McGehee et al v. Texas Department of Criminal Justice
Filing
16
MEMORANDUM OPINION AND ORDER granting 12 MOTION to Dismiss 1 Other Miscellaneous Relief, Pltfs Motion to Compel Compliance, denying 1 Motion to Compel. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JASON McGEHEE, et al.,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE,
Defendant.
August 21, 2018
David J. Bradley, Clerk
MISCELLANEOUS NO. H-18-1546
MEMORANDUM OPINION AND ORDER
This case arises from litigation filed by Arkansas death row
inmates ("Plaintiffs") in the United States District Court for the
Eastern
District
injection
of
Arkansas
protocol.
execution date.
None
challenging
of
the
inmates
that
State's
currently
lethal
face
an
Plaintiffs' complaint in the Arkansas case argues
that the State's lethal
injection protocol violates
the Eighth
Amendment's prohibition against Cruel and Unusual Punishment. 1
Arkansas state law provides for two alternative methods of
lethal injection:
the use of (1)
drug
"Midazolam,
process
followed
by
of
potassium
"a barbiturate" or (2) a three-
followed
chloride."
ARK.
by
vecuronium
CoDE ANN.
§
bromide,
5-4-617(c).
Arkansas' current lethal injection protocol employs the statutorily
endorsed three-drug cocktail.
Litigation in several jurisdictions
including Arkansas has challenged the use of midazolam, which is a
1
McGehee v. Hutchinson, 4:17-cv-00179-KGB (E.D. Ark.).
benzodiazepine sedative. 2
show that pentobarbital
The Arkansas lawsuit, in part, seeks to
the
substance used in Texas'
lethal
injection process - is a feasible, readily available alternative to
midazolam.
In conjunction with the Arkansas
2018,
Plaintiffs filed a
lawsuit,
subpoena duces
on February 22,
tecum on the defendant
Texas Department of Criminal Justice ("TDCJ") seeking disclosure of
information relating to Texas'
execution protocol,
including the
identity of the current supplier of the compounded pentobarbital
Texas
uses
in executions.
In
response,
Texas
disclosed
some
information, but did not reveal key details about the source of its
execution drugs, including the supplier's identity.
Plaintiffs initiated the instant lawsuit by filing a Motion to
Compel Compliance with Subpoena. 3
a
Dispositive
Motion
to
Compliance with Subpoena. 4
Dismiss
TDCJ has responded by submitting
Plaintiffs'
Plaintiffs have
Motion
to
Compel
filed an answering
2
See Grayson v. Warden, Commissioner, Alabama Doc, 869 F.3d
1204, 1210-11 (11th Cir. 2017) (describing use of, and concerns
about, the use of midazolam in executions).
3
Plaintiffs'
Motion to Compel Compliance
("Motion to Compel"), Docket Entry No. 1.
4
with
Subpoena
Texas Department of Criminal Justice's Dispositive Motion to
Dismiss Plaintiffs' Motion to Compel Compliance with Subpoena
("Motion to Dismiss"), Docket Entry No. 12. Plaintiffs argue that
the motion to dismiss is an "unorthodox (and not necessarily
proper) procedural move," but do not seek dismissal of the motion
on that basis.
See Plaintiffs' Answering Brief in Opposition to
the "Texas Department of Criminal Justice's Dispositive Motion to
Dismiss Plaintiffs' Motion to Compel Compliance with Subpoena"
(continued ... )
-2-
brief, 5 to which TDCJ has filed a reply. 6
Plaintiffs have requested
oral argument, but the parties' papers provide a sufficient basis
for a full and fair adjudication of the issues before the court.
After considering the facts,
the record,
and the applicable law,
the court will quash the subpoena issued by Plaintiffs.
I.
Adjudicating
the
Background
matters
now
before
the
court
requires
reviewing the nationwide history of Eighth Amendment challenges to
a state's method of execution,
the national efforts by advocacy
groups and inmates to curtail the use of lethal injection, and the
response by the states as suppliers for lethal injection chemicals
have dwindled.
The court will then turn to the developments in
Arkansas that have led to this action.
A.
Developments in Eighth Amendment Law
Throughout American history, several methods have been used to
carry out an inmate's death sentence.
century,
every jurisdiction that
By the beginning of this
imposes
the death penalty had
established lethal injection as a method, if not the only method,
4
( • • • continued)
("Answering Brief"), Docket Entry No. 14. The court will consider
the Motion to Dismiss as an opposition to the Motion to Compel.
5
See Answering Brief, Docket Entry No. 14.
6
See Texas Department of Criminal
Plaintiffs' Answering Brief in Opposition
Brief"), Docket Entry No. 15.
-3-
Justice's Reply to
("Reply to Answering
of execution. 7
Lawsuits across the country have since challenged
various aspects of the lethal injection process.
Even though the Supreme Court has "never invalidated a State's
chosen procedure
infliction
of
for
cruel
carrying out
a
and
punishment,"
unusual
sentence
of
death as
inmates
the
began
challenging the use of lethal injection under the Eighth Amendment.
Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015)
(quotation omitted).
In Baze v. Rees, 128 S. Ct. 1520 (2008), the Supreme Court "cleared
any legal obstacle to use of the most common three-drug protocol
that had enabled States to carry out the death penalty in a quick
and painless fashion," Glossip, 135 S. Ct. at 2733.
the Baze Court created a
In doing so,
two-part test for evaluating a
lethal
injection challenge.
Under Baze the condemned inmate must first "establish[] that
the State's lethal injection protocol creates a demonstrated risk
of severe pain," which requires an inmate to
show 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."
Baze, 128 S. Ct.
at
then
1531
(quotation
omitted) .
Inmates
7
must
propose
a
In 1983 the Arkansas Legislature removed electrocution and
adopted lethal injection as the primary method of execution.
By
2008 most jurisdictions used a protocol calling for the sequential
administration of three drugs:
a fast-acting barbiturate such as
sodium thiopental, a paralytic agent such as pancuronium bromide,
and a drug such as potassium chloride that induces cardiac arrest.
-4-
"feasible, readily implemented [alternative procedure that will] in
fact significantly reduce a substantial risk of severe pain[.]"
Baze, 128 S. Ct. at 1532.
In
2009
execution
several
protocols
states,
from
a
three-drug
injection of pentobarbital.
acting barbiturate.
including
Texas,
protocol
changed
to
a
their
one-drug
"Pentobarbital is an intermediateTwo gram doses of pentobarbital are
fatal, the five gram doses that Texas uses are overwhelmingly so."
