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In re Missouri Department of Corrections

United States Court of Appeals, Eighth Circuit

October 13, 2016

In re: Missouri Department of Corrections, Petitioner

          Submitted: October 3, 2016

         Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

          PER CURIAM.

         The Missouri Department of Corrections ("MDOC") has filed two petitions for writs of mandamus prohibiting the district court from enforcing discovery orders. The first order requires MDOC to produce a detailed privilege log, and the second order requires MDOC to reveal information regarding its use of pentobarbital in executions, including the identity of its anonymous supplier. The anonymous supplier has moved to intervene under the pseudonym M7 and has filed a motion for leave to file a petition of its own. For the reasons stated below, we grant both of MDOC's petitions, and we deny as moot M7's motion for leave to file a petition.

         I. Background

         Richard Jordan and Ricky Chase ("the inmates") are Mississippi death-row inmates whom Mississippi proposes to execute by the serial intravenous injection of three drugs: midazolam, vecuronium bromide, and potassium chloride. In a case presently pending in the United States District Court for the Southern District of Mississippi, these inmates are challenging this execution method as cruel and unusual punishment under the Eighth Amendment. After the court denied a motion to dismiss, the inmates served upon MDOC a third-party subpoena for documents and a Federal Rule of Civil Procedure ("FRCP") 30(b)(6) deposition notice seeking information regarding MDOC's use of pentobarbital in lethal injections, including the identity of MDOC's supplier of pentobarbital.

         MDOC filed a motion to quash the subpoena in the United States District Court for the Western District of Missouri. In support of this motion, it submitted the affidavit of MDOC Director George Lombardi. Lombardi explained that because MDOC'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. In light of this risk, MDOC argued that the inmates' subpoena represented an undue burden under FRCP 45(d)(3)(A)(iv). MDOC also raised other arguments based on sovereign immunity and the state secrets privilege.

         The district court held a hearing on MDOC's motion to quash. During the hearing, the district court questioned the reliability of Lombardi's dire predictions, noting that there seemed to be no "effort to reach out to M7" and that "Lombardi could have said, I called up the pharmacy, I called up M7, and M7 if it's ordered in this federal case, said they're never, ever, ever going to sell again." After considering MDOC's arguments, the district court held that Lombardi's affidavit was "insufficient to establish that Missouri's supplier will no longer supply pentobarbital to Missouri if identified to Respondents" because Lombardi's statement was "a bare, hearsay assertion unsupported by record evidence." As a result, the district court rejected MDOC's arguments, denied MDOC's motion to quash the inmates' subpoena, and ordered MDOC to produce the majority of information the inmates sought as well as a detailed privilege log.

         MDOC then filed in this court petitions for writs of mandamus to prevent the enforcement of these orders. Along with these petitions, MDOC submitted a supplemental affidavit by Lombardi. In this affidavit, Lombardi acknowledged that "the district court questioned the sufficiency of my prior statements regarding this confidentiality." He then declared, "To be clear, MDOC's supplier(s) has advised that if the supplier's identity is disclosed the supplier will no longer supply lethal chemicals to Missouri for use in executions and will not supply lethal chemicals to any other state." Lombardi did not specify when the supplier made this statement or whether MDOC had contacted the supplier regarding this specific litigation.

         Thus, in our original opinion, we held that this affidavit remained inherently speculative. As a result, we rejected MDOC's claims that the information sought was irrelevant to the inmates' claims, that disclosure would result in an undue burden on MDOC, and that the subpoena violated Missouri's sovereign immunity. Furthermore, we noted that MDOC had failed to explain why any alternative means of relief, such as a protective order, would be inadequate. Therefore, we denied MDOC's petitions for writs of mandamus.

         MDOC then filed a petition for rehearing in which it reasserted its previous arguments and added a new argument explaining why it had no adequate alternative means of relief. In addition, M7 moved to intervene and proceed anonymously. M7 submitted a declaration which confirmed the suspicions of both the district court and this court that MDOC had not contacted M7 at any point during the litigation. Instead, M7 averred that MDOC had contacted M7 only after we originally denied MDOC's petitions. Nevertheless, M7 confirmed that, "[i]f disclosure of M7's identity is required, M7 will not supply lethal chemicals to the state of Mississippi. In fact, M7 will no longer supply lethal chemicals at all."

         In light of this new information, we vacated the original panel opinion, granted MDOC's petition for rehearing, invited M7 to submit evidence, and allowed the inmates to respond. M7 also filed a motion for leave to file its own petition for a writ of mandamus, arguing that disclosure would result in an undue burden on M7 and a violation of M7's First Amendment rights.

         II. ...


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