Richard Jordan v. Georgia Department of Corrections ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12948
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-02582-RWS
RICHARD JORDAN,
RICKY CHASE,
Plaintiffs-Appellants,
versus
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendant,
GEORGIA DEPARTMENT OF CORRECTIONS,
Movant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 10, 2020)
Before WILLIAM PRYOR, TJOFLAT, and JULIE CARNES, Circuit Judges.
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ON PETITION FOR REHEARING
JULIE CARNES, Circuit Judge:
We vacate and reconsider our original opinion in this matter, reported at 908
F.3d 1259. We substitute in its place the following opinion.
Plaintiffs Richard Jordan and Ricky Chase, Mississippi death row inmates,
served the Georgia Department of Corrections (“GDC”) with a subpoena directing
the GDC to testify at a Rule 30(b)(6) deposition and to produce documents
concerning Georgia’s lethal injection protocol. Plaintiffs argued that the testimony
and documents were necessary to support their 42 U.S.C. § 1983 claims pending in
the Southern District of Mississippi challenging the legality of Mississippi’s lethal
injection protocol. The GDC filed a motion to quash in the Northern District of
Georgia, where compliance with the subpoena was required, arguing that
disclosure of this information was barred by the Georgia Lethal Injection Secrecy
Act. 1 Accepting the recommendation of a magistrate judge, the district court
1
In pertinent part, the subpoena demands that the GDC produce documents concerning: (1) the
GDC’s attempt to secure or purchase pentobarbital for use in executions, (2) drug labels and
package inserts for any drug purchased by the GDC for use in lethal injection executions, (3) the
process by which the GDC decided to use a single lethal dose of barbiturate in its lethal injection
protocol, including communications between any GDC officer and any other person or entity
related to that process, (4) the GDC’s use of compounded pentobarbital in executions, including
communications between the GDC and any other person or entity (including pharmaceutical
companies, pharmacies, and other corrections departments) related to the compounding of
pentobarbital, (5) any GDC employee trainings on conducting lethal injections, including the
names and qualifications of the person who taught at the training, and (6) communications
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granted the motion to quash. Plaintiffs appeal, arguing that the district court did
not apply the correct standard of review to the magistrate judge’s ruling, and that
the motion to quash should have been denied on the merits. After careful review,
we affirm.
PROCEDURAL BACKGROUND
This appeal is an offshoot of a § 1983 action filed by Plaintiffs in the
Southern District of Mississippi. Plaintiffs are Mississippi death row inmates who
challenge the constitutionality of Mississippi’s lethal injection protocol.
Mississippi’s protocol recently was changed from a single injection procedure
using only sodium pentothal or pentobarbital to a three-drug procedure that
requires the serial injection of: (1) either compounded pentobarbital or midazolam
(a sedative/anesthetic), (2) vecuronium bromide (a paralytic), and (3) potassium
chloride (which stops the heart). According to Plaintiffs, there is a substantial risk
that neither compounded pentobarbital nor midazolam—the first drug in the
series—will sufficiently anesthetize the condemned inmate. Consequently,
Plaintiffs claim, an inmate who is injected with either drug could remain conscious
between the GDC and any other corrections department or attorney general’s office related to the
selection, purchase, or exchange of drugs for use in lethal injections. Responding to any of these
demands would require disclosure of the identity of people and entities that manufacture or
supply drugs used in Georgia executions, and that otherwise participate in Georgia executions, in
violation of the Lethal Injection Secrecy Act.
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and fully sensate and thus experience suffocation when the second drug in the
series—the paralytic vecuronium bromide, which renders the inmate unable to
breathe—is administered. Making matters worse, Plaintiffs contend, vecuronium
bromide prevents all muscular movement and thus masks the pain that potassium
chloride—the third and final drug in the series—is known to inflict in the absence
of adequate anesthesia. Plaintiffs also argue that the use of compounded
pentobarbital—in and of itself—can be painful to the inmate because of the
possibility that the pentobarbital will be made of counterfeit ingredients or that it
will be contaminated during the compounding process. Plaintiffs argue that
Mississippi’s three-drug lethal injection protocol thus creates an unacceptable risk
of severe and unnecessary suffering, in violation of the Eighth Amendment.
To prevail on their Eighth Amendment claims, Plaintiffs must show that
there is an alternative to Mississippi’s three-drug protocol that is both “known and
available” and that significantly reduces the risk of severe pain to the inmate. See
Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015). To meet that burden, Plaintiffs
point to alternative lethal injection protocols used by other states, including
Georgia. The GDC has used a one-drug protocol that requires a single injection of
compounded pentobarbital in its most recent executions. Asserting that the single-
injection pentobarbital protocol might, in theory, reduce the risk of pain to the
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condemned inmate, Plaintiffs contend that it is a known and available alternative to
Mississippi’s three-drug protocol.
The Mississippi defendants2 dispute Plaintiffs’ claim that pentobarbital is
available to them, asserting at various times in the underlying § 1983 action that
they are unable to acquire pentobarbital, even in its compounded form. For
example, in their answer to Plaintiffs’ complaint, the Mississippi defendants denied
that a single-drug procedure using pentobarbital was a feasible alternative to
Mississippi’s three-drug protocol. They subsequently filed a motion to dismiss
Plaintiffs’ § 1983 action under Glossip, citing the sworn testimony of Mississippi
Department of Corrections officials stating that they had tried, but been unable to
find a source of pentobarbital. In a hearing on the motion, the attorney for the
Mississippi defendants emphasized that state corrections officials had not been
able to obtain pentobarbital for use in executions despite a diligent search.
Plaintiffs acknowledge that pentobarbital has become difficult to acquire: a
fact that is no surprise to them given that death penalty opponents have vigorously
lobbied drug manufacturers to make this drug entirely unavailable for use in
American executions. But Plaintiffs argue that it must be possible to obtain
pentobarbital in some form because a few states, like Georgia, have found
2
The Mississippi defendants include the Commissioner of the Mississippi Department of
Corrections and various other state officials who are involved in implementing executions in
Mississippi and who have been named in Plaintiffs’ § 1983 complaint.
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compounding pharmacies that agree to provide pentobarbital on condition of strict
anonymity. Accordingly, trying to unmask the GDC’s source for this drug,
Plaintiffs served the GDC with the non-party subpoena that is at issue in this
appeal. The subpoena directs the GDC to appear at a Rule 30(b)(6) deposition and
to produce documents concerning the feasibility of a one-drug lethal injection
protocol using pentobarbital, including specific details about the GDC’s source and
manner of acquiring pentobarbital.
The GDC filed a motion to quash the subpoena in the Northern District of
Georgia, arguing that the information sought in the subpoena was irrelevant to the
claims asserted in the underlying § 1983 litigation, that it was protected from
disclosure by Georgia’s Lethal Injection Secrecy Act and other privileges, and that
disclosure would impose an undue burden on the State. The motion was referred
to a magistrate judge, who granted the motion to quash. In his written order on the
motion, the magistrate judge relied heavily on the Lethal Injection Secrecy Act,
which precludes the disclosure of the “identifying information” of any person or
entity that participates in a Georgia execution or that supplies the drugs used by the
State in executions. See O.C.G.A. § 42-5-36(d).
Plaintiffs filed objections to the magistrate judge’s ruling, arguing that the
information sought by the subpoena was not privileged. After reviewing those
objections, the district court accepted and adopted the magistrate judge’s decision
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to quash the subpoena. First, the district court determined that the “clearly
erroneous” or “contrary to law” standard applied to its review of the magistrate
judge’s ruling because the motion to quash was a non-dispositive pretrial matter.