Whitaker v. Livingston, 2016 WL 3199532, at *1 (S.D. Tex. 2016) . 8
"[P]entobarbital was used in all of the 43 executions carried
out
in 2012."
obstacle
Glossip,
emerged"
soon
135
to
s.
the
Ct.
at
use
2733.
of
" [A]
practical
pentobarbital
"as
anti-death-penalty advocates pressured pharmaceutical companies to
refuse to supply the drugs used to carry out death sentences."
Glossip,
135 S.
pentobarbital,
Ct.
at 2733.
In response to the shift toward
"[a]nti-death-penalty advocates lobbied the Danish
manufacturer of the drug to stop selling it for use in executions.
That manufacturer opposed the death penalty and took steps to block
Arkansas amended its statute in 2009 to authorize the use of
various substances, but did not specify that pentobarbital was a
potential substance for use in executions.
The Arkansas statute
stated that the State could use "one or more ultra-short-acting
barbiturates" and "one or more chemical paralytic agents," ARK. CODE
ANN. § 5-4-617 (2009) (amended 2013). Testimony in other cases has
established that pentobarbital is "not classified as an 'ultra
short-acting barbiturate.'"
Mann v. Palmer, 713 F.3d 1306, 1313
(11th Cir. 2013). Arkansas later amended its statute to allow the
use
of
"a
barbiturate,"
which
would
presumably
include
pentobarbital.
8
-5-
the
shipment
of
United States."
States
have
pentobarbital
for
use
in
executions
in
the
Glossip, 135 S. Ct. at 2733 (citations omitted).
taken
two
manufactured pentobarbital.
approaches
to
losing
suppliers
of
First, States like Texas have acquired
pentobarbital from compounding pharmacies that have attempted to
keep their identity secret. 9
turned to midazolam,
drugs."
Other states,
like Arkansas,
"have
a sedative in the benzodiazepine family of
Glossip, 135 S. Ct. at 2734.
In 2015 Arkansas amended its
method-of-execution statute to authorize the use of midazolam as
part of a three-drug protocol.
Since Glossip, there have been at
least twenty executions carried out in Florida, Alabama, Virginia,
Ohio, Tennessee, and Arkansas using midazolam. 10
Inmates have repeatedly challenged midazolam as an agent that
is capable of causing a botched execution.
In Glossip v. Gross,
135 S. Ct. 2726 (2015), inmates argued that Oklahoma's three-drug
9
In 2013 a loss of suppliers forced Texas to use compounded
pentobarbital instead of manufactured pentobarbital. "Compounding
pentobarbital
involves
dissolving
an
active
ingredient
pentobarbital sodium salt powder - in a water-solvent solution.
The mixture is processed into a liquid that can be injected."
Whitaker, 2016 WL 3199532, at *1.
The Fifth Circuit has applied
the Glossip standard to conclude that the use of compounded
pentobarbital does not subject an inmate to a substantial risk of
severe pain. See Whitaker v. Collier, 862 F.3d 490, 499 (5th Cir.
2017); Wood v. Collier, 836 F.3d 534, 540 (5th Cir. 2016); see also
Zink v. Lombardi, 783 F. 3d 1089, 1101 (8th Cir. 2015); Gissendaner
v. Commissioner, Georgia Dep't of Corrections, 779 F.3d 1275, 127879 (11th Cir. 2015).
See Death Penalty Information Center, https: I /deathpenalty
info.org/executions-united-states (last visited August 13, 2018)
(listing executions in 2015, 2016, 2017, and 2018)
10
-6-
protocol
using
midazolam
violated
the
Eighth
Amendment.
The
Glossip Court emphasized that midazolam has been repeatedly and
successfully
used
without
problems
three-drug lethal injection protocol.
2734, 2740-46.
that
"the
as
the
first
drug
in
the
See Glossip, 135 S. Ct. at
Glossip reaffirmed Baze's two-part test and found
prisoners
failed
to
identify a
known
and
available
alternative method of execution that entails a lesser risk of pain"
and also "failed to establish that Oklahoma's use of a massive dose
of midazolam in its execution protocol entails a substantial risk
of severe pain."
B.
Id. at 2731.
The Arkansas Litigation
Since Glossip there has been significant litigation concerning
Arkansas' use of
midazolam.
The litigation that has led to the
case before the court began in April of 2015 when Plaintiffs in
this action challenged the legality of the Arkansas protocol in
state court under the Arkansas Constitution.
Court dismissed their claims,
Kelley v.
The Arkansas Supreme
Johnson,
2016 Ark.
268
(Ark. 2016), and the United States Supreme Court denied certiorari
on February 21, 2017, Johnson v. Kelley, 137 S. Ct. 1067 (2017).
On February 27,
2017,
Governor Asa Hutchinson of Arkansas
scheduled executions for eight death row inmates to occur over a
ten-day period, two occurring per day.n
Just three weeks before
the first scheduled execution, Plaintiffs filed a federal lawsuit
nGovernor Hutchinson ordered the executions because Arkansas'
supply of midazolam had an expiration date of April 30, 2017.
-7-
On February 27,
2017,
Governor Asa Hutchinson of Arkansas
scheduled executions for eight death row inmates to occur over a
ten-day period, two occurring per day. 11
Just three weeks before
the first scheduled execution, Plaintiffs filed a federal lawsuit
challenging Arkansas'
lethal injection protocol. 12
Nine inmates,
including those involved in the instant lawsuit, 13 filed suit under
42 U.S.C.
§
1983 alleging that Arkansas' method of execution, by
itself and in combination with the compressed execution schedule,
violated the Eighth and Fourteenth Amendments.
The focus of the
inmates' lawsuit was that the use of midazolam would not render the
inmates insensate to the pain caused by the other two drugs in the
execution protocol.
inmate plaintiffs moved for a preliminary injunction.
After
a
four-day
evidentiary hearing,
on April
15,
2017,
the
district court granted a preliminary injunction and enjoined the
State from carrying out the scheduled executions.
'l;he State apf:Jee:~.
vacated the injunction.
On April 17,
2017,
the Eighth Circuit
McGehee v. Hutchinson, 854 F.3d 488, 490
11
Governor Hutchinson ordered the executions because
Arkansas' supply of midazolam had an expiration date of April 30,
2017.
12
McGehee v. Hutchinson, 4:17-cv-00179-KGB (E.D. Ark.).
13
Since the filing of the § 1983 complaint, plaintiff Jason
McGehee was granted clemency.
(Docket Entry No. 1, p. 2~ n.l).
Eleven other inmates have intervened in the litigation.
-
8 -
challenging Arkansas'
lethal injection protocol. 12
including those involved in the instant lawsuit,
42 U.S.C.
§ 1983 alleging that Arkansas'
13
Nine inmates,
filed suit under
method of execution, by
itself and in combination with the compressed execution schedule,
violated the Eighth and Fourteenth Amendments.
