In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016

• Decision Date: 19 December 2016
• Docket Number: Case No. 2:11-cv-1016
• Parties: In re: OHIO EXECUTION PROTOCOL LITIGATION, This Order relates to Plaintiffs Phillips, Tibbetts, and Otte
• Court: U.S. District Court — Southern District of Ohio

In re: OHIO EXECUTION PROTOCOL LITIGATION,

This Order relates to Plaintiffs Phillips, Tibbetts, and Otte

Case No. 2:11-cv-1016

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

December 19, 2016

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

DECISION AND ORDER STAYING THE EXECUTIONS OF PLAINTIFFS PHILLIPS, TIBBETTS, AND OTTE PENDENTE LITE

This capital § 1983 case is before the Court on Motions for Preliminary Injunction of Plaintiffs Ronald Phillips, Raymond Tibbetts, and Gary Otte (ECF Nos. 714, 718, and 715). Part of the relief sought in those Motions is a stay of execution pending final resolution of this litigation.

Plaintiffs Phillips, Tibbetts, and Otte and the State of Ohio Defendants have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the cases of these three Plaintiffs have been referred on that basis (ECF No. 734).

This Decision embodies the findings of fact and conclusions of law required by Fed. R. Civ. P. 52(a)(2).

Recent Procedural History

As of September 1, 2016, Ohio had twenty-six inmates on death row with scheduled execution dates as early as January 12, 2017. At that time, the execution drugs specified in Ohio's Execution Protocol (01-COM-11, eff. 06/29/2015; ECF No. 521-1) were pentobarbital and thiopental sodium only, each as an alternative to the other. Id. at PageID 14167. As best Plaintiffs knew, the Ohio Department of Rehabilitation and Corrections (ODRC) was still trying to obtain a supply of either of those drugs, possibly from a compounding pharmacy, to use in a single-drug lethal injection.

Because there were executions scheduled for the first quarter of 2017 and Plaintiffs had no notice of whether the State was going to be able to proceed, they requested and the Court conducted a status conference on October 3, 2016 (Minutes, ECF No. 655).¹ During the course of that conference, the State of Ohio announced its intention to proceed with the scheduled executions of Messrs. Phillips, Tibbetts, and Otte in the first quarter of 2017 using a new three-drug method and stated that it would promulgate a revised protocol on October 7, 2016.

A year earlier, Judge Frost had granted Ohio a protective order ("Protective Order") requiring

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.⁴ 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.

⁴ At this time, "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" means pentobarbital and thiopental sodium, compounded or not. If Ohio alters its execution protocol to include or substitute other drugs, those drugs would fall under the scope of this protective order unless Plaintiffs persuade this Court that the new drug(s) present some specific necessity for the source-and[-]identity information Plaintiffs would seek.

(ECF No. 629, PageID 19409-10, reported at 2015 U.S. Dist. LEXIS 144926.) Judge Frost then certified the Protective Order decision for interlocutory appeal under 28 U.S.C. § 1292(b) and stayed all further proceedings in the case pending appeal. Id. at PageID 19411.

By the time of the October 3, 2016, status conference, the Sixth Circuit had accepted the appeal sub nomine Fears v. Kasich, Case No. 16-3149, but had not yet decided it. The Court perceived that the first order of business would be discovery in preparation for a preliminary injunction hearing. It vacated the stay as to the above-named Plaintiffs and ordered them to file, by October 28, 2016, "a detailed description of all discovery sought to prepare for a preliminary injunction hearing for these three Plaintiffs." (Order Vacating Stay, ECF No. 658, PageID 19732.) Defendants were ordered to respond by November 4, 2016, "indicating what information it [sic] is willing to produce, in what form, and by what date." Id.

In the same Order, the Court noted the pendency before the Sixth Circuit of Phillips v. DeWine, Case No. 15-3238, and of Fears v. Kasich. In Phillips the plaintiffs appealed District Judge Gregory Frost's decision in Phillips v. DeWine, 92 F. Supp. 3d 702 (S.D. Ohio Feb. 17,2015), dismissing their First Amendment attack on Ohio's execution confidentiality statute (H.B. 663, codified at Ohio Rev. Code § 2949.221 and .222) for lack of standing and failure to state a claim. In the Order Vacating Stay, this Court found that resolution of those two appeals would probably need to be completed before this Court could decide the preliminary injunction motions (ECF No. 658, PageID 19734).