The district court then concluded that the magistrate judge’s ruling was neither
clearly erroneous nor contrary to law.
Plaintiffs appeal, arguing that (1) the district court applied the wrong
standard of review to the magistrate judge’s ruling and (2) the motion to quash
should have been denied on the merits.
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to quash a subpoena “only for
an abuse of discretion.” In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015)
(citing Ariel v. Jones, 693 F.2d 1058, 1060 (11th Cir. 1982)). Thus, we will leave
the district court’s ruling on the motion “undisturbed” unless the district court has
“made a clear error of judgment, or has applied the wrong legal standard.”
Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005);
see also SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325,
1333 (11th Cir. 1996) (noting that an abuse of discretion occurs when the district
court makes “a clear error of judgment” or applies “an incorrect legal standard”
(internal quotation marks omitted)).
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DISCUSSION
I. The District Court Applied The Correct Standard Of Review To The
Magistrate Judge’s Ruling On The Motion To Quash
As noted above, the district court reviewed the magistrate judge’s ruling on
the motion to quash under the clearly erroneous or contrary-to-law standard.
According to Plaintiffs, the district court should have reviewed the magistrate
judge’s ruling de novo, and its failure to do so requires reversal under the Federal
Magistrate’s Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil
Procedure.
The standard of review the district court was required to apply depends on
whether we characterize the GDC’s motion to quash as a dispositive or a non-
dispositive matter. See 28 U.S.C. § 636(b)(1). Pursuant to the Federal
Magistrate’s Act, a district court reviews a magistrate judge’s ruling on non-
dispositive matters under the clearly-erroneous or contrary-to-law standard. Id.§ 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“When a pretrial matter not
dispositive of a party’s claim or defense is referred to a magistrate judge to hear
and decide . . . [t]he district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly erroneous or is contrary to
law.”). But if the matter is dispositive, the district court must review any objected-
to portion of the magistrate judge’s ruling de novo. 28 U.S.C. § 636(b)(1).
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The Federal Magistrate’s Act lists several examples of motions that qualify
as dispositive matters, including motions for injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss or quash an indictment, to suppress
evidence in a criminal case, to dismiss or permit maintenance of a class action, to
dismiss for failure to state a claim, and to involuntarily dismiss an action.
Id. § 636(b)(1)(A). Unsurprisingly, a routine pretrial discovery motion, such as the
motion to quash at issue in this case, is not included in this list of dispositive
motions. See In re Comm’r’s Subpoenas, 325 F.3d 1287, 1292 n.2 (11th Cir.
2003) (“The district court correctly observed that the standard of review by which
it reconsidered the magistrate judge’s [order quashing subpoenas] is ‘clearly
erroneous or contrary to law.’” (citing 28 U.S.C. § 636(b)(1)(A))), overruled on
other grounds by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241(2004); Maynard v. Bd. of Regents of the Div. of Univ. of the Fla. Dep’t of Ed., 342
F.3d 1281, 1286 (11th Cir. 2003) (characterizing a magistrate judge’s discovery
rulings as non-dispositive orders and holding that the plaintiff’s failure to object to
the rulings in the district court waived his right to appeal them).
Indeed, Plaintiffs do not dispute that had the GDC’s motion to quash been
filed in the Southern District of Mississippi, where the underlying § 1983 action is
pending, the motion would be considered non-dispositive and a magistrate judge’s
ruling on it would be reviewed under the clearly-erroneous or contrary-to-law
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standard. Yet, Plaintiffs argue that the magistrate judge’s ruling on the motion to
quash filed in this case should be considered dispositive—and thus reviewed under
the de novo standard—because it resolves and finally disposes of the litigation
between Plaintiffs and the GDC that is pending in the Northern District of Georgia.
This argument is unpersuasive. The GDC’s motion to quash required
separate litigation between Plaintiffs and the GDC in the Northern District of
Georgia only because the place for compliance with the subpoena—and thus the
proper venue for filing a motion to quash—happened to be in the Northern District
of Georgia, not in Mississippi. See Fed. R. Civ. P. 45(c), (d)(3). And the
magistrate judge’s ruling on the motion resulted in a final disposition of the issues
raised in the motion, permitting Plaintiffs to appeal the ruling to this Court. See
Ariel, 693 F.2d at 1059 (noting that a litigant would have “no other means of
effectively obtaining review” of such a ruling if it were not considered final for
purposes of appeal). But that does not somehow transform into a dispositive ruling
a routine pretrial discovery motion that is ancillary to the underlying § 1983
litigation pending in the Southern District of Mississippi.
In short, we find no reason to treat the magistrate judge’s ruling on the
GDC’s motion to quash any differently than we would treat a similar pretrial
discovery motion had it been filed in the district where the underlying § 1983
action is pending: the Southern District of Mississippi. As such, we conclude that
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the district court correctly applied the clearly-erroneous or contrary-to-law
standard of review to the magistrate judge’s ruling on the motion to quash.
II. The District Court Did Not Abuse Its Discretion By Affirming The
Magistrate Judge’s Ruling To Grant The GDC’s Motion To Quash
Having concluded that the district court applied the correct standard of
review, the only question for this Court is whether the district court otherwise
abused its discretion—by either relying on an error of law or committing a clear
error of judgment—when it affirmed the magistrate judge’s ruling and granted the
GDC’s motion to quash. See Ameritas Variable Life Ins., 411 F.3d at 1330. In
essence, Plaintiffs argue on appeal that the quashing of their subpoena amounts to
the improper creation of a new federal evidentiary privilege.3 We disagree with
Plaintiffs’ characterization, conclude that the district court did not abuse its
3
Plaintiffs also argue that the district court should have required the GDC to submit a privilege
log before granting the motion to quash. See Fed. R. Civ. P. 45(e)(2)(A)(ii) (requiring a person
withholding subpoenaed information under a claim of privilege to “describe the nature of the
withheld documents [or] communications”). Given the primary focus of the GDC subpoena, we
are unpersuaded by Plaintiffs’ argument. The purpose of requiring a privilege log is to “enable
the parties to assess [a] claim” of privilege. Id. Here, it is apparent from the face of the
subpoena that the information sought therein falls within the plain language of the Lethal
Injection Secrecy Act. More importantly, the only information with even arguable relevance to
Plaintiffs’ § 1983 claims—that is, information identifying Georgia’s source of compounded
pentobarbital, which Plaintiffs argue is necessary to show that pentobarbital is a known and
available alternative to Mississippi’s three-drug protocol, as required for Plaintiffs to prevail
under Glossip—is directly barred from disclosure by the Act. The remainder of the information
sought is either readily available to the public (for example, Georgia’s lethal injection protocols
from 2010 to the present) or of limited relevance to Plaintiffs’ burden under Glossip to point to a
known and available alternative to Mississippi’s three-drug protocol (for example, documents
related to the process by which Georgia determined that it would or would not use midazolam in
its executions). Thus, the district court did not abuse its discretion by quashing the subpoena in
its entirety, and without first requiring the GDC to submit a privilege log.
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discretion in granting the motion to quash, and, accordingly, we affirm the district
court’s order.
A. The Relevance of the Information Sought in the GDC Subpoena
to the Pending § 1983 Mississippi Litigation Is Highly
Questionable
For purposes of discovery, a party may subpoena information from a non-
party to litigation, but Federal Rule of Civil Procedure 45 protects the subpoena
recipient by requiring the issuer to “take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena” and by setting out several
mandatory and discretionary grounds for quashing a subpoena. See Fed. R. Civ. P.