The focus of the
inmates' lawsuit was that the use of midazolam would not render the
inmates insensate to the pain caused by the other two drugs in the
execution protocol.
injunction.
2017,
the
The inmate plaintiffs moved for a preliminary
After a four-day evidentiary hearing,
district
court
granted a
preliminary
on April 15,
injunction and
enjoined the State from carrying out the scheduled executions.
On April 17, 2017, the Eighth Circuit vacated the injunction.
McGehee v. Hutchinson, 854 F.3d 488, 490 (8th Cir.), cert. denied,
137 S. Ct. 1275 (2017)
14
The Eighth Circuit held that a stay was
not necessary because the inmates delayed unreasonably in bringing
their
§
1983 suit,
the district court did not apply the correct
legal standard, and the facts did not support the district court's
action.
12
Most germane to the matters now before this court,
the
McGehee v. Hutchinson, 4:17-cv-00179-KGB (E.D. Ark.).
13
Since the filing of the § 1983 complaint, plaintiff Jason
McGehee was granted clemency.
(Docket Entry No. 1, p. 5 n.1 [All
page numbers for docket entries refer to the pagination inserted at
the top of the page by the court's electronic filing system,
CM/ECF.]) Eleven other inmates have intervened in the litigation.
14
See also Williams v. Kelley, 854 F.3d 998, 1001-02 (8th Cir.)
(describing the McGehee decision), cert. denied, 137 S. Ct. 1284
(2017); Jones v. Kelley, 854 F.3d 1009, 1012 (8th Cir. 2017)
(same).
-8-
Eighth
Circuit
held
that
the
"significant possibility of
inmates
failed
establishing a
to
demonstrate
a
known and available
alternative that would significantly reduce a substantial risk of
severe pain."
The
McGehee, 854 F.3d at 493.
Eighth
Circuit
held
that
in order
to
meet
Glossip' s
requirement that the plaintiff show a feasible, readily implemented
alternative execution method,
that it was
"
the inmates would not need to show
"authorized by statute or ready to use immediately
McGehee, 854 F.3d at 493.
The Eighth Circuit held that
"the State must have access to the alternative and be able to carry
out
the
alternative
Id.
quickly."
method
relatively
(citing Arthur v.
easily
Commissioner,
and
reasonably
Alabama Dep't of
Corrections, 840 F. 3d 1268, 1300 (11th Cir. 2016)); see also Jones,
854
F.3d
at
Corrections,
the
McGehee
1016;
Ledford
v.
Commissioner,
856 F.3d 1312, 1319 n.2
decision
"is
not
Georgia
(11th Cir.)
inapposite
to
Dept.
of
(observing that
[11th
Circuit]
precedent"), cert. denied. sub nom., Ledford v. Dozier, 137 S. Ct.
2156 (2017) . 15
Although the inmates had cited various alternative
15
The Fifth Circuit has not yet extensively discussed the
second Baze requirement.
In an as-applied challenge arguing that
various health concerns would render the use of lethal injection
cruel and unusual in an inmate's execution, a court in this
district recently found that an alternative was not feasible or
readily available when its use would require the alteration of
Texas' statutory law or execution protocol.
Bible v. Davis, 2018
WL 3068804, at *9 (S.D. Tex. 2018), aff'd, Bible v. Davis,
F. App'x ___ , 2018 WL 3156840, at *1 (5th Cir. 2018); see also Boyd
v. Warden, Holman Correctional Facility, 856 F.3d 853, 869 (11th
Cir. 2017) (finding that the inmate did not meet the alternative(continued ... )
-9-
methods
of
execution,
the
availability of the several
Eighth
Circuit
[alternative]
found
that
"the
methods cited by the
district court is too uncertain to satisfy the rigorous standard
under
the
Eighth
Amendment."
McGehee,
854
F.3d
at
493.
Specifically, the Eighth Circuit found that" [t]he possibility that
Arkansas could acquire pentobarbital for use in executions is too
speculative to justify stays of execution.
Arkansas made at least
three unsuccessful inquiries about obtaining barbiturates in 2015,
and the difficulty of obtaining drugs for use in lethal injection
is well documented."
Id.; see also Jones, 854 F. 3d at 1015 (same).
In April of 2017 Arkansas executed four men using the threedrug cocktail that included midazolam.
Arkansas has not executed
anyone since.
On remand from the Eighth Circuit, Plaintiffs filed an amended
complaint
that
argues,
execution
methods
are
in
part,
feasible,
significantly reduce Plaintiffs'
that
" [m] ul tiple
readily
available,
suffering." 16
their lawsuit on the assumption that
alternative
and
would
The parties based
"pentobarbital
is
a more
humane alternative to Arkansas' current use of midazolam, which has
been associated with several executions in which inmates suffered
continued)
method prong because the state could not carry out the inmate's
"death sentence by hanging or firing squad without the Alabama
legislature
fundamentally
rewriting
its
method-of -execution
statute").
15
( •••
16
McGehee v. Hutchinson, 4:2017 -cv-1 79
2018), Docket Entry No. 117, p. 11.
-10-
(E. D.
Ark.
June 21,
prolonged,
of
tortured deaths." 17
showing
midazolam,
a
feasible,
Plaintiffs
seek
To comply with Baze's requirement
readily
to
implemented
show in
alternative
the Arkansas
to
litigation
"whether pentobarbital could be made available to Arkansas for use
, 18
in its executions
Plaintiffs
served
on
TDCJ
a
To do so,
subpoena
on February 22,
duces
tecum
to
2018,
produce
documents seeking "discovery from the TDCJ relating to the TDCJ's
knowledge
of,
pentobarbital." 19
and
communications
with,
any
supplier
of
The subpoena specifically sought disclosure of
"when, how, and from whom Texas has secured or attempted to secure
lethal injection drugs, including pentobarbital." 20
In addition to
the subpoena in this case, it appears that Plaintiffs have served
similar subpoenas on Florida, Missouri, and Nebraska. 21
On March 7, 2018, Texas served 24 pages of objections. 22
On
March 28, 2018, TDCJ produced some redacted responsive documents,
but did not
disclose key information about
pentobarbital.
17
its
acquisition of
Through the meet-and-confer process,
Plaintiffs
Motion to Compel, Docket Entry No. 1, p. 5.
laid.
19
Id. at 6.
2oid.
21
McGehee v. Nebraska Dep't of Correctional Services, 4:2018cv-03092 (Neb.); McGehee v. Florida Dep't of Corrections, 4:2018mc-00004 (N.D. Fla.); McGehee v. Missouri Dep' t of Corrections,
2 : 2 0 18 -me- 0 4 13 8 ( W . D . Mo . ) .
22
0bj ections to Subpoena, Exhibit 2 to Motion to Compel, Docket
Entry No. 1-2.
