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West v. Schofield

Court of Appeals of Tennessee, Nashville

September 29, 2014

STEPHEN MICHAEL WEST, ET AL.
v.
DERRICK D. SCHOFIELD, ET AL.

Session August 11, 2014

Appeal from the Chancery Court for Davidson County No. 131627I Claudia Bonnyman, Chancellor

Robert E. Cooper, Attorney General and Reporter; Joseph F. Whalen, Solicitor General; Kyle Alexander Hixson, Assistant Attorney General; Andrew Hamilton Smith, Assistant Attorney General; and Nicholas White Spangler, Assistant Attorney General, Nashville, Tennessee, for the appellants/defendants, Derrick D. Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, John Doe Physicians 1-100, John Doe Pharmacists 1-100, John Doe Medical Examiners 1-100, John Doe Medical Personnel 1-100, John Doe Executioners 1-100, and Tennessee Department of Corrections.

Stephen M. Kissinger and Helen Susanne Bales, Knoxville, Tennessee, for the appellees/plaintiffs, Stephen Michael West, Nicholas Todd Sutton, David Earl Miller, and Olen Edward Hutchison.

Carl Eugene Shiles, Jr. and William J. Rieder, Chattanooga, Tennessee, for the appellee/plaintiff, Billy Ray Irick.

Kelly Jane Henry and Michael J. Passino, Nashville, Tennessee, for intervening appellees/plaintiffs, Abu-Ali Abdur'Rahman, Donald R. Johnson, Donald Wayne Strouth, Charles Walton Wright, and Edmund George Zagorski.

Kelly A. Gleason, Nashville, Tennessee, for intervening appellee/plaintiff, Lee Hall, Jr.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL McBRAYER, JUDGE

I. Background and Procedural History

On November 20, 2013, Stephen Michael West and four other death row inmates, Billy Ray Irick, Nicholas Todd Sutton, David Earl Miller, and Olen Edward Hutchison, filed a Complaint for Declaratory Judgment. Six additional death row inmates, Edmund Zagorski, Abu-Ali Abdur'Rahman, Charles Wright, Donald Johnson, Lee Hall, Jr., and Donald Strouth, subsequently filed unopposed motions to intervene in this action, which were granted by the trial court. The Plaintiffs/Appellees contended that the Tennessee Department of Correction's Execution Procedures for Lethal Injection ("Protocol") violates the Eighth and Fourteenth Amendment of the United States Constitution and Article I, § 16 of the Tennessee Constitution, as well as state and federal laws in a six-count complaint. Appellees' six counts alleged that: (1) the Protocol causes "death over a prolonged period of time"; (2) the Protocol creates a substantial risk that the drugs will be contaminated or impure, thereby creating an unnecessary risk of pain and suffering, and the use of compounded pentobarbital as required by the Protocol creates a substantial risk that the drugs will lack potency; (3) the persons carrying out the Protocol lack proper training, guidance, and experience to carry out their assigned tasks; (4) the Protocol requires the persons carrying it out to follow practices and procedures that create a substantially increased risk of undetected infiltration when compared to a recognized standard of care for lethal injections, making it even more likely to cause Appellees to suffer a lingering death; (5) the Protocol requires the persons carrying it out to intentionally violate state and federal drug laws; and (6) that Tennessee Code Annotated section 10-7-504(h)(1) violates Appellees' constitutional right of access to the courts and due process to the extent it prevents the disclosure of information pursuant to a lawful court order.

The Appellants/Defendants in this case are Derrick D. Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, and Tony Parker in their official capacities, as well as the individuals responsible for implementing the process of executing a sentence of death, identified as John Doe Physicians 1-100, John Doe Pharmacists 1-100, John Doe Medical Examiners 1-100, John Doe Medical Personnel 1-100, and John Doe Executioners 1-100 ("John Doe Defendants"). The Attorney General's Office accepted service on behalf of the named defendants on November 20, 2013. Initially, the Attorney General declined to accept service on behalf of John Doe Defendants because it was unknown whether they were State employees, individuals acting under color of state law, or merely subcontractors.

On November 26, 2013, to facilitate service on the John Doe Defendants, the trial court entered a Case Management Order directing Appellees to "immediately make a formal discovery request to the State, requesting the identities of the [unserved defendants]." The Order further required the parties to draft a protective order intended to shield this identifying information from public view. Appellees served their First Set of Interrogatories on the same day, requesting the identities of John Doe Defendants in compliance with the Case Management Order. On November 27, 2013, the Attorney General agreed to accept service on behalf of John Doe Defendants.

The trial court held a scheduling conference by telephone on December 2, 2013, which was the deadline for Appellants to respond to Appellees' First Set of Interrogatories. At the conference, the parties agreed to submit a protective order concerning the identities of John Doe Defendants and to allow Appellants until December 4, 2013, to respond to Appellees' interrogatories.

Appellants responded to Appellees' First Set of Interrogatories on December 4, 2013. They objected to each of Appellees' requests for the identities of John Doe Defendants, maintaining that they were not relevant to Appellees' challenge to the Protocol and that they are confidential under the Tennessee Public Records Act. Specifically, the objection read as follows:

The identity of the individual described in this interrogatory is neither relevant nor material to the [Appellees'] ability to challenge the protocol employed in executing a sentence of death and is specifically deemed confidential under state law. See Tenn. Code Ann. § 10-7-504(h); Tenn. R. Civ. P. 26.02(1). Such information is also subject to redaction "wherever possible" pursuant to Tenn. Code Ann. § 10-7-504(h)(2). [Appellants'] interest in maintaining the confidentiality of persons directly involved in the execution process thus outweighs [Appellees'] need for the discovery request.

In lieu of revealing the identities of John Doe Defendants, Appellants offered to allow Appellees to conduct screened depositions and to provide information regarding the education, training, and certifications of John Doe Defendants.

Appellants also moved the trial court to adopt a proposed Agreed Protective Order, which the trial court entered on December 5, 2013. The Protective Order prevents the parties from revealing the identities of John Doe Defendants "except to the extent essential to conduct the proceedings at issue in this case." It further states, "[s]aid confidential information shall not be disclosed to any person other than counsel of record, staff, and any experts consulted or retained by a party who will be informed of, provided with and shall be bound by the terms of this Court's protective order."

Appellees filed a Motion to Compel Responses to Plaintiffs' First Set of Interrogatories on December 13, 2013, seeking the identities of John Doe Defendants. The trial court held a hearing on the issue and granted Appellees' motion in an ...


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