability to obtain the drugs it requires in order to meet its obligations
under state law. It is my belief that if the identities of the supplier are
revealed in this litigation, the supplier will become so concerned over
the potential for exposure of their identities that they will no longer
agree to provide the necessary drugs in the future.
(Doc. 153.)
The parties completed their submissions to the Court regarding this issue on
October 31, 2012. Therefore this matter is now ripe for resolution. For the reasons
set forth below, we will order disclosure of this information, subject to a
confidentiality order.
II.

Discussion

Rule 26(b)(1) of the Federal Rules of Civil Procedure defines both the scope
and limitations governing the use of discovery in a federal civil action:
(1) Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any
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nonprivileged matter that is relevant to any party’s claim or defense –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)( C ).

The instant dispute calls upon the Court to exercise its authority under Rule 26 of the
Federal Rules of Civil Procedure to regulate discovery in this case. Issues relating
to the scope of discovery permitted under the Rules rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). A
court’s decisions regarding the conduct of discovery will be disturbed only upon a
showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129,
134 (3d Cir. 1983). This far-reaching discretion extends to rulings by United States
Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
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only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained through
discovery reaches only “nonprivileged matter that is relevant to any party’s claim or
defense”. Therefore, valid claims of privilege still cabin and restrict the Court’s
discretion in ruling on discovery issues. Furthermore, the scope of discovery
permitted by Rule 26 embraces all “relevant information” a concept which is defined
in the following terms: “Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth., 203
F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that
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the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the
potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573
(D.Kan. 2009).
Judged against these benchmarks, we find that disclosure of the identity of the
supplier(s) of the pharmacological agents used in this process is relevant to this
litigation where it is incumbent upon the Plaintiffs to show that this particular death
penalty protocol , “violates the Eighth Amendment, [because], the [protocol] must
be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise
to ‘ sufficiently imminent dangers.’ Helling v. McKinney, 509 U.S. 25, 33, 34–35,
113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (emphasis added). [Thus] to prevail on such
a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable
risk of harm’ that prevents prison officials from pleading that they were ‘subjectively
blameless for purposes of the Eighth Amendment.’ Farmer v. Brennan, 511 U.S. 825,
842, 846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).” Baze v. Rees, 553 U.S.
35, 49-50 (2008). Thus, understanding and evaluating the drugs used in a lethal
injection protocol is an integral part of this constitutional analysis, and identifying
where the drugs came from seems reasonably calculated to inform our understanding
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of this important issue, an issue that lies at the heart of the Eighth Amendment
analysis the District Court is called upon to perform here.
Given the relevance of this information to the issues presented in this litigation,
we must then assess whether the confidentiality concerns raised by the Defendants
outweigh the relevance of this information, and justify wholesale withholding of this
information. In considering this issue, which rests in large part upon state law
confidentiality provisions, it is also well-settled that:
Because, . . . , discovery disputes in federal courts are governed by
federal law, especially the Federal Rules of Civil Procedure and the
Federal Rules of Evidence, the state statutory confidentiality provisions
that have been invoked by [the parties] . . . do not directly govern the
present dispute.
Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000).
Thus, the Commonwealth’s citation to the Pennsylvania statute which provides
that “[t]he identity of department employees, department contractors or victims who
participate in the administration of an execution pursuant to this section shall be
confidential”, 61 Pa. C. S. § 4305 (c), constitutes only the beginning, and not the end,
of our legal analysis. While we are instructed to consider the persuasive force of state
laws that impose confidentiality on certain classes of information, those laws do not
control in assessing privilege claims in federal court. Moreover, in conducting this