-11-
agreed to narrow their request,
but still asked for a complete
disclosure of pentobarbital sources.
Plaintiffs now seek a court
order requiring production of
1.
All Documents, Communications, and Things arising
from or related in any way to Texas's efforts to
obtain pentobarbital for use in Executions in
Texas, including but not limited to information
about Texas's current supply of pentobarbital, when
Texas expects to obtain additional pentobarbital,
and the source(s) of pentobarbital.
4.
All Documents, Communications, and Things Related
to any Supplier of pentobarbital, including but not
limited to Communications Related to the availability of pentobarbital for use in Executions;
Documents; Communications, or Things identifying
Suppliers of pentobarbital; Documents, Communications, or Things Related to any Supplier's present,
past, or future willingness to supply pentobarbital
to any State for use in any Execution. 23
TDCJ advanced three
requested material:
reasons
for
refusing
to disclose
the
"(i) that the subpoenaed items are 'privileged
and confidential under Texas law' and would 'likely result in the
cessation
of
executions
supplying Texas';
Arkansas
in
Texas,
as
its
supplier
may
cease
(ii) that the documents are not relevant to the
litigation;
and
(iii)
that
the
burdensome, overbroad and speculative. '" 24
subpoena
is
'unduly
In response, Plaintiffs
promised to maintain the confidentiality of the information through
a protective order already in place in the Arkansas litigation. 25
23
Motion to Compel, Docket No. 1, p. 7.
24
Id. at 7-8.
25
Protecti ve Order (Arkansas case) ,
Compel, Docket Entry No. 1-5, pp. 4-12.
-12-
Exhibit 5 to Motion to
Unsuccessful in their efforts to persuade TDCJ to voluntarily
provide
the
requested material,
Plaintiffs
compel compliance under FED. R. Crv. P. 45.
have
filed
suit
to
TDCJ has filed a Motion
to Dismiss. 26
The core of TDCJ's arguments are the same as the
objections
disclosure:
to
impose an undue burden,
complaints
that
the
information about Texas'
subpoena would
supplier is not
relevant to the Arkansas litigation, and the requested information
is protected.
Plaintiffs have filed a reply arguing that they have
complied with federal procedure with regard to the subpoena and
that the requested documents are relevant.
Plaintiffs also argue
that the subpoena is not overbroad and does not create an undue
burden for the TDCJ.
II.
The
Federal Rules
discovery.
Rule 26 (b)
of
Legal Standards
Civil
Procedure govern
the
scope of
of the Federal Rules of Civil Procedure
26
See Motion to Dismiss, Docket Entry No. 12.
TDCJ seeks to
quash the subpoena based on various alleged deficiencies in its
service and overbreadth in its scope: Plaintiffs improperly served
the subpoena on a TDCJ employee, not on TDCJ' s custodian of
records i the request seeks documents from an unreasonable time
rangei and Plaintiffs should have provided fees for copying and
producing documents with the subpoena.
Despite any technical
errors in the subpoena and its service, TDCJ received notice of its
contents and provided redacted documents to Plaintiffs.
Courts
have found that defects in service may be cured by receipt or
notice to the official recipient. See Armendariz v. Chowaiki, 2015
WL 13373576, at *1 (W.D. Tex. 2015) (citing Winn & Lovett Grocery
Co. v. N.L.R.BG., 213 F.2d 785 (5th Cir. 1954)).
However, since
the court concludes that the subpoena puts an undue burden on TDCJ
and that the requested information is not relevant, the court will
not address TDCJ's arguments about defects in the subpoena.
-13-
states
that
"[p]arties
may
nonprivileged matter that
obtain
discovery
is
relevant
regarding
to any party's
defense and proportional to the needs of the case.
Crv. P. 26 (b) (1).
any
claim or
II
FED. R.
Pursuant to Federal Rule of Civil Procedure 45,
parties may use subpoenas to command parties or non-parties to
"produce designated documents, electronically stored information,
or
tangible
control."
things
in
that
person's
possession,
FED. R. Crv. P. 45(a) (1) (A) (iii)
required in this judicial district,
27
45 (d) (1)
emphasizes
or
Since compliance is
this court has jurisdiction
over objections pursuant to FED. R. Crv. P. 45 (d) (2)
Rule
custody,
that
"[a]
(B)
party
(i)
or
attorney
responsible for issuing . . . a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to
the subpoena."
FED. R. Crv. P. 45 (d) (1).
A court "must quash or
modify a subpoena that fails to allow a reasonable time to comply;
. . . requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or subjects a person to undue
burden."
FED. R.
Crv.
P.
45 (d) (3)
(A)
Whole Woman's Health v. Smith,
*10
(5th
subpoena
Cir.
to
2018)
avoid
(emphasis added);
F.3d
(emphasizing
'subject [ ing]
(quoting FED. R. Crv. P. 45 (d) (3)
(A)
27
that
a
see also
, 2018 WL 3421096, at
"court
person
to
'must'
undue
quash
a
burden'")
(iii)- (iv)).
"[T]he scope of discovery allowed under a subpoena is the
same as the scope of discovery allowed under Rule 26." Singletary
v. Sterling Transport Co., Inc., 289 F.R.D. 237, 240-41 (E.D. Va.
2012).
-14-
Whether a subpoena imposes an undue burden generally raises a
question of the subpoena's reasonableness, which "requires a court
to balance the interests served by demanding compliance with the
subpoena against
the
interests
CHARLES ALAN WRIGHT & ARTHUR
(2d ed.
1995).
demonstrate
furthered by quashing
compliance
with
the burden of proof
the
"unreasonable and oppressive."'"
Wiwa v.
Co.,
2004)
392 F.3d 812,
omitted) .
9A
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2 4 6 3
"The moving party has
'that
it."
818
(5th Cir.
subpoena
would
to
be
Royal Dutch Petroleum
(footnote and quotation
Courts decide whether a particular subpoena presents an
undue burden by applying a "balancing test," Whole Woman's Health
2018 WL 3421096, at *10, which looks at various factors:
(1) relevance of the information requested; (2) the need
of the party for the [subpoenaed materials] ; ( 3) the
breadth of the . . . request; (4) the time period covered
by the request; ( 5) the particularity with which the
party describes the requested [materials]; and (6) the
burden imposed. Further, if the person to whom the .
request is made is a non-party, the court may also
consider the expense and inconvenience to the non-party.
Wiwa,
392
F.3d
at
818;
see
also
Whole
Woman's
Health,
2018
WL 3421096, at *10.
III.
Analysis
The briefing by the parties has focused on the three reasons
TDCJ provided for not disclosing its
source for pentobarbital:
disclosure would be unduly burdensome, the source of Texas' drugs
is not relevant to the Arkansas litigation, and the information is
protected by state law.