45(d)(1), (3). While Rule 45 does not specifically identify irrelevance as a reason
to quash a subpoena, it is generally accepted that the scope of discovery allowed
under Rule 45 is limited by the relevancy requirement of the federal discovery
rules.4 See Fed. R. Civ. P. 26(b)(1) (stating that discovery is allowed to the extent
it is “relevant to [a] party’s claim or defense”); Advisory Committee Note to the
1970 Amendments to Rule 45 (noting that the 1970 amendments “make it clear
that the scope of discovery through a subpoena is the same as that applicable to
4
Federal courts in this circuit have uniformly applied this principle. See Am. Fed. of State,
County and Mun. Employees (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 476 (S.D. Fla.
2011) (“Federal courts . . . have treated the scope of discovery under a subpoena [a]s the same as
the scope of discovery under Rule 26.”); Williams v. City of Birmingham, 323 F. Supp. 3d 1324,
1329 (N.D. Ala. 2018) (“The scope of permissible discovery with respect to a Rule 45 subpoena
is that which is set forth in [Federal Rule of Civil Procedure] 26(b)(1)[.]”).
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Rule 34 and the other discovery rules”). Thus, a subpoena issued under Rule 45
should be quashed to the extent it seeks irrelevant information.
As indicated by the language of Rule 26, the relevance of information sought
in discovery depends on the claims asserted in the underlying action and the legal
standards that govern those claims. See Fed. R. Civ. P. 26(b)(1) (permitting
discovery of nonprivileged matter that is “relevant to any party’s claim or
defense”); see also Fed. R. Evid. 401 (stating that information is relevant if it has a
“tendency to make a fact more or less probable” and “the fact is of consequence in
determining the action”). To determine the relevance of information sought by
Plaintiffs in the GDC subpoena, one must examine the showing that Plaintiffs must
make in order to prove the Eighth Amendment claims they assert in the underlying
Mississippi litigation: (1) that Mississippi’s method of execution presents a
“substantial risk of serious harm” because it is likely to cause “serious illness and
needless suffering” and (2) that there is “an alternative” to the challenged method
of execution that is “feasible, readily implemented, and in fact significantly
reduces a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (quoting
Baze v. Rees, 553 U.S. 35, 50–52 (2008) (alteration adopted) (internal quotation
marks omitted).
The GDC subpoena seeks information concerning Georgia’s supply and use
of pentobarbital in a single-drug lethal execution protocol. Such information
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obviously has no relevance to the first prong of the Eighth Amendment analysis—
the risk of harm presented by Mississippi’s method of execution. But although he
ultimately decided that the subpoena should be quashed, the magistrate judge
concluded that information concerning Georgia’s supply and use of pentobarbital
in a single-drug protocol is relevant to the second prong of the Eighth Amendment
analysis because it could prove “the existence of a feasible alternative” to
Mississippi’s lethal injection protocol.
As explained at greater length below, we find it very questionable that the
information sought by Plaintiffs is relevant to even the second prong of Plaintiffs’
Eighth Amendment claim in the underlying Mississippi action. First, that Georgia
has found a supplier who, under a statutory assurance of absolute confidentiality,
provides pentobarbital to Georgia officials for their use in executions has very little
bearing on whether pentobarbital is a feasible alternative to Mississippi’s
challenged lethal injection protocol, absent some reason to believe that Georgia’s
anonymous pentobarbital supplier would supply the drug to Mississippi if its
identity is unmasked in this litigation. And, as the actions of lethal injection drug
suppliers around the nation clearly indicate, it is highly unlikely that Georgia’s
pentobarbital supplier will provide the drug to Mississippi if its identity is
disclosed pursuant to the GDC subpoena. After all, if this anonymous supplier
wanted to market the drug to Mississippi, nothing is stopping it from doing so.
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Moreover, it is quite predictable that the supplier will stop providing the drug to
Georgia once its identity is disclosed.
Second, to prevail on their Eighth Amendment claims, Plaintiffs must show
not only the existence of a feasible alternative but also that this feasible alternative
“in fact significantly reduces a substantial risk of severe pain.” Glossip, 135 S. Ct.
at 2737 (internal quotation marks omitted). Yet, Plaintiffs’ own allegations in the
Mississippi complaint reveal their additional contention that use of compounded
pentobarbital in an execution would itself create a risk of severe pain, meaning that
they also challenge the constitutionality of the use of this substance.
1. Information concerning Georgia’s supply and use of
pentobarbital in executions cannot help Plaintiffs prove a
feasible alternative to Mississippi’s lethal injection protocol.
That a drug supplier under statutory assurances of absolute confidentiality
has agreed to provide Georgia with pentobarbital for use in executions says
nothing about the willingness of that supplier to provide Mississippi with the drug
should the supplier’s identity be revealed in this litigation. Indeed, we have so
held in the past when a capital litigant before our court argued the existence of a
feasible alternative to the drug protocol used by his state based on the fact that
other states use the particular alternative in question. See Arthur v. Comm’r, Ala.
Dep’t of Corr., 840 F.3d 1268, 1302 (11th Cir. 2016) (“We expressly hold that the
fact that other states in the past have procured a compounded drug and pharmacies
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in Alabama have the skills to compound the drug does not make it available to
[Alabama] for use in lethal injections in executions.”), abrogated on other grounds
by Bucklew v. Precythe, 139 S. Ct. 1112, 1127–29 (2019). Another court in similar
litigation has likewise recognized that a drug supplier operating under a promise of
confidentiality is unlikely to provide another state with lethal injection drugs, and
probably will stop providing the drugs altogether, once its identity is disclosed in
litigation. See McGehee v. Texas Dep’t of Criminal Justice, No. H-18-1546, 2018
WL 3996956, at *9 (S.D. Tex. Aug. 21, 2018). Indeed, Plaintiffs are well aware
that, in their own case, Mississippi’s present lethal injection drug supplier will
refuse to provide Mississippi with drugs for use in executions should its identity be
revealed. See Jordan v. Hall, No. 3:15CV295HTW-LRA, 2018 WL 1546632, at
*8 (S.D. Miss. Mar. 29, 2018).
To understand why lethal injection drug suppliers are so resistant to
disclosure of their identities, one must be aware of the history underlying the
practice of lethal injection in this country, which the Supreme Court helpfully
summarized in Glossip. See Glossip, 135 S. Ct. at 2731–34. As the Glossip Court
explained, the death penalty has been an accepted form of punishment since the
founding of this country, but our views of how it should be implemented have
changed over time, and we have settled on lethal injection as the most humane
means of carrying out a death sentence. See id. at 2731–32 (noting that lethal
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injection “today is by far the most prevalent method of execution in the United
States” (internal quotation marks omitted)); see also Ledford v. Comm’r, Ga. Dep’t
of Corr., 856 F.3d 1312, 1318 (11th Cir. 2017) (“[T]he firing squad, hanging, the
electric chair, and the gas chamber have each in turn given way to more humane
methods [of execution], culminating in today’s consensus on lethal injection.”
(second alteration in original) (internal quotation marks omitted)). Having settled
on lethal injection as the preferred method of execution, states also eventually
settled on a preferred means of implementing an execution by lethal injection: a
three-drug protocol involving (1) an initial injection of sodium thiopental, a fast-
acting barbiturate sedative that induces a deep, comalike unconsciousness, (2) a
second injection of a paralytic agent that inhibits all muscular-skeletal movements
and thus stops respiration, and (3) a third injection of potassium chloride, which
induces cardiac arrest. See Glossip, 135 S. Ct. at 2732. This protocol, which the
Supreme Court held constitutional in Baze, for many years “enabled [s]tates to
carry out the death penalty in a quick and painless fashion.” Id. at 2733.