Since the stayed was vacated, the Sixth Circuit upheld Judge Frost's decision in Phillips, concluding Plaintiffs lacked standing to bring some of their constitutional claims and that their remaining claims failed to state constitutional claims for relief. Phillips v. DeWine, 841 F.3d 405 (6^th Cir. Nov. 2, 2016).

Fears v. Kasich was orally argued on November 18, 2016, but no decision has issued as of the date of this Order, even though the presiding judge indicated at the end of the oral argument that the court was aware of the imminence of executions.

Plaintiff Phillips filed as ordered his Notice of Discovery Topics listing twenty-three paragraphs of information, including by reference any Plaintiffs Tibbetts or Otte might seek that would be relevant to his case (ECF No. 697). Plaintiffs Tibbetts and Otte filed jointly and listed thirty-five paragraphs of information, mostly paralleling Phillips' list (ECF No. 698). Both documents list probable deponents and discovery to be sought from third parties.

Defendants responded to both lists with the general comment that "Plaintiffs' overarching discovery plans are an obvious attempt to circumvent [Ohio Revised Code §] 2949.221, Judge Frost's Protective Order [ECF No. 629, reported at In re: Ohio Execution Protocol Litigation, 2015 U.S. Dist. LEXIS 144926 (S.D. Ohio Oct. 26, 2015)], and overwhelm and bog down the Defendants with oral and written discovery that is unduly burdensome, overbroad, and unnecessary . . . ." (ECF Nos. 706 at PageID 21402; 707 at PageID 21420.) Defendantsexpressly say they "will not provide discovery that would contravene [Ohio Revised Code] §§ 2949.221 and 2949.222. Nor will they provide discovery that has been the subject of any Protective Order previously issued by this Court." (ECF No. 706 at PageID 21402.) They also assert that "much of the information sought is protected by the attorney-client and/or common interest and/or common defense privilege and/or by the attorney work product doctrine." Id.

In the Order Vacating Stay, the Court noted the importance of the pending appeal:

Judge Frost expressly found that his Order of October 26, 2015 (the "Protective Order"), "involve[d] a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." (ECF No. 629, PageID 19411, quoting 28 U.S.C. § 1292(b).) Based on that finding, he certified the Protective Order for interlocutory appeal and "STAY[ED] this Opinion and Order and all further proceedings before this Court pursuant to § 1292(b) .... " Id.

Requested to accept jurisdiction under 28 U.S .C. § 1292(b), the Sixth Circuit concluded that

[T]he pendency of the appeal in Phillips v. DeWine, No. 15-3238, coupled with the seriousness of the issues at stake, constitute exceptional circumstances that justify a departure from the final judgment rule. The district court's ruling involves controlling questions of law on which there is substantial ground for difference of opinion. Because resolving these questions will materially advance the ultimate termination of this litigation, furthermore, judicial and party economy will be served by this appeal.

In re: Ohio Execution Protocol Litigation; Angelo Fears, et al., Case No. 15-0305 (6^th Cir. Feb. 22, 2016)(unreported, copy at ECF No. 643, PageID 19571-72).

(Order Partially Vacating Stay, ECF No. 658, PageID 19733-34.) Thus in October, this Court adopted the earlier conclusion of Judge Frost and the Sixth Circuit that a decision in Fears v.Kasich was important to govern the discovery conducted before the preliminary injunction hearing set for January 3-5, 2017.

That conclusion has not wavered. Hoping to avoid the present situation, the Court urged the parties to consult and attempt to agree on a stay of execution pendente lite to allow careful consideration of the preliminary injunction motions in light of whatever discovery would be permitted after considering the circuit court's decision in Fears v. Kasich. In email correspondence prior to the status conference on November 28, 2016, Assistant Attorney General Madden reported to the Court that his "clients are not willing to consider a stay in any form, but provided - have provided us with the authority to examine what the potential contours of a proposed unilateral issuance of a gubernatorial reprieve would entail." (Transcript, ECF No. 763, PageID 23585-86.) Such a reprieve could only be for a slight delay and would only be considered if plaintiffs were "willing...