Before turning to those arguments,
-15-
the
court will discuss two factors that inform whether the subpoena
should be quashed.
First,
the court will discuss the lengths to
which Texas has gone to protect the confidentiality of its source
of pentobarbital.
in which courts
Second, the court will review relevant decisions
have
rejected similar
third-party attempts
to
discover information about a state's source of execution drugs.
A.
Confidentiality of Texas' Source of Pentobarbital
Since adopting lethal injection in 1982, Texas has conducted
several hundred executions.
Texas statutory law does not specify
what substance will be used in these injections,
only that the
execution be "by intravenous injection of a substance or substances
in a
lethal quantity sufficient
convict is dead."
to cause death and until
See TEX. CODE CRIM. PROC. Ann. art. 43.14.
such
In 2009
Texas changed its execution protocol from a three-drug process to
a single dose of pentobarbital.
have
dwindled,
executions.
states
have
As the sources for execution drugs
searched
for
substances
to
use
in
Texas began obtaining pentobarbital from compounding
pharmacies in September of 2013.
Soon after the switch to compounded pentobarbital, a Public
Information Act ("PIA") disclosure revealed that Texas had received
its drugs from the Woodlands Compounding Pharmacy.
prompted what the
angry
emails,
dissuaded
the
[pharmacy]
protests,
pharmacy
and
from
"The revelation
owner decried as a
media
coverage
continuing
-16-
to
'firestorm'
that
supply
of
ultimately
TDCJ
with
lethal-injection drugs."
Tex. Dep't of Crim. Justice v. Levin, 520
The owner
S.W.3d 225, 240 (Tex. App. -Austin 2017, pet. ref'd).
of
the Woodlands
threats.
June
Compounding Pharmacy reported receiving death
See Whitaker v. Livingston, No. 4:13-cv-2901 (S.D. Tex.
6,
2016),
Docket
Entry
No.
94,
p.
24.
The
Woodlands
Compounding Pharmacy asked Texas to return the pentobarbital it had
provided.
Texas now receives its compounded pentobarbital from a
different supplier.
Concerned about identity of compounding pharmacies, the Texas
Legislature in 2015 exempted from PIA disclosure any "identifying
information
pates
in an execution procedure,
supplies,
( 2)
(1) any person who partici-
. including that of:
or administers a
including a
person who uses,
substance during the execution;
any person or entity that manufactures,
transports,
and
tests,
procures, compounds, prescribes, dispenses, or provides a substance
or supplies used in an execution."
TEx. Gov'T CoDE ANN.
§
552.1081;
see also TEX. CODE CRIM. PROC. Ann. art. 43. 14 (b) .
Litigants in both federal and state court have attempted to
discover the source of Texas' lethal injection drugs.
litigation began when attorneys
sought
PIA
compounded
response,
disclosure
of
pentobarbital
TDCJ
requested
representing death row inmates
information
before
an
Recent state
the
opinion
about
Texas'
PIA
2015
from
the
source
exemption.
Texas
Office
of
In
of
Attorney General regarding whether the PIA required disclosure of
-17-
Relying on the Cox 28
the identity of the supplying pharmacies.
protection -- a Texas common-law exemption from public disclosure
of information that would pose a substantial threat of physical
harm -- the Texas attorney general opined that TDCJ "must withhold
the identifying information of the pharmacy . .
General, OR2014-09184, at 2-3.
II
Texas Attorney
The death row inmates'
attorneys
then brought suit in state court.
An
intermediate
state
appellate
court
found
that
the
Cox
protection did not preclude disclosure of compounding pharmacy's
identity because testimony did not show a
"substantial risk" of
physical harm to those affiliated with the pharmacy.
520 S.W.3d at 240.
Court.
Levin is pending before
the Texas Supreme
Texas Dep't Criminal Justice v. Levin, No.
July 18, 2018)
See Levin,
17-0552
(Tex.
(motion for rehearing filed).
Inmates have unsuccessfully attempted to obtain disclosure of
supplier through federal litigation.
Texas has revealed
some information about its execution drugs,
"opposes disclosure,
Texas'
even under seal, of the identity of either the compounding pharmacy
that produced the drug or the testing facility that evaluated its
potency and purity."
Campbell v. Livingston, 2014 WL 12493215, at
* 1 ( S . D . Tex . 2 0 14 ) .
Courts in the Fifth Circuit have consistently denied requests
for
disclosure
of
information
about
28
the
compounding
pharmacy
Texas Dep't of Public Safety v. Cox Texas Newspapers, L.P.,
343 S.W.3d 112, 116-18 (Tex. 2011).
-18-
providing the pentobarbital.
450, 453
See Trottie v. Livingston, 766 F.3d
(5th Cir. 2014); Sells v. Livingston,
(5th Cir.
2014); Whitaker v.
Livingston,
750 F.3d 478, 480
732 F.3d 465
(5th Cir.
2013); Campbell, 2014 WL 12493215, at *1.
In particular, the Fifth
Circuit
clause
has
held
that
the
due process
disclosure of that information.
did not
require
See id.;
see also Sepulvado v.
Jindal, 729 F.3d 413, 418-19 (5th Cir. 2013)
The Arkansas inmates
are thus requesting information that has been denied Texas inmates:
information
about
the
source
of
the
drugs
used
in
Texas
executions. 29
B.
Subpoenas to Disclose Identity of Pentobarbital Suppliers in
Other States
This is not the first case in which inmates have filed thirdparty subpoenas seeking to discover the source of execution drugs.
The litigation in this case is similar to cases arising out of a
legal challenge to Mississippi's execution protocol. 30
In addition
to seeking information from Mississippi itself, the plaintiffs in
29
Texas has not only refused to disclose the source of its
pentobarbital through litigation, it has generally refused to share
its supply of pentobarbital with other states.
See In re Ohio
Execution Protocol, 860 F.3d 881, 891 (6th Cir. 2017) ("Ohio itself
contacted the departments of correction in Texas, Missouri,
Georgia, Virginia, Alabama, Arizona, and Florida to ask whether
they would be willing to share their supplies of pentobarbital.
All refused.n Texas, however, provided Virginia with three vials
of compounded pentobarbital for an execution in 2015. See Virginia
Department of Corrections v. Jordan, 2017 WL 5075252, at *12 (E.D.
Va. 2017); Price v. Dunn, 2017 WL 1013302, at *2 (S.D. Ala. 2017);
Prieto v. Clarke, 2015 WL 5793903, at *2 (E.D. Va. 2015).
30
Jordan v. Fisher, 3:15-CV-295-HTW-LRA (S.D. Miss.).
-19-
that action served third-party subpoenas on Virginia, Missouri, and
None of those subpoenas resulted in disclosure of an
Georgia.
execution-drug
supplier's
Corrections v.
