In Re: Ohio Execution Protocol Litigation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

IN RE: OHIO EXECUTION : Case No. 2:11-cv-1016

PROTOCOL LITIGATION

District Judge Edmund A. Sargus, Jr.

: Magistrate Judge Michael R. Merz

This document relates to:

Plaintiffs Cleveland Jackson,

James Hanna, and Melvin Bonnell :

DECISION AND ORDER REGARDING CONTINUED ANONYMITY

OF DRC EMPLOYEE #1

This consolidated method of execution case is before the Court on Plaintiffs’ Motion to

Admit Deposition Testimony of DRC Employee No. 1 (ECF No. 2506). Defendants’ oppose the

Motion (ECF No. 2530).

Previously Defendants moved for a protective order to require the redaction of the name of

DRC Employee No. 1 from the transcript of his deposition (ECF No. 2430).1 Plaintiffs opposed

the Motion (ECF No. 2468), but the Court granted it on the basis that the deposition had, at that

point, only been filed on court order as an exception to Fed.R.Civ.P. 5(d)(1)(A) as a discovery

management matter (ECF No. 2481). The instant Motion seeks to have the deposition of DRC

Employee No. 1 used as part of the evidence supporting the motions for preliminary injunction.

Having read the transcript of the deposition, the Court finds it contains much testimony

relevant to the issues before the Court, including, inter alia, a description of the process for

1 The same motion sought redaction of the name of Warden Ron Erdos, but that request was later withdrawn by

Defendants.

obtaining and transporting execution drugs to Southern Ohio Correctional Facility in Lucasville,

Ohio (“SOCF” or “Lucasville”), where executions are carried out, investigation of sources for

secobarbital (a drug formerly used in Medical Assistance in Dying in Oregon and proposed as

part of an alternative method of execution by Plaintiff Warren Henness (Henness Motion for

Preliminary Injunction, ECF No. 1929), and the fact that all execution drugs enumerated in 01-

COM-11 in the possession of the Ohio Department of Rehabilitation and Corrections (“DRC” or

“ODRC”) on the date of the deposition were past their expiration dates. Since DRC Employee

No. 1 is a party-Defendant in this case, his deposition is usable by Plaintiffs for supporting their

motions for preliminary injunction. Fed.R.Civ.P. 32(a)(3). Accordingly, the Motion of Plaintiff

to Admit the Deposition Testimony is GRANTED.

In granting sealing of the deposition while it was still only a discovery document, the Court

cautioned Defendants as follows:

This Order should not be read, however, as accepting the State

Defendants’ argument that the State has protected confidentiality

interest in the identity of DRC Employee No. 1. Nor should it be

read as accepting the argument that DRC Employee No. 1 himself

or herself has such an interest which would be protected by a sealing

order if the deposition transcripts or other documents disclosing his

or her identity should come to be used as a basis for a court decision.

The Court notes that DRC Employee No. 1’s assertion of fear of

annoyance, etc., is purely conclusory; there is even less evidence

cited to substantiate that claim than was presented to Judge Frost in

justifying the prior protective order. Perhaps more importantly, the

Motion suggests that the State of Ohio asserts an interest in being

able to purchase execution drugs without disclosing to the seller the

intended use of the drugs. While Ohio plainly has constitutional

authority to execute by use of lethal drugs, no court (at least to the

knowledge of the undersigned) has held the State has the right to

purchase such drugs anonymously, much less a right that overcomes

the strong presumption of public access set forth in Shane Grp.[ Inc.,

v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir.

2016)]. Defendants are cautioned that any renewed motion seeking

protection of that sort will require much more justification than has

been given to date.

(Decision and Order on Defendants’ Motion for Protective Order, ECF No. 2481, PageID 127429-

30).

DRC Employee No. 1 was deposed in this case on August 21, 2019. The transcript of his

deposition is filed at ECF No. 2457-2 and Plaintiffs seek to admit the entirety of it. Id. at PageID

120449-64.2 At the outset of the deposition, when DRC Employee No. 1 was asked his name,

Defendants’ co-counsel Katherine Mullin objected: “So we’re going to object to any identifying

information as to him as to previous orders.. . . So that would be ECF 629 and ECF 838.” (ECF

No. 2457-2, PageID 120449).3

Defendants assert DRC Employee No. 1’s name is protected by protective orders entered

by this Court at ECF Nos. 629, 838, and 1052. During the preliminary injunction hearing on

September 24, 2019, they also asserted it was protected by the provisions of Ohio Revised Code

§§ 2949.221 and .222 (Transcript pending). The Court considers these in chronological order.

Protection Under Ohio’s Execution Drugs Secrecy Bill

Ohio Revised Code § 2949.221, which codifies H.B. 663, effective March 23, 2015,

provides:

2 Because the transcript has been prepared in minuscript format (four pages of transcript to one 8.5x11 sheet), only

sixteen pages of that size paper comprise sixty-three pages of transcript. The Court notes that the copy at ECF No.

2457-2 is neither signed by the deponent nor certified by the court reporter. Because the court reporter furnished the

transcript for review on August 26, 2019, DRC Employee No. 1’s time to correct has expired. Fed.R.Civ.P. 30(e)(1).