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assessment we are mindful of the fact that the appropriateness of deference to a state's
law of privilege is diminished when the litigation involves a constitutional challenge
to some proposed state action. Indeed, in this setting, where the constitutionality of
some state action is at issue, it has been aptly observed that: “[T]here is a ‘special
danger’ in permitting state governments to define the scope of their own privilege”.
Pearson, 211 F.3d at 68.
Instead, we believe that the Commonwealth’s objections to this disclosure must
be weighed using the standards defined by the federal courts for the governmental
privilege relating to state law enforcement records. Those standards acknowledge
a governmental privilege but enjoin courts to balance the confidentiality of
governmental records against the rights of a civil rights litigant by considering:
(1) the extent to which disclosure will thwart governmental processes
. . . ; (2) the impact upon persons who have given information of having
their identities disclosed; (3) the degree to which governmental selfevaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or
evaluative summary; (5) whether the party seeking the discovery is an
actual or potential defendant in any criminal proceeding either pending
or reasonably likely to follow from the incident in question; (6) whether
the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the
investigation; (8) whether the plaintiffs suit is non-frivolous and brought
in good faith; (9) whether the information sought is available through
other discovery or from other sources; and (10) the importance of the
information sought to the plaintiffs case.

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Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973).
In this case, a number of these considerations weigh heavily in favor of
disclosure of this information, subject to appropriate confidentiality safeguards. At
the outset, we find that the information sought is relevant to non-frivolous legal
claims that are brought in good faith. We further conclude that this information is not
available through other discovery from other sources, and the information is
important to the adjudication of the issues raised in this case.
We further find that none of this information, which simply identifies
pharmacological vendors, intrudes upon deliberative or self-evaluative governmental
precesses in a way which would compel non-disclosure. Nor would disclosure of this
information inappropriately encroach upon on-going criminal cases or investigations,
since those cases have long ago reached finality with the imposition of the sentence
whose implementation is the subject of this litigation.
Given all of these factors which weigh in favor of disclosure of this
information, the Defendants rely largely upon a concern that this disclosure will have
an adverse impact upon these third party vendors, and may therefore thwart
government efforts to secure these products in the future to avoid this disclosure.
These concerns, while substantial and sincere, do not in our view call for the
wholesale denial of this information which may be relevant to a fully-informed
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consideration of the constitutionality of Pennsylvania’s death penalty protocol. These
concerns do, however, strongly caution against public dissemination of this
information, and suggest that the information should be shared with counsel for the
Plaintiffs subject to a strict confidentiality order prohibiting further disclosure of this
information without the express approval of the Court.
In this regard, we note that confidentiality agreements are not new to this
litigation. Quite the contrary, we are informed by counsel that sensitive identifying
information has been disclosed to Plaintiffs’ counsel in the past subject to
confidentiality agreements. Like Corrections Secretary Wetzel, we “have no reason
to doubt that those bound by the Court's order would strive to honor the obligations
it would impose.” (Doc. 153.) Indeed, the parties have honored such confidentiality
agreements throughout the course of this litigation, and we are fully equipped to take
steps to ensure that the parties continue to meet these obligations in the future.
III.

Conclusion

Accordingly, for the foregoing reasons, it is ORDERED that the Plaintiff’s
emergency motion for discovery is GRANTED in part in that the Defendants are
directed to identify the sources of the pharmacological agents identified by the
Commonwealth in its death penalty protocol to the Plaintiffs’ counsel, subject to a the
following conditions:
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It is hereby further ORDERED that any documents disclosing this information
shall be marked “CONFIDENTIAL,” shall be used solely for the purpose of
preparation and trial of this litigation and for no other purpose whatsoever, and shall
not be disclosed to any person with the exception of the following individuals:
(1) the counsel of record in this action; and
(2) Judges, Magistrate Judges, law clerks and other personnel of the Court;
without prior approval of the Court. Individuals authorized to review confidential
information pursuant to this Protective Order shall hold such confidential information
in confidence and shall not divulge the confidential information, either orally or in
writing, to any other person, entity or government agency, other than those listed
above, unless authorized to do so by Court Order. See Jon Feingersh Photography,
Inc. v. Pearson Educ., Inc., 281 F.R.D. 234, 238 (E.D. Pa. 2012)
So ordered, this 1st day of November 2012.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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