Jordan,
See
identity.
2017 WL 5075252,
Virginia
at *17
Dep't
(E.D.
Va.
of
2017)
("The Circuit Courts concur that requiring disclosure of suppliers
of lethal injection chemicals and team members imposes an undue
burden on states.")
(citing cases) .
When the Mississippi plaintiffs served a third-party subpoena
for documents regarding Missouri's use of pentobarbital in lethal
injections,
the
confirming that
supplier
provided
it would cease
identity be disclosed.
an
anonymous
to provide
declaration
the drug should its
The Eighth Circuit held that "because [the
anonymous pharmacy] would not supply pentobarbital to Mississippi
once its identity is disclosed, we conclude that [its] identity has
no
relevance
to
the
inmates'
Eighth Amendment
claim."
In re
Missouri Dep't of Corrections, 839 F.3d 732, 736 (8th Cir. 2016),
cert. denied sub nom. Jordan v. Missouri Dep't of Corrections, 137
S. Ct. 2180 (2017).
Even if the supplier's identity were relevant,
the Eighth Circuit held that the subpoena created an undue burden
because (1) it would make it more difficult for Missouri to acquire
the necessary drugs and (2) the pharmacy's identity had "little, if
any, relevance to their Eighth Amendment claim" in the Mississippi
lawsuit.
Id. at 736.
The Virginia and Georgia lawsuits provided additional reasons
for quashing third-party subpoenas.
-20-
A federal district court in
Virginia quashed the third-party subpoena for information about
that
state's
supplier of midazolam because
burdensome for the state to comply.
it would be unduly
The court found undue hardship
because "Virginia's ability to secure the drugs necessary to carry
out
lethal
injections
would
be
frustrated,
should the
supplier of
Jordan, 2017 WL 5075252, at *19.
jeopardized,
those
if
drugs
not
be
totally
disclosed."
The lawsuit in Georgia found that
the state's Lethal Injection Secrecy Statute and prior case law
protected against disclosure of
the
information.
The district
court concluded, "where Georgia's own death row prisoners have been
flatly denied access to information covered by Georgia's Lethal
Injection Secrecy Act,
the
same
type
of
9776069,
at
information
via
subpoena
. efforts to secure
for
use
in
[the]
Georgia Dep't of Corrections v. Jordan,
Mississippi case."
WL
it similarly bars .
*3
(N.D.
Ga.
2016);
WL 5075252, at *19 (E.D. Va. 2017)
see
also
2016
2017
Jordan,
(finding that a similar secrecy
statute did not create a privilege but was an "'add-on'
to the
reasons counseling against disclosure").
Courts have also held that a protective order would not be
sufficient
to
conceal
the
pharmacy's
identity because
"'it
is
likely that active investigation of the physician, pharmacy, and
laboratory will lead to further disclosure of the identities.'"
re Missouri Dep't of Corrections, 839 F.3d at 736
In
(quoting In re
Lombardi, 741 F.3d 888, 894 (8th Cir. 2014)); see also Jordan, 2017
WL 5075252, at *21
("In nearly identical contexts, other courts
-21-
have observed that
protect
a
state's
such protective orders
interest
in
are not
shielding
the
adequate
identities
to
of
individuals and entities that assist the state in carrying out
executions."); In re Ohio Execution Protocol Litig.,
238-39 (6th Cir. 2016)
845 F.3d at
(observing that "the district court did not
err in rejecting Plaintiffs' request to designate certain information subject to the protective order as 'attorney's eyes only'").
Plaintiffs in this action issued subpoenas to states that were
not
parties
Missouri,
to
the
Mississippi
and Nebraska) . 31
litigation
(including
As in the instant case,
refused to disclose material
Florida,
those states
identifying the supplier of their
drugs, and plaintiffs are litigating the matter in federal court.
It does not appear that the courts in those actions have ruled on
the motions to compel.
C.
The Burden Imposed by the Subpoena
The court "must quash" a subpoena that "subjects a person to
undue burden."
FED. R. Crv. P.
45 (d) (3) (A) (iv)
(emphasis added).
Plaintiffs argue that "[t]he only potential burden identified by
the TDCJ is speculative:
the TDCJ contends that it may lose its
pentobarbital supplier if required to produce documents for use in
the
Arkansas
litigation." 32
This
burden,
however,
31
is
not
McGehee v. Nebraska Dep't of Correctional Services, 4:2018cv-03092 (Neb.); McGehee v. Florida Dep't of Corrections, 4:2018mc-00004 (N.D. Fla.); McGehee v. Missouri Dep't of Corrections,
2 : 2 0 18 -me - 0 413 8 (W • D . Mo . ) .
32
Motion to Compel, Docket Entry No. 1, pp. 10-11.
-22-
speculative or insignificant.
The Supreme Court has recognized
that disclosing the source of
lethal
"practical
obstacle"
for
states
injection drugs
because
suppliers
pressured into withholding chemicals from states.
s.
Ct .
at
2 733 .
Texas
already
lost
a
creates a
have
Glossip,
supplier of
pentobarbital after the PIA disclosure in 2013.
been
135
compounded
TDCJ has provided
affirmative, credible evidence that its fear of losing the means to
conduct executions is not speculative.
In
other
pentobarbital
Levin,
520
Pharmacy X,
Pharmacy X
litigation
from a
TDCJ
licensed Texas
S.W.3d at
226.
that
it
disclosed
that
it
declaration in the instant action. 33
will
stop
supplying
based its decision to supply TDCJ with drugs
harassment,
and
See
under the pseudonym
TDCJ
with
injection chemicals should its identity be disclosed.
remaining secret." 34
obtains
compounding pharmacy.
That pharmacy,
has provided a
says
has
on its
lethal
Pharmacy X
"identity
Because of "documentary evidence of threats,
boycotts
to
which
other
suppliers
of
lethal
injection drugs have been subjected as a result of their lawful
decision to supply state correctional departments with drugs needed
to carry out executions," Pharmacy X "reasonably fears that if its
identity is disclosed or revealed,
anti-death penalty advocates
will harass and retaliate against Pharmacy X, resulting in physical
33
Declaration of Pharmacy X, Exhibit 4 to Motion to Dismiss,
Docket Entry No. 12-4. Plaintiffs do not object to the declaration
and do not challenge its credibility.
34
Id. at 2
~
4.
-23-
and
financial
harm
to
Pharmacy
its
X,
owner(s),
and
its
employees." 35 Accordingly, "[i]f Pharmacy X's identity is disclosed
or revealed,
Pharmacy X will no longer conduct business with the
[TDCJ] . 36
II
Plaintiffs dispute Pharmacy X's fears that disclosure would
lead to threats, harassment, and boycotts.
