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In re Ohio Execution Protocol Litigation

United States Court of Appeals, Sixth Circuit

December 30, 2016

In re: Ohio Execution Protocol Litigation.
v.
John Kasich, et al., Respondents-Appellees. Angelo Fears, et al., Petitioners-Appellants,

          Argued: November 18, 2016

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:11-cv-01016-Gregory L. Frost, District Judge.

         ARGUED:

          Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants.

          Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Allen L. Bohnert, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, Randall Porter, Kimberly S. Rigby, Rachel Troutman, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, Lawrence J. Greger, GREGER LAW OFFICE, Dayton, Ohio, Vicki Werneke, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Laurence E. Komp, Manchester, Missouri, for Appellants. Charles L. Wille, Thomas Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

          Before: NORRIS, SILER, and STRANCH, Circuit Judges.

          OPINION

          SILER, Circuit Judge.

         Plaintiffs are Ohio death-row inmates challenging Ohio's execution protocol and practice. Defendants include Ohio officials as well as anonymous drug manufacturers, compounders, intermediaries, and others involved in Ohio's execution process. Plaintiffs appeal from a district court's entry of a protective order precluding the disclosure of any information that could reveal the identity of suppliers or manufacturers of Ohio's legal-injection drugs as well as anyone related to carrying out executions in Ohio. During the pendency of this appeal, we affirmed a related appeal from an order dismissing certain constitutional challenges to Ohio's execution protocol. Phillips v. DeWine, No. 15-3238, 2016 U.S. App. LEXIS 19697 (6th Cir. Nov. 12, 2016). We now AFFIRM the entry of the protective order because the district court did not abuse its discretion in concluding that Defendants established good cause for protection from certain discovery.

         I.

         Starting around 2011, Ohio death-row inmates filed a spate of lawsuits in the Southern District of Ohio to challenge Ohio's protocols for lethal injunction. In 2014, Ohio enacted legislation to amend Ohio Revised Code § 149.43, thereby creating two new statutes, Ohio Revised Code §§ 2949.221 and 2949.222, to address confidentiality of information about lethal injection in Ohio. The secrecy statute precludes, among other things, the release of information that would identify the manufacturer or supplier of drugs for use in Ohio's lethal-injection protocol. See Ohio Rev. Code Ann. §§ 2949.221, 2949.222. In Phillips, the district court dismissed some of the litigation challenging the protocol on grounds of lack of subject-matter jurisdiction and failure to state a claim. Phillips v. Dewine, 92 F.Supp.3d 702, 718 (S.D. Ohio 2015).

         In the litigation giving rise to this appeal, Defendants moved for a protective order to prevent the release of any information in their possession that could identify the sources of Ohio's lethal-injection drugs. After hearing evidence and testimony from four witnesses, the district court granted the motion and issued the following protective order:

The Court therefore ORDERS that any information or record in Defendants' possession, custody, or control that identifies or reasonably would lead to the identification of any person or entity who participates in the acquisition or use of the specific drugs, compounded or not, that Ohio indicates in its execution protocol it will use or will potentially seek to use to carry out executions is protected and not subject to discovery. This protective order is intended to extend to those persons who or entities that have not waived or forfeited its protection and who manufacture, compound, import, transport, distribute, supply, prescribe, prepare, administer, use, or test the compounding equipment or components, the active pharmaceutical ingredients, the execution protocol drugs or combination of drugs, the medical supplies, or the medical equipment used in carrying out any execution under Ohio Revised Code § 2949.22. This protective order governs discovery only in this litigation and does not apply outside this litigation or (in the increasingly unlikely event) after this litigation concludes.

In re Ohio Execution Protocol Litig., No. 2:11-cv-1016, 2015 U.S. Dist. LEXIS 144926, at *45- 46 (S.D. Ohio Oct. 26, 2015). The district court certified the order for interlocutory appeal, and we granted Plaintiffs' petition to appeal. Shortly thereafter, the district court reassigned and consolidated Phillips with this litigation. Several days after the protective order issued, Plaintiffs moved for a modification that would permit limited disclosures to counsel only under the designation "attorney's eyes only." The district court denied the motion, noting that "disclosure of identities subjects the disclosed persons or entities to suit."[1]

         In October 2016, before oral argument, the parties notified the court that Ohio plans to move forward with three scheduled executions, starting with Ronald Phillips's execution in January 2017. Defendants represented that they intend to use a new three-drug protocol: midazolam hydrochloride, potassium chloride, and one of the following drugs: rocuronium bromide, vecuronium bromide, or pancuronium bromide. The new protocol mirrors the Oklahoma protocol approbated by the Supreme Court in June 2015. See Glossip v. Gross, 135 S.Ct. 2726, 2734-35 (2015) ("The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralytic agent and potassium chloride. The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case.").[2]

         We affirmed the judgment in Phillips in November 2016 and now address the instant discovery dispute. Phillips v. DeWine, No. 15-3238, 2016 U.S. App. LEXIS 19697, at *30-31 (6th Cir. Nov. 12, 2016).

         II.

         Under Federal Rule of Civil Procedure 26(c)(1), a district court may grant a protective order preventing the production of discovery to protect a party or entity from "annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). We review the grant of a protective order for abuse of discretion. Serrano v. Cintas Corp., 699 F.3d 884, 899-900 (6th Cir. 2012). "The abuse-of-discretion standard does not preclude an appellate court's correction of a district court's legal or factual error: 'A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Highmark Inc. v. Allcare Health Mgmt. Sys., 134 S.Ct. 1744, 1748 n.2 (2014) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). To that end, "in reviewing a trial court's evidentiary determinations, this court reviews de novo ...


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