Moeller v. Weber

Filing 280

ORDER RE: Production of Information Concerning Lethal Injection Drug. Signed by U. S. District Judge Lawrence L. Piersol on 7/12/2012. (MWT)

FILED
JlIL 12 2012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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DONALD E. MOELLER,
Plaintiff,
-vs­
DOUGLAS WEBER, Warden,
South Dakota State Penitentiary,
DENNIS KAEMINGK, Secretary of
the South Dakota Department of
Corrections in his official capacity,
and DOES 1-20, unknown employees or
agents of the South Dakota Department
of Corrections,
Defendants.

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CIV.04-4200

ORDER RE: PRODUCTION
OF INFORMAnON CONCERNING
LETHAL INJECTION DRUG

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Pending before the Court are a number of motions for protective orders (Doc. 162,212) filed
by Defendants and motions to compel discovery filed by Plaintiff (Doc. 175 , 194) in this action
under 42 U.S.c. § 1983 for declaratory and injunctive relief concerning South Dakota's lethal
injection protocol. The Court has granted Defendants' requests for protective orders with regard to
prohibiting disclosure ofthe identity of people on execution teams. Doc. 92 and 188. Discovery has
been conducted, and at one point Plaintiff moved this Court to hold his initial Motion to Compel in
abeyance after the parties conferred by telephone and it appeared supplemental discovery would be
received from the Defendants. Doc. 180. A number of issues have not be resolved, however, and
Plaintiff contends that this Court must compel discovery on certain matters in which the Defendants
have refused to comply with his requests, and that summary judgment cannot be entered against him
without discovery on relevant matters. Both parties have sought relief concerning discovery of the
acquisition of lethal injection drugs. Some of these issues have been resolved. For instance, the

Department of Corrections disclosed the source of its current sodium thiopental stock after the
manufacturer disclosed itself in the Wall Street Journal.
As the Defendants now contend that Moeller will be executed usmg the one-drug
pentobarbital protocol, the Court will focus on the discovery issues concerning pentobarbital.
Moeller seeks information regarding the source ofthe pentobarbital, how and when it was acquired,
its location and storage, and the manufacturer's instructions for the drug. In addition to resisting
discovery on the ground of relevancy, Defendants have contended that revealing the sources and
suppliers of lethal injection drugs subjects them to threats and harassment by death penalty
opponents. Defendants have further contended that revealing the storage and location of the drug
may create security problems within the penitentiary.

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The requested discovery appears reasonably calculated to lead to the discovery ofadmissible
evidence. See Fed. R. Civ. P. 26(b)(l). However, the Defendants have presented valid reasons to
restrict the requested discovery. In moving for a protective order, the Defendants have suggested
making in camera disclosures to the Court. The Court believes that an in camera inspection of the
requested discovery materials concerning pentobarbital would be useful and would allow the Court
to determine whether some information may be redacted and whether other information may be
provided to counsel for Moeller under conditions that will ensure that the pentobarbital sources and
suppliers not be harassed and that the security ofthe penitentiary not be compromised. Accordingly,
IT IS HEREBY ORDERED that within one week of the date of this Order, counsel for the
Defendants provide to the Court the manufacturer's instruction for the pentobarbital it
intends to use in Moeller's execution as well as the other information concerning the
pentobarbital that Moeller has sought in discovery.
Dated this

T1
I(7- day of July, 2011.
BY THE COURT:'!),

~~~o-

awrence L. Piersol
United States District Judge

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