Plaintiffs assert that
the recent Texas state case seeking disclosure of Texas' supplier
before 2015
physical
"rejected the argument
harm
identity,
to
that
finding
speculation. ' 1137
pharmacy
instead
was
that
The Levin case,
that a
a
any
involved
Texas'
threat of physical harm."
basis
such
however,
court, and is thus of limited relevance.
lawsuit
purported threat of
to
withhold
threat
was
its
'mere
is not final in state
Nevertheless, the Levin
Cox protection against
a
"substantial
The Levin court found that the state had
only demonstrated "the residual or general threat of physical harm
that would accompany virtually any participation in governmental
functions or controversial issues.
Relying on Levin,
assertion
that
it
Levin,
11
520
S. W. 3d at 240.
Plaintiffs argue that "Pharmacy X's unadorned
fears
threats
is
nothing
more
than
'mere
speculation. ' " 38
35Id. at 3 ~ 7 and 2 ~ 6 .
36Id. at 2 ~ 4.
37 Answering Brief, Docket Entry No. 14, p. 14
520 S.W.3d at 240) .
3sid.
-24-
(citing Levin,
TDCJ has not disclosed whether or not
subject of the lawsuit in Levin.
Pharmacy X was
the
More importantly, the state-law
protection at issue in Levin is not the issue before this court.
Whether
or
not
compounding
pharmacies
substantial threat is not the point.
have
valid
fears
of
a
Pharmacy X unequivocally
indicates that it will cease supplying Texas with pentobarbital
upon disclosure.
Pharmacy X's perception that physical, financial,
or social threats exist would shut off TDCJ's access to compounded
pentobarbital.
Past history has shown that Pharmacy X' s
unfounded.
After
the
2013
disclosure
concerns are not
involving
the
Woodlands
Compounding Pharmacy, pressure, intimidation, and threats resulted
in the source of Texas'
compounded pentobarbital demanding the
return
With
of
its
drugs.
that
history,
and
Pharmacy
X's
Declaration, TDCJ persuasively argues that "[s)hould TDCJ be forced
to disclose, the relationship with the 'pharmacists involved' would
be destroyed and Plaintiffs, through a discovery request, will have
closed off an avenue of lawful punishment in all of Texas. " 39
Plaintiffs
supplier,
disclosure
not
only
of
Texas'
current
but of all information relating to past and possible
future suppliers,
suppliers.
seek
as well as what efforts TDCJ has made to find
Aside from the overly expansive breadth of the request,
TDCJ persuasively argues that disclosure would also likely impede
39
Reply to Answering Brief, Docket Entry No. 15, p. 4.
-25-
additional
sources
pentobarbital.
from
agreeing
to
supply
Texas
with
Pharmacy X's Declaration amply shows the chilling
effect that possible disclosure has on all potential sources of
execution chemicals.
The court concludes that TDCJ has shown that full compliance
with the subpoena would create an undue burden.
D.
Relevance
TDCJ also argues that the material requested by the subpoena
is not relevant to the ongoing Arkansas litigation.
"'Under the
federal discovery rules, any party to a civil action is entitled to
all information relevant to the subject matter of the action before
the court unless such information is privileged.'"
at 820.
Wiwa, 392 F.3d
The relevance of the material is directly related to the
showing Plaintiffs must make to prove their Eight Amendment claim
in the Arkansas litigation.
court
that
there
alternative
to
exists
midazolam
Plaintiffs must show the Arkansas
a
"feasible,
that
would
substantial risk of severe pain."
readily
implemented"
"significantly
reduce
Baze, 128 S. Ct. at 1532.
a
The
Eighth Circuit has held that the Baze standard requires Plaintiffs
to show that the State has "access to the alternative and [is] able
to
carry
out
the
reasonably quickly."
alternative
method
relatively
easily
and
McGehee, 854 F.3d at 493; see also Jones, 854
F.3d at 1015.
TDCJ argues that the material relating to the source of its
pentobarbital is not relevant because its supplier will not provide
-26-
drugs to Arkansas.
Pharmacy X has confirmed that it "will not
supply lethal injection chemicals to any state other than Texas
under any circumstances. " 40
The Eighth Circuit has
found that
information about a pharmacy's identity is not relevant if the
pharmacy would not provide lethal injection chemicals to another
state.
See In re Mo. Dep't of Corr., 839 F.3d at 736 ("Therefore,
because
[the
pharmacy]
would
not
supply
pentobarbital
to
Mississippi once its identity is disclosed, we conclude that [its]
identity
has
claim.").
no
relevance
to
the
inmates'
Eighth
Amendment
Thus, the identity of the supplier of pentobarbital to
Texas would not provide Plaintiffs with relevant information about
an "available alternative" to advance the Arkansas litigation.
Moreover, even if Pharmacy X's identity had some relevance as
a supplier of pentobarbital to Texas, that relevance is contingent
on Pharmacy X being a readily available source of pentobarbital.
Pharmacy X has stated that it would cease providing Texas with
compounded pentobarbital should its
identity be disclosed.
disclosure,
supplier would cease to be
information about Texas'
On
relevant- Pharmacy X would no longer supply Texas with the drugs.
Plaintiffs
argue
that,
of
regardless
unwillingness to provide Arkansas the drugs,
"to
further
explore
facts
regarding
obtains or makes pentobarbital. " 41
how
Pharmacy
X's
they should be able
that
supplier
either
Plaintiffs,
however,
do not
40
Declaration of Pharmacy X, Exhibit 4 to Motion to Dismiss,
Docket Entry No. 12-4, p. 2 ~ 5.
41
Answering Brief, Docket Entry No. 14, p. 11 n. 5.
-27-
explain how that information would make pentobarbital a feasible,
readily available alternative without a supplier willing to provide
Arkansas
with
the
discovery
sought
"present,
past,
relevant
to
suppliers
the
would
compounded
by
or
Plaintiffs
future" 42
Arkansas
not
drugs.
about
Texas'
the
efforts
suppliers of pentobarbital
litigation.
provide
Likewise,
Plaintiffs
The
with
identity
broader
to
find
is not
of
such
information about
sources that are readily available to Arkansas, especially since
that information is equally available to Plaintiffs.
The court concludes that the subpoena requests information
that is not relevant to the Arkansas litigation.
E.
Privilege
TDCJ argues that the subpoena requests privileged information.
"Under the federal discovery rules, any party to a civil action is
entitled to all information relevant to the subject matter of the
action before the court unless such information is privileged."
Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th
Cir. 1979).
Relying primarily on the laws Texas created in 2015 to
prevent disclosure under the PIA of its execution procedure, TDCJ
argues
that
Plaintiffs
"[s] uch records are privileged and confidential. " 43
respond
that
the
statutory
provisions
42
Motion to Compel, Docket Entry No. 1, p. 7.