3 At two later places in the deposition Ms. Mullin again objected, once to inquiry into deliberative process (ECF No.

2457-2, PageID 120453) and once to an inquiry where she apparently expected the answer to reveal information

protected by the attorney-client communication privilege, work product protection, or the deliberative process

privilege. Id. at PageID 120460. In neither of those instances did Plaintiffs’ counsel, Adam Rusnak, pursue the

inquiry. Thus the sole objection made at the deposition was to DRC Employee No. 1 stating his name.

Confidentiality of Information Concerning Lethal Injections

(A) As used in this section:

(1) “Person” has the same meaning as in section 1.59 of the

Revised Code.

(2) “Licensing authority” means an entity, board,

department, commission, association, or agency that issues

a license to a person or entity.

(3) “Public office” has the same meaning as in section

117.01 of the Revised Code.

(B) If, at any time prior to the day that is twenty-four months after

the effective date of this section, a person manufactures,

compounds, imports, transports, distributes, supplies, prescribes,

prepares, administers, uses, or tests any of the compounding

equipment or components, the active pharmaceutical ingredients,

the drugs or combination of drugs, the medical supplies, or the

medical equipment used in the application of a lethal injection of a

drug or combination of drugs in the administration of a death

sentence by lethal injection as provided for in division (A) of section

2949.22 of the Revised Code, notwithstanding any provision of law

to the contrary, all of the following apply regarding any information

or record in the possession of any public office that identifies or

reasonably leads to the identification of the person and the person's

participation in any activity described in this division:

(1) The information or record shall be classified as

confidential, is privileged under law, and is not subject to

disclosure by any person, state agency, governmental

entity, board, or commission or any political subdivision as

a public record under section 149.43 of the Revised Code

or otherwise.

(2) The information or record shall not be subject to

disclosure by or during any judicial proceeding, inquiry, or

process, except as described in division (B)(4) of this

section or in section 2949.222 of the Revised Code.

(3) The information or record shall not be subject to

discovery, subpoena, or any other means of legal

compulsion for disclosure to any person or entity, except

as described in division (B)(4) of this section or in section

2949.222 of the Revised Code.

(4)

(a) If the information or record pertains to the

manufacture, compounding, importing,

transportation, distribution, or supplying of any of

the items or materials described in division (B) of

this section, the person or entity that maintains the

information or record shall disclose the information

or record to the Ohio ethics commission and the

commission may use the information or record,

subject to division (B)(1) of this section, only to

confirm the following:

(i) That the relationship between the person

and the department of rehabilitation and

correction is consistent with and complies with

the ethics laws of this state;

(ii) That at the time of the specified conduct,

the person has all licenses required under the

laws of this state to engage in that conduct and

the licenses are valid.

(b) If the Ohio ethics commission receives any

information or record pursuant to division (B)(4)(a)

of this section, the commission shall complete its use

of the information or record for the purposes

described in that division within fourteen days of its

receipt and shall promptly report its findings to the

director of rehabilitation and correction.

(C)

(1) If, at any time prior to the day that is twenty-four

months after the effective date of this section, an employee

or former employee of the department of rehabilitation and

correction or any other individual selected or designated by

the director of the department participates or participated

in the administration of a sentence of death by lethal

injection, as provided for in division (A) of section 2949.22

of the Revised Code, subject to division (C)(2) of this

section and notwithstanding any other provision of law to

the contrary, the protections and limitations specified in

divisions (B)(1), (2), and (3) of this section shall apply

regarding any information or record in the possession of

any public office that identifies or reasonably leads to the

identification of the employee, former employee, or other

individual and the employee's, former employee's, or

individual's participation in the administration of the

sentence of death by lethal injection described in this

division.

(2) Division (C)(1) of this section does not apply with

respect to information or a record that identifies or

reasonably leads to the identification of the director of

rehabilitation and correction or the warden of the state

correctional institution in which the administration of the

sentence of death takes place.

(D) The protections and limitations specified in divisions (B)(1), (2),

and (3) of this section regarding information and records that

identify or may reasonably lead to the identification of a person

described in divisions (B) or (C) of this section and the person's

participation in any activity described in the particular division are

rights that shall be recognized as follows:

(1) With respect to a person that is an individual, without

any requirement for the person to take any action or

specifically apply for recognition of such rights.

(2) With respect to a person that is not an individual, the

rights do not exist unless the person requests to have the

rights recognized by applying in writing to the director of

rehabilitation and correction.

The director of rehabilitation and correction by rule shall

establish the procedure according to which a person who is

not an individual may apply in writing for the rights

described in divisions (B)(1), (2), and (3) of this section.

The director shall approve an application that is submitted

in compliance with the rules. A person whose application

is approved is entitled to the rights for twenty years after

the person ceases the qualifying activity as contemplated

by the first paragraph of division (B) of this section. The

director shall notify any person, who is not an individual

and who is entitled to the rights, of the application

procedures.

(E) If a person or entity that, at any time prior to the day that is

twenty-four months after the effective date of this section,

participates in, consults regarding, performs any function with

respect to, including any activity described in division (B) of this

section, or provides any expert opinion testimony regarding an

execution by lethal injection conducted in accordance with division

(A) of section 2949.22 of the Revised Code is licensed by a licensing

authority, notwithstanding any provision of law to the contrary, the

licensing authority shall not do any of the following as a result of

that participation, consultation, performance, activity, or testimony

by the person or entity:

(1) Challenge, reprimand, suspend, or revoke the person's

or entity's license;

(2) Take any disciplinary action against the person or entity

or the person's or entity’s licensure.