Although Baze “cleared any legal obstacle” to the three-drug protocol
described above, the Glossip Court explained, “a practical obstacle soon emerged,
as anti-death-penalty advocates pressured pharmaceutical companies to refuse to
supply the drugs used to carry out death sentences.” Id. Their advocacy had its
intended effect: the only American manufacturer of sodium thiopental “was
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persuaded to cease production of the drug.” Id. Then when the manufacturer
announced plans to resume production of the drug in Italy, activists kept the
pressure on and their vigorous advocacy prompted both the manufacturer and the
Italian government to disallow the sale of sodium thiopental for use in American
executions. See id. Ultimately, rather than face the uproar created by death
penalty opponents, the company entirely withdrew sodium thiopental from the
market. See Glossip, 135 S. Ct. at 2733.
Having lost access to sodium thiopental as a result of the vociferous pressure
brought to bear by death-penalty opponents, states were forced to try to find a
different first drug for use in the three-drug lethal injection protocol. They found
such a drug—pentobarbital—which, like sodium thiopental, is a barbiturate that
can reliably induce a coma-like and pain-free state. See id. But anti-death-penalty
advocates once again quickly intervened to pressure the pentobarbital manufacturer
into refusing to provide the drug to states for use in executions. They succeeded.
See id. After being heavily lobbied by death penalty opponents, the Danish
manufacturer of pentobarbital took steps to block the use of the drug in American
executions. See id. As described by the Glossip Court, the ultimate outcome of
this very effective advocacy by death penalty opponents has been to make it
difficult—if not impossible—for states to acquire sodium thiopental and
pentobarbital for use in executions, even though it is generally acknowledged that
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the use of either of these drugs renders an execution by lethal injection as humane
as it can possibly be. See id. at 2733–34.
In the wake of these continuing set-backs, some states have managed to find
a compounding pharmacy that is willing to supply pentobarbital for the state to use
in lethal injections. Yet, understandably, given the vehement objection visited on
lethal injection drug manufacturers, these compounding pharmacies have agreed to
supply the compounded pentobarbital only when confidentiality is guaranteed
either by contract or statute. See In re Missouri Dep’t of Corr., 839 F.3d at 734–35
(citing testimony indicating that Missouri’s pentobarbital supplier had advised a
state corrections department official that the supplier would no longer provide the
drug to Missouri if its identity was disclosed); McGehee, 2018 WL 3996956, at *9
(noting that Texas’s pentobarbital supplier had “based its decision to supply
[Texas] with drugs on its identity remaining secret” (internal quotation marks
omitted)); Arthur, 840 F.3d at 1302 (“[W]hile four states ha[ve] recently used
compounded pentobarbital in their own execution procedures . . . none were
willing to give the drug to [Alabama] or name their source.”).
And a growing number of states, including Georgia, have passed laws that
are designed to protect the confidentiality of such pharmacies, as well as the other
people and entities who participate in executions. See O.C.G.A. § 42-5-36(d)(2)
(barring disclosure of lethal injection drug supplier information and classifying
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such information as a “confidential state secret”); Va. Code § 53.1-234 (stating that
the identity of Virginia’s lethal injection drug suppliers “shall be confidential . . .
and shall not be subject to discovery or introduction as evidence in any civil
proceeding unless good cause is shown”); Ohio Revised Code § 2949.221
(providing that information identifying Ohio’s lethal injection drug suppliers “shall
be classified as confidential” and is not subject to “discovery, subpoena, or any
other means of legal compulsion for disclosure”); Tex. Gov’t Code Ann.
§ 552.1081 (exempting lethal injection drug supplier information from the
disclosure requirements of the Texas Public Information Act); Miss. Code Ann.
§ 99-19-51(6)(c) (stating that the identity of lethal injection drug suppliers “shall at
all times remain confidential”).
As explained in the McGehee action in Texas, pharmacies view the
confidentiality provided by these state statutes as a necessary shield against the
“threats, harassment, and 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.” McGehee, 2018 WL
3996956, at *9 (internal quotation marks omitted). See also In re Virginia Dep’t of
Corr. v. Jordan, No. 3:17MC02, 2017 WL 5075252, at *19 (E.D. Va. Nov. 30,
2017) (citing an intimidating email sent to Missouri’s lethal injection drug supplier
threatening that “it only takes one fanatic with a truckload of fertilizer to make a
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real dent in business as usual”), aff’d, Virginia Dep’t of Corr. v. Jordan, 921 F.3d
180 (4th Cir. 2019) ; Arthur, 840 F.3d at 1305 (“Given the controversial nature of
the death penalty, it is not surprising that parties who might supply these drugs are
reluctant to have their names disclosed.”).
Georgia’s secrecy statute, which was enacted in 2013, states that the identity
of any person or entity who participates in a lethal injection is “a confidential state
secret” that is not “subject to disclosure . . . under judicial process.” See O.C.G.A.
§ 42-5-36(d). Thus, the pharmacy that supplied the GDC with the pentobarbital
used in Georgia’s most recent executions did so under the assurance of absolute
confidentiality provided by this Georgia statute. As Glossip has made clear,
should the pharmacy’s identity be revealed as a result of the enforcement of the
present subpoena, there can be no suspense as to what will happen next. Anti-
death penalty advocates will pressure this compounding pharmacy to cease
supplying pentobarbital to any prison system. And if history is a teacher—and it
surely is on this matter—the pharmacy will be forced to knuckle under to this
pressure. Meaning that not only will Georgia no longer have a supplier for the first
drug in its three-drug protocol, but Mississippi will be no closer to finding a
willing supplier of pentobarbital, which is ostensibly the purpose behind Plaintiffs’
subpoena. Thus, as it is quite likely that, once its identity is revealed, the
pharmacy will simply cease to supply the drug to any state, including Georgia,
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there is very little likelihood that the drug-supplier information requested in the
GDC subpoena will help Plaintiffs in their effort to show a feasible alternative to
Mississippi’s lethal injection protocol. See In re Missouri Dep’t of Corr., 839 F.3d
at 736 (“[B]ecause [the supplier] would not supply pentobarbital to Mississippi
once its identity is disclosed, we conclude that [the supplier’s] identity has no
relevance to the inmates’ Eighth Amendment claim.”); Bucklew, 139 S. Ct. at 1129(“[A]n inmate must show that his proposed alternative method is not just
theoretically feasible but also readily implemented” (internal quotation marks
omitted)).
2. Given Plaintiffs’ own challenge to the safety of compounded
pentobarbital as a lethal injection drug, information providing a
source for that drug would not help Plaintiffs show an
alternative method of execution that significantly reduces the
risk of pain involved in a Mississippi execution.
There is a second reason why the information requested by Plaintiffs bears
only marginal relevance to Plaintiffs’ underlying claims in the Mississippi action.
It is undisputed that the only form of pentobarbital the GDC has been able to
acquire in recent years is compounded pentobarbital, and that Georgia has in fact
used compounded pentobarbital in its most recent executions. See Ledford, 856
F.3d at 1315 (noting that in March 2013 Georgia began conducting lethal
injections with a single dose of compounded pentobarbital, rather than the single
dose of FDA-approved pentobarbital it formerly used.). Plaintiffs’ subpoena seeks
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from the GDC information concerning its source of compounded pentobarbital
ostensibly because this information might enable Mississippi to likewise use this
same source to obtain compounded pentobarbital and thereby to utilize a drug that
would be constitutionally acceptable.
