In Re Ohio Execution Protocol Litigation

845 F.3d 231 (6th Cir. 2016)


Ps filed lawsuits to challenge Ohio's protocols for lethal injunction. Ohio enacted legislation to address confidentiality of information about lethal injection in Ohio. The 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. Ds moved for a protective order to prevent the release of any information that could identify the sources of Ohio's lethal-injection drugs. The district court certified the order for interlocutory appeal. Ps then 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. Ps appealed. Ps argue that the protective order is contrary to law because the order cuts off all discovery on Ohio's execution procedures, including previously produced discovery. Ps argue that Ds failed to make particular and specific demonstrations of harm under Rule 26(c). Ps claim that Ds are now immunized from litigation by the court relying on generalized, objective harm suffered from the risk of threats, intimidation, and harassment. Ps contends these are insufficient to justify a protective order. Ps posit that Ds have not alleged Ohio's inability to carry out executions as a basis for the protective order. Ps claim that Ds failed to produce or point to any credible, specific evidence in the record to demonstrate an inability to obtain lethal-injection drugs or to carry out executions in the absence of a protective order. Ps claim the harm caused by cutting off discovery outweighs the harms attributed to Ds. Ps also point out that the protective order federalizes a state privilege, which has no foothold under federal law. In the alternative, Ps request a designation of 'attorney's eyes only.'