43
Motion to Dismiss, Docket Entry No. 12, p. 31.
-28-
only
exempt
disclosure
under
Texas'
PIA,
which
itself
"create new privileges from discovery."
does
not
intend
to
TEx. Gov' T CODE 552. 005 (b) .
On their face the statutes on which TDCJ relies only preclude
disclosure under Texas' PIA.
disclosure
of
similar
Some federal courts considering the
information
under
state
confidentiality
statutes have been hesitant to "federalize the [state] secrecy law
as a common-law privilege for immunity."
Protocol
Litigation,
WL 5075252, at *19.
necessary
to
845
F.3d
at
239;
In re Ohio Execution
see
also
Jordan,
2017
Given the court's other conclusions it is not
decide
whether
Texas'
secrecy
statute
creates
a
privilege in federal court.
The
court,
statutory
however,
exemption
cannot
from
ignore
disclosure
the
intent
under
the
behind
the
TDCJ
PIA.
persuasively argues that "TDCJ's concerns are not only its own, but
that of the Texas people."
While not a dispositive factor,
the
Texas statute exhibits a democratically manifested intent not to
disclose the source of Texas' lethal injection drugs.
The Motion
to Compel must be viewed against a backdrop of extensive litigation
brought
various
by
Texas
inmates,
constitutional
consistently held
that
often
arguing
The
theories.
Texas
inmates
information about Texas' supplier.
do
for
disclosure
Fifth
not
have
under
Circuit
a
right
has
to
The Arkansas plaintiffs seek by
subpoena information unavailable to Texas prisoners.
While not a
matter of privilege, denying the Motion to Compel harmonizes with
the Fifth Circuit law precluding disclosure.
-29-
F.
Protective Order
Plaintiffs argue that a protective order would remedy TDCJ's
concerns about any disclosure pursuant to the subpoena.
may,
for good cause,
from
annoyance,
expense."
FED.
A "court
issue an order to protect a party or person
embarrassment,
R. Crv. P.
oppression,
or
undue
burden or
In analyzing a request for a
2 6 (c) ( 1) .
protective order, the court "must compare the hardship to the party
against whom discovery is sought against the probative value of the
information
to
the
other
Mississippi, L.L.C.,
party."
838 F.3d 540,
quotation marks omitted) .
Cazorla
555
v.
Koch
(5th Cir. 2016)
Foods
of
(internal
"District courts have broad discretion
in determining whether to grant a motion for a protective order."
In re LeBlanc, 559 F. App'x 389, 392-93 (5th Cir. 2014).
A protective
litigation. 44
divulge
order
is
already
in
place
in
the
Arkansas
The protective order provides that Plaintiffs could
confidential
material
to
counsel
of
record,
attorneys
employed in the same office as counsel, any expert witnesses, up to
ten staff members including secretaries and legal assistants, court
personnel,
access. 45
require
and anyone else whom the parties
agree
should have
Inadvertent disclosure of confidential information would
Plaintiffs
to
give
immediate
compounding pharmacies of the disclosure,
44
notice,
to
advise
the
and to take reasonable
See Protective Order, Exhibit 5 to Motion to Compel, Docket
Entry No. 1-5, pp. 4-12.
45
See id. at 8-9
~
9.
-30-
steps to return the disclosed material. 16
Plaintiffs state that
they would agree to a supplemental protective order if the one in
place is deficient.
TDCJ expresses concern about the protective order on several
grounds:
The Arkansas district court could unseal the information,
which would result in disclosure; intervention of parties into the
Arkansas lawsuit could result in weakening of the protective order;
the number of people involved in the protective order could result
in intentional or accidental disclosure; the protective order is
"meaningless" because of inadequate remedial action; and accidental
disclosure of the information is a foreseeable possibility. 17
Most
persuasively, TDCJ argues that the disclosure of information about
its supplier of pentobarbital, even with the protective order in
place, would end their ability to procure compounded pentobarbital.
The court agrees with the analysis of another district court
denying a similar motion to compel production information about the
supplier of Mississippi's lethal injection chemicals:
Entry of a protective order merely limiting the
dissemination of
information is an unsatisfactory
alternative, as the drug supplier has made it clear that
it will discontinue selling the necessary drugs if its
identity is revealed.
There is no allowance for
revelation by court order. Moreover, the inherent danger
and hardship that would follow even an inadvertent
disclosure convince the Court that it must protect the
information at issue from discovery. For these reasons,
the Defendants are entitled to withhold from discovery
46
See id. at 9-10.
47
Reply to Answering Brief, Docket Entry No. 15, pp. 9-12.
-31-
any material that would identify suppliers of lethal
injection drugs or persons involved in the execution
process.
Jordan v. Hall, 2018 WL 1546632, at *11 (S.D. Miss. 2018); see also
In re Missouri Dep't of Corrections, 839 F.3d at 737 (refusing to
require disclosure under a protective order because "'it is likely
that
active
investigation
of
the
physician,
pharmacy,
and
laboratory will lead to further disclosure of the identities'n);
Jordan, 2017 WL 5075252, at *21 ("[S]uch protective orders are not
adequate to protect a state's interest in shielding the identities
of individuals and entities that assist the state in carrying out
executions.n)
would
Because disclosure of the requested information
Texas'
cause
pentobarbital,
supplier
to
stop
providing
compounded
and real concerns exist about the possibility of
inadvertent disclosure, the court concludes that a protective order
does not ameliorate TDCJ's hardship if compelled to comply with the
subpoena.
IV.
Conclusion and Order
The court has reviewed the arguments and the applicable law
and is of
the opinion that,
particularly
in preventing
on balance,
it
from
the hardship to TDCJ,
obtaining
lethal
drugs, outweighs Plaintiffs' need for this information.
execution
Compelling
compliance with the subpoena would create an undue burden for TDCJ.
Furthermore,
Plaintiffs seek information that is not relevant to
their underlying lawsuit.
The Arkansas plaintiffs have not shown
-32-
that they are entitled to discovery that has been consistently
denied to Texas inmates.
Accordingly,
the court DENIES Plaintiffs'
Motion to Compel
Compliance with Subpoena (Docket Entry No. 1).
The court GRANTS
TDCJ's Dispositive Motion to Dismiss Plaintiffs' Motion to Compel
Compliance with Subpoena (Docket Entry No. 12) to the extent that
it
will
not
require
compliance with
the
subpoena.
QUASHES the subpoena at issue in this action.
The
court
Because the court
has ruled on all pending motions, it will dismiss this action with
prejudice.
SIGNED at Houston, Texas, on this 21st day of August, 2018.
UNITED
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DISTRICT JUDGE
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