Yet, at the same time Plaintiffs offer this rationale to support their claim that
the information is relevant, Plaintiffs’ complaint nonetheless questions the safety
of compounded pentobarbital. Indeed, the Mississippi complaint contains more
than twenty allegations describing the “substantial risk of serious harm and severe
pain” to an inmate who is subjected to a lethal injection using compounded
pentobarbital. Plaintiffs might well respond that the Mississippi complaint
specifically challenges the use of compounded pentobarbital as the first drug in
Mississippi’s three-drug lethal injection protocol, not as the sole drug to implement
the execution. Certainly, some allegations can be so interpreted.
However, in other allegations in the Mississippi complaint, Plaintiffs clearly
question the safety of compounded pentobarbital, no matter what protocol is used.
For example, Plaintiffs allege that compounded drugs are not FDA-approved, are
not subject to regulations that ensure their strength and quality, and have not been
evaluated for effectiveness and safety. Further noting the experimental nature of
compounded pentobarbital, Plaintiffs allege that they will be among the first
prisoners in Mississippi to be executed with compounded pentobarbital. Given the
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uncertainty of the compounding process, Plaintiffs allege that “a substantial risk of
serious harm to Plaintiffs” will result from the use of compounded pentobarbital.
Indeed, Plaintiffs allege that compounded pentobarbital “poses a substantial
risk of serious harm” to the prisoner “by inflicting pain and suffering itself.”
Plaintiffs point to the Oklahoma execution of Michael Lee Wilson, who, after
being injected with compounded pentobarbital, stated: “I feel my whole body
burning.” Wilson’s experience, which the complaint alleges to have been “an
excruciatingly painful reaction” prompted by the injection of compounded
pentobarbital, reveals that “Defendants’ untried and untested drugs create a
substantial risk that Plaintiffs will suffer unnecessary and excruciating pain either
by the injection of the compounded pentobarbital causing a painful reaction itself,
or by the compounded pentobarbital failing to work, resulting in a torturous death
by life suffocation and cardiac arrest.” (emphasis added). In short, Plaintiffs allege
that compounded pentobarbital “made with unknown and potentially contaminated
or counterfeit ingredients is nothing short of human experimentation and presents
an unacceptable risk that Plaintiffs will experience unnecessary pain and suffering
if and when they are executed.”
That’s not all. Plaintiffs actually seek an injunction prohibiting the use of
any compounded drug, and particularly compounded pentobarbital, in any
execution. All of which makes one wonder what the point is of outing a supplier
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of a substance, use of which substance Plaintiffs will immediately attack even
should a willing public supplier ever again be located.
Obviously, Plaintiffs’ allegations challenging the safety of compounded
pentobarbital greatly undermine their argument that the identity of Georgia’s
supplier of this substance is relevant to their Eighth Amendment claims. Pursuant
to Baze and Glossip, Plaintiffs cannot prevail on these claims merely by proving
that there is a feasible alternative to Mississippi’s lethal injection protocol. Rather,
they must also prove the existence of a feasible alternative that “would entail a
significantly less severe risk” of pain. See Glossip, 135 S. Ct. at 2737. See also
Bucklew, 139 S. Ct. at 1130 (“A minor reduction in risk is insufficient; the
difference must be clear and considerable.”). Thus, even assuming the information
sought in the GDC subpoena would help Plaintiffs prove that there is some
alternative to Mississippi’s three-drug protocol, that information will not advance
their Eighth Amendment claims unless the proposed alternative substantially
reduces the risk of severe pain to the condemned inmate. See Bucklew, 139 S. Ct.
at 1130.
Plaintiffs fail this test. They appear to have little to nothing to gain by
obtaining information from the GDC about its use of compounded pentobarbital in
executions. At best, enforcement of the GDC subpoena can only provide Plaintiffs
with an alternative method of execution that—besides not being feasible because
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disclosure of the supplier will likely result in its refusal to supply in the future—
Plaintiffs contend to be unconstitutional. See Glossip, 135 S. Ct. at 2737(“[P]risoners cannot successfully challenge a [s]tate’s method of execution merely
by showing a slightly or marginally safer alternative. Instead, prisoners must
identify an alternative that is feasible, readily implemented, and in fact
significantly reduces a substantial risk of severe pain.” (internal quotation marks
and citation omitted)).
This conclusion renders problematic Plaintiffs’ argument that the
information requested is relevant. Nonetheless, as explained below, even if the
information sought in the GDC subpoena is relevant to the claims asserted in the
underlying Mississippi litigation, the subpoena must still be quashed under the
provision of Federal Rule of Civil Procedure 45(d)(3)(A) requiring that result when
a subpoena “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).
B. Potential Pertinent Grounds for Quashing the Present Subpoena
Georgia’s Lethal Injection Secrecy Act states that:
The identifying information of any person or entity who participates in
or administers the execution of a death sentence and the identifying
information of any person or entity that manufactures, supplies,
compounds, or prescribes the drugs, medical supplies, or medical
equipment utilized in the execution of a death sentence shall be
confidential and shall not be subject to disclosure . . . under judicial
process.
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O.C.G.A. § 42-5-36(d)(2). The Act defines “identifying information” to include
“any records or information that reveals a name, residential or business address,
residential or business telephone number, day and month of birth, social security
number, or professional qualifications” of a person or entity that “manufactures,
supplies, [or] compounds” lethal injection drugs. Id. § 42-5-36(d)(1), (2). It
classifies such information as “a confidential state secret.” Id. § 42-5-36(d)(2).
Rule 45(d)(3) provides several potential grounds for quashing the GDC
subpoena: some of them mandatory and some discretionary. Among the
mandatory grounds, a subpoena must be quashed if it requires disclosure of
“privileged or other protected matter” (Rule 45(d)(3)(A)(iii)) or if the subpoena
“subjects a person to undue burden” (Rule 45(d)(3)(A)(iv)). Among the
discretionary grounds, Rule 45(d)(3)(B)(i) gives the district court the authority to
quash a subpoena that would require the disclosure of trade secrets and other
confidential information. In relevant part, the discretionary rule states that a
district court may quash a subpoena that requires “disclosing a trade secret or other
confidential research, development, or commercial information.” Fed. R. Civ. P.
45(d)(3)(B)(i).
The magistrate judge’s explanation of his reasoning in quashing the
subpoena was admittedly quite spare. Indeed, he did not cite Rule 45 at all in his
written order. Yet, both his comments at the hearing and his written order indicate
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that he considered the interests underlying all three provisions to be apt in
determining whether the motion to quash was meritorious.5
As to the provision of Rule 45 permitting the quashing of a subpoena that
seeks to disclose trade secrets and other confidential information—Rule
45(d)(3)(B)(i)—“courts weigh the claim to privacy against the need for
disclosure.” See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce
Fenner & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006); see also United
States ex rel. Willis v. SouthernCare, Inc., No. CV410-124, 2015 WL 5604367, at
*5 (S.D. Ga. Sept. 23, 2015) (applying a balancing test to the Rule 45(d)(3)(B)(i)
analysis to determine “whether the need for disclosure outweighs [the] claim to
privacy”). Certainly, the interests sought to be protected by the trade-secret
provision in Rule 45 are analogous to those the State seeks to protect by preventing
any disclosure of information revealing the identity of persons connected with the
supplying of compounded pentobarbital. That Georgia has deemed the source of
the drug to be a “confidential state secret,” O.C.G.A. § 42-5-36(d)(2), and has
5
His statements during the hearing on the motion to quash indicated the need to factor into his
analysis the heavy burden that compliance with the GDC subpoena would impose on the state.
For example, the magistrate judge noted the need to balance Plaintiffs’ need for the information
requested in the subpoena in the underlying Mississippi litigation with the “need[] to keep the
information quiet.” In his written order, he alluded to the need to decide whether the information
sought in the GDC subpoena was “privileged or otherwise protected.” Finally, it is apparent that
the magistrate judge viewed the information sought in the subpoena as protected from disclosure
due to its highly confidential nature.
