In re: Ohio Execution Protocol Litigation.
John Kasich, et al., Respondents-Appellees. Angelo Fears, et al., Petitioners-Appellants,
Argued: November 18, 2016
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:11-cv-01016-Gregory L.
Frost, District Judge.
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.
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.
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.
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).
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
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.").
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).
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