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formalized that characterization via a statute forbidding disclosure demonstrates
the importance the State places on maintaining the confidentiality of this
information. Indeed, this Court has acknowledged that disclosure of the
information would threaten the State’s ability to fully enforce its criminal
sentencing laws. Gissendaner v. Comm’r, Ga. Dep’t of Corr., 803 F.3d 565, 569
(11th Cir. 2015) (“Gissendaner II”). Yet, we are aware of no authority that has
expanded the trade-secret provision, which is typically applied in commercial
contexts, to a scenario such as this. Thus, we do not base our affirmance on this
ground.
As to the provision of Rule 45 that mandates the quashing of a subpoena that
would require the disclosure of “privileged or other protected matter” (Rule
45(d)(3)(A)(iii)), the existence of a Georgia statute prohibiting disclosure does not,
by itself, give rise to a federal privilege. Federal evidentiary privileges in federal
question litigation arising in federal court are governed by federal law, and a state
evidentiary privilege does not automatically give rise to a federal evidentiary
privilege. See Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992) (“A claim of
privilege in federal court is resolved by federal common law, unless the action is a
civil proceeding and the privilege is invoked with respect to an element of a claim
or defense as to which State law supplies the rule of decision.” (internal quotation
marks omitted)). And while federal courts are empowered by Federal Rule of
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Evidence 501 to recognize new federal privileges arising from state law, they
generally are hesitant to do so. See Doe No. 1 v. United States, 749 F.3d 999, 1009
(11th Cir. 2014) (observing that Congress has empowered the federal courts
through Rule 501 to recognize new privileges, but that there is a presumption
against doing so).
But the text of Rule 45(d)(3)(A)(iii) indicates that the protection of that
specific provision extends beyond the strict bounds of “privileged” information to
encompass “other protected matter.” Fed. R. Civ. P. 45(d)(3)(A)(iii). While
caselaw has not fleshed out the definition of the term “other protected matter,”
there are certainly sound arguments here sufficient to prompt consideration
whether the confidentiality agreement between the State of Georgia and the
undisclosed pentobarbital supplier, safeguarded by a state statute forbidding
disclosure of that supplier’s identity, constitutes “other protected matter.”
Indeed, federal courts have recognized that privacy interests and
confidentiality concerns can factor into a decision whether to quash a subpoena
under Rule 45, even though the information requested by the subpoena is not
subject to a federal evidentiary privilege. See Alig-Mielcarek v. Jackson, 286
F.R.D. 521, 526–27 (N.D. Ga. 2012) (quashing a plaintiff’s request for nonparty
educational records based in part on the privacy rights protected by the Family
Educational Rights and Privacy Act of 1974 (“FERPA”), which “does not provide
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a privilege preventing disclosure of student records, [but nevertheless] seeks to
protect the confidentiality of educational records”); McGehee, 2018 WL 3996956,
at *11 (noting that the Texas statute exempting lethal injection drug supplier
information from the requirements of a state Public Information Act “exhibits a
democratically manifested intent not to disclose the source of Texas’ lethal
injection drugs” which, though it does not give rise to a federal evidentiary
privilege, should not be ignored). See also Porter v. Ray, 461 F.3d 1315, 1324
(11th Cir. 2006) (affirming refusal to allow discovery of state parole records,
which are not subject to a federal evidentiary privilege, based in part on
confidentiality considerations); McGoy v. Ray, 164 F. App’x 876, 878 (11th Cir.
2006) (holding that the district court did not abuse its discretion when it found that
the facts asserted by the plaintiff were insufficient to compel discovery of
confidential parole records, which were designated a confidential state secret by
state statute).
Moreover, when focusing on the need for protection, it is not just protection
for the State and its interests that are at issue here. When a citizen is assured via a
state statute that his identity will be protected if, at some great physical and
economic risk to himself, he provides a service to the state, that promise should not
be lightly discarded.
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Nevertheless, we do not base our decision to affirm the district court’s
quashing of Plaintiff’s third-party subpoena on the trade-secret provision or the
“other protected matter” provision set out in Rule 45(d)(3)(B)(i) and
45(d)(3)(A)(iii), respectively. Although the interests underlying those provisions
inform our ultimate analysis, we conclude that Plaintiffs’ subpoena was required to
be quashed because it subjected the GDC to an “undue burden,” which, pursuant to
Rule 45(d)(3)(A)(iv), mandates the quashing of the subpoena.
C. Compliance with Plaintiffs’ Subpoena Would Impose an Undue
Burden on the State of Georgia
Even if Rule 45(d)(3)’s protection of a “trade secret,” of “confidential
information,” and of “other protected matter” is inapt here for purposes of
quashing the GDC subpoena, it is clear that compliance with this subpoena would
impose an “undue burden” on the State of Georgia. It therefore must be quashed
pursuant to Rule 45(d)(3)(A)(iv), which makes mandatory the quashing of any
subpoena that would impose such a burden on the target of the subpoena.
The undue burden analysis requires the court to “balance the interests served
by demanding compliance with the subpoena against the interests furthered by
quashing it.” 9A Wright & Miller, Federal Practice and Procedure § 2463.1 (3d
ed. 2019). See also Virginia Dep’t of Corr., 2017 WL 5075252, at *5, *10
(applying the undue burden analysis). Several factors have been identified as
pertinent to the analysis, including the “relevance of the information requested” to
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the underlying litigation and the “burden [that would be] imposed” by producing it.
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). The
status of the subpoena recipient as a non-party is also a factor that can weigh
against disclosure in the undue burden inquiry. See id. (“[I]f the person to whom
the document request is made is a non-party, the court may also consider the
expense and inconvenience to the non-party.”).
1. Prior Litigation Concerning the Lethal Injection Secrecy Act
As discussed above, Georgia passed the Lethal Injection Secrecy Act in
response to the concerted effort by death penalty opponents to make lethal
injection drugs unavailable for use in American executions. See Owens v. Hill,
295 Ga. 302, 317 (2014) (describing the rationale underlying the passage of
Georgia’s Lethal Injection Secrecy Act). One can reasonably infer that it is only
because of this statute that Georgia has been able to secure a source of
pentobarbital for use in executions despite its relative scarcity. And Georgia’s
ability to obtain compounded pentobarbital would be jeopardized were it not for
the confidentiality provided by the Lethal Injection Secrecy Act. See id.(“[W]ithout the confidentiality offered to execution participants by the statute, as
the record and our case law show, there is a significant risk that persons and
entities necessary to the execution would become unwilling to participate.”); see
also Gissendaner II, 803 F.3d at 569 (“To require . . . that Georgia open up about
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its source of pentobarbital would result in the drug becoming completely
unavailable for use in executions, even though its use does not violate the Eighth
Amendment.”), cert. denied sub nom., Gissendaner v. Bryson, 136 S. Ct. 26(2015).
This Court has had several opportunities to consider the legality and the
implications of the Lethal Injection Secrecy Act. See Gissendaner II, 803 F.3d at
569; Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266–67 (11th Cir.
2014), cert. denied sub nom., Wellons v. Owens, 573 U.S. 928 (2014); Terrell v.
Bryson, 807 F.3d 1276, 1277 (11th Cir. 2015); Jones v. Comm’r, Ga. Dep’t of
Corr., 811 F.3d 1288, 1292–94 (11th Cir. 2016). In these cases—which involved
Georgia death row prisoners who were seeking information concerning the source
of Georgia’s compounded pentobarbital—this Court deferred to the Lethal
Injection Secrecy Act, recognizing that the confidentiality provided by the Act is
necessary to protect Georgia’s source of pentobarbital for use in executions and
concluding that the condemned inmates in these cases had no right to the
disclosure of information made confidential by the Act, including information that
would identify the supplier or source of the drugs to be used in the inmate’s
execution. See Jones, 811 F.3d at 1292–94 (reviewing this Court’s case law
applying the Lethal Injection Secrecy Act).
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Admittedly, the decisions in those cases did not address the quashing of a
non-party subpoena under Rule 45(d)(3)(A)(iv). But they acknowledged the
states’ significant interest in keeping information about the source of their lethal
injection drugs secret.
2. Litigation In Other Circuits Concerning Disclosure of
Confidential Information Concerning a State’s Source For a
Drug Used in Executions
Courts in other circuits have considered the question before us in a Rule 45
context and have concluded that disclosure of lethal-injection-drug-supplier
information—such as the information sought in the GDC subpoena—would
impose an undue burden on a state. See In re Missouri Dep’t of Corr., 839 F.3d at
736 (granting a writ of mandamus precluding the disclosure of Missouri’s
pentobarbital supplier on relevancy and undue burden grounds); In re Ohio
Execution Protocol Litig., 845 F.3d 231, 239 (6th Cir. 2016) (affirming the district
court’s Rule 26(c) protective order precluding disclosure of information that could
reveal the identity of Ohio’s lethal injection drug supplier because disclosure
would impose an “undue burden” on the state); Virginia Dep’t of Corr., 2017 WL
5075252, at *3, *11 (granting the Virginia Department of Correction’s motion to
quash a subpoena to the extent the information sought in the subpoena “might lead
to the disclosure of the supplier of the chemicals the VDOC utilizes in carrying out
an execution or to the disclosure of the identities of the members of the VDOC
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execution team”); McGehee, 2018 WL 3996956, at *10 (concluding that full
compliance with a subpoena served on the Texas Department of Criminal Justice,
and seeking lethal injection drug supplier information, would create an undue
burden on the state). These courts have held that a subpoena seeking such
information must therefore be quashed under Rule 45(d)(3)(A)(iv).
The rationale of these decisions is best illustrated by the Eighth Circuit’s
undue burden analysis in a case involving the state of Missouri and the same
Mississippi death row inmates who served the GDC subpoena that is at issue here.
See In re Missouri Dep’t of Corr., 839 F.3d at 736. In that case, the Mississippi
death row inmates served a third-party subpoena on the Missouri Department of
Corrections, seeking “information regarding [Missouri’s] use of pentobarbital in
executions, including the identity of [Missouri’s] anonymous supplier.” See id. at
734. Missouri corrections officials moved to quash the subpoena in the district
court on various grounds, including undue burden under Rule 45(d)(3)(A)(iv). See
id. In support of their undue burden argument, the Missouri officials submitted an
affidavit from the director of the state corrections department explaining that
“because [Missouri’s] pentobarbital suppliers require the assurance of
confidentiality, producing the information sought by the inmates would result in
the state no longer being able to obtain the drug for use in executions.” Id.
(internal quotation marks omitted).
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The district court rejected the undue burden argument and denied the motion
to quash, and the Eighth Circuit initially denied Missouri’s petition for a writ of
mandamus to prevent enforcement of the district court’s ruling. See id. at 735.
But upon rehearing, and based on its conclusion that Missouri’s pentobarbital
supplier would not provide the drug to Mississippi prison officials—and that it
would in fact stop providing the drug even to Missouri if its identity were revealed
pursuant to the subpoena—the Eighth Circuit held that disclosure of the
information sought in the subpoena would impose an undue burden on Missouri.6
In re Missouri Dep’t of Corr., 839 F.3d at 736. The court explained that Missouri
has an interest in “exercising its sovereign power” to enforce its criminal laws, and
that this interest would be harmed if disclosure of the drug supplier information
requested in the subpoena caused Missouri to lose access to the drugs necessary to
carry out a lawfully imposed death sentence. See id. Noting that the Missouri drug
supplier information had “little, if any, relevance to” the Eighth Amendment
claims asserted by the Mississippi inmates, given the supplier’s reluctance to
provide the drugs to Mississippi, the court concluded that the harm of disclosure
“clearly outweighs the need of the inmates” for the information, and that
6
The court also noted that the drug supplier information would not “remain relevant” to the
claims asserted by the plaintiffs if, upon disclosure of its identity, the drug supplier “indisputably
refuses to make pentobarbital available to anyone” including Mississippi. See In re Missouri
Dep’t of Corr., 839 F.3d at 736.
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compliance with the subpoena would thus impose an “undue burden” on Missouri.
Id. at 736–37.
Although it was not mentioned in the Missouri decision, several of the courts
that have denied disclosure of lethal injection drug supplier information pursuant to
an undue burden analysis have relied in part on state secrecy statutes that—like
Georgia’s Lethal Injection Secrecy Act—are intended to maintain the
confidentiality of such information. See In re Ohio Execution Protocol Litig., 845
F.3d at 237 (noting that the district court “identified—as non-dispositive
evidence—the existence of Ohio’s secrecy statute” in support of its Rule 26(c)
undue burden holding); Virginia Dep’t of Corr., 2017 WL 5075252, at *18–19
(citing Va. Code Ann. § 53.1-234, which provides that the identities of lethal
injection drug suppliers are confidential, exempt from the state Freedom of
Information Act, and not subject to discovery unless good cause is shown);
McGehee, 2018 WL 3996956, at *7 (citing Tex Gov’t Code Ann. § 552.1081,
which exempts from the Texas Public Information Act disclosure of “identifying
information” of lethal injection drug suppliers).
None of the courts in these cases held that the state secrecy statutes created a
new federal evidentiary privilege that absolutely bars the disclosure of lethal
injection drug supplier information. See In re Ohio Execution Protocol Litig., 845
F.3d at 239 (rejecting the suggestion that the district court’s reliance on the statute
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had “federalize[d] the Ohio secrecy law as a common-law privilege for
immunity”). Rather, the courts viewed the state statutes as evidence of the need
for confidentiality with respect to such information, which need weighs heavily in
the undue burden analysis. See id. at 237 (describing the concerns that led to the
creation of Ohio’s secrecy statute: “the burden on and prejudice to the state that
disclosure presents” (internal quotation marks omitted)); Virginia Dep’t of Corr.,
2017 WL 5075252, at *19 (characterizing the Virginia secrecy statute as “an
evidentiary ‘add-on’ to the reasons counseling against disclosure”); McGehee,
2018 WL 3996956, at *7 (recounting the events that led to the enactment of the
Texas secrecy statute, which included a “firestorm of angry emails, protests, and
media coverage that ultimately dissuaded [a Texas pharmacy] from continuing to
supply the TDCJ with lethal-injection drugs” (internal quotation marks omitted)).
Like those courts that have expressly addressed the relevance of state
secrecy statutes in this context, we view Georgia’s Lethal Injection Secrecy Act,
not as creating a new federal evidentiary privilege, but as evidence of the need to
maintain the confidentiality of the lethal injection drug supplier information
requested in the GDC subpoena, which need clearly outweighs any interest
Plaintiffs might otherwise have in obtaining the information. And like those
courts, we agree that the undue burden provision of Rule 45(d)(3)(A)(iv) applies to
bar disclosure of lethal injection drug supplier information when such disclosure
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would jeopardize a state’s ability to implement its death penalty laws. We explain
our thinking.
3. Application of Undue Burden Standard to the Present Case
We conclude (1) that Georgia has a strong interest in enforcing its criminal
laws, including its death penalty laws; (2) that disclosure of the information
requested in Plaintiffs’ subpoena would clearly burden that interest; (3) that the
relevance of the information to Plaintiffs’ Mississippi case is marginal to non-
existent; and (4) that Georgia’s interests clearly outweigh Plaintiffs’ interests in
disclosure.
Georgia obviously has a strong interest in enforcing its criminal laws. See In
re Blodgett, 502 U.S. 236, 239 (1992) (noting the “great weight” of a state’s
interest in “exercising its sovereign power to enforce the criminal law”). This
interest encompasses the state’s ability to implement a lawfully imposed death
sentence. See In re Ohio Execution Protocol Litig., 845 F.3d at 240 (citing
authority for the proposition that a state “has an essential interest in carrying out a
lawfully imposed sentence”); see also Nelson v. Campbell, 541 U.S. 637, 644
(2004) (calling the state’s interest in implementing its death penalty laws
“significant”). That Plaintiffs and others oppose the death penalty cannot justify
providing Plaintiffs with a means to effectively end Georgia’s ability to carry out
its death sentences. In re Ohio Execution Protocol Litig., 845 F.3d at 240
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(observing that “[o]pprobrium alone” should not be permitted to subvert this
significant state interest.).
Second, as discussed at great length above, disclosure of the information
sought by Plaintiffs in the GDC subpoena would greatly jeopardize Georgia’s
ability to implement its criminal laws because disclosure of the identity of its
supplier would likely result in the loss of that source of supply. To summarize, and
as recognized by the Supreme Court in Glossip, the historical record reveals that
disclosure of the supplier for a particular drug used by a state in executions will
have predictable consequences: anti-death penalty advocates will hound the
supplier of that drug until the supplier capitulates and ceases supplying the drug.
And without that drug or something comparable, the state’s executions will
necessarily cease. See discussion supra at 15–19.
Indeed, unable to obtain either sodium thiopental or pentobarbital—drugs
that have been recognized as providing a humane method of lethal injection—as a
result of the actual or feared retaliation by anti-drug penalty advocates, some states
have turned to the drug midazolam, a sedative in the benzodiazepine family of
drugs. Yet, midazolam has been the subject of numerous Eighth Amendment
challenges, including the challenge mounted by Plaintiffs in the underlying
Mississippi litigation. See Glossip, 135 S. Ct. at 2734–35. Other states, including
Georgia, have managed to locate a source of pentobarbital from a compounding
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pharmacy, on the condition that the identity of the pharmacy remain confidential.
See McGehee, 2018 WL 3996956, at *3 (noting that such pharmacies “have
attempted to keep their identit[ies] secret”). To ensure a continuing source of
supply, some states have enacted statutes that protect the anonymity of the source
or to otherwise assure confidentiality. See discussion at 19–22; see also Waldrip v.
Owens, No. 1:14-CV-2119-WCO, 2014 WL 12496989, at *1 (N.D. Ga. July 8,
2014) (“One of the stated intentions of [Georgia’s secrecy] law is to allow the
[s]tate to obtain lethal injection drugs from manufacturers without the
manufacturers having to face criticism from opponents of capital punishment,
which might lead the manufacturers to refuse to provide the drugs.”); Owens, 295
Ga. at 317 (“[W]ithout the confidentiality offered to execution participants by the
statute, as the record and our case law show, there is a significant risk that persons
and entities necessary to the execution would become unwilling to participate.”);
Gissendaner II, 803 F.3d at 569 (“To require . . . that Georgia open up about its
source of pentobarbital would result in the drug becoming completely unavailable
for use in executions, even though its use does not violate the Eighth
Amendment.”); Arthur, 840 F.3d at 1301 (citing testimony indicating that Alabama
was unable to procure compounded pentobarbital for use in lethal injections
despite contacting nearly thirty potential sources of the drug); McGehee, 2018 WL
3996956, at *7 (observing that Texas exempted lethal injection drug supplier
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information from the disclosure requirements of its state Public Information Act
after one such disclosure caused a “firestorm of angry emails, protests, and media
coverage that ultimately dissuaded [a] pharmacy from continuing to supply [Texas]
with lethal-injection drugs” (internal quotation marks omitted)).
Although these state laws do not give rise to a federal evidentiary privilege,
they weigh heavily in the undue burden analysis because they are evidence of the
strong interest states have in preventing disclosure of lethal injection drug supplier
information and the burden to the states that disclosure of such information
imposes. See discussion supra at 35–39.
Third, to determine whether the subpoena subjects the subpoena recipient to
an undue burden, one must identify both that burden as well as the interests served
by demanding compliance with the subpoena. As to the latter inquiry, the
relevance of the requested information to the underlying litigation, or the lack
thereof, is important. In addition, a subpoena recipient’s status as a non-party to
the litigation is also a factor that can weigh against disclosure.
Plaintiffs lose on both counts. GDC is not a party to Plaintiffs’ underlying
litigation with the State of Mississippi. 7 More importantly, and as explained
7
Indeed, the Mississippi district court where the underlying action is pending has entered a
protective order that prohibits Plaintiffs from obtaining drug supplier information even from the
very Mississippi defendants who are parties to that action. See Jordan v. Hall, No.
3:15CV295HTW-LRA, 2018 WL 1546632, at *11 (S.D. Miss. Mar. 29, 2018) (concluding that
“on balance, the hardship to the Defendants of preventing them from obtaining lethal execution
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earlier, the relevance of the subpoenaed information to Plaintiffs’ claims in the
Mississippi case is marginal to non-existent. See discussion supra at 12–26.
Plaintiff’s purported reason for seeking the source of Georgia’s compounded
pentobarbital is to rebut Mississippi’s defense that the latter is unable to find a
source for pentobarbital. In other words, Plaintiffs would seemingly have us
believe that if Plaintiffs could just identify the source of this drug, Plaintiffs could
perhaps broker a deal between Mississippi and the now-anonymous Georgia
supplier for the latter to provide this drug to Mississippi correctional
administrators. Of course, that is a totally incredible argument. As explained
above, once the Georgia supplier is identified, in defiance of a Georgia statute that
promised the supplier confidentiality, there can be no suspense as to what will
happen next. Its identity now unmasked, the supplier will either immediately stop
providing the drug to Georgia or anyone else, or the supplier will eventually be
hounded by anti-death penalty activists until it is forced to cease production of this
substance. In short, disclosure of the supplier’s identity is unlikely to bring
Mississippi any closer to obtaining the compounded pentobarbital, which is the
purported goal behind the subpoena.
drugs outweighs the Plaintiffs’ need for this information, which could be gathered by other
means”).
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Further undermining the relevancy of the requested information to Plaintiffs’
is the fact that Plaintiffs’ assertions suggest that they deem compounded
pentobarbital as itself being unsafe and unconstitutional. In fact, Plaintiffs seek an
injunction against the use of compounded pentobarbital in executions, prompting
one to further wonder what Plaintiffs would gain if we required Georgia to reveal
its source, and thereby renounce its own promise of confidentiality. See discussion
supra at 22–26.
Yet, while it is unlikely that Plaintiffs would gain any information helpful in
pursuing its claims challenging Mississippi’s death penalty protocol should the
subpoena be enforced, it is clear what the GDC would lose: its source for
compounded pentobarbital. Thus, because the interests served by quashing the
subpoena clearly and greatly outweigh the interests served by enforcing it, we
conclude that enforcement would unduly burden the GDC and therefore Rule
45(d)(3)(A)(iv) requires that the subpoena be quashed.
CONCLUSION
For all of the above reasons, we AFFIRM the district court’s order granting
the GDC’s motion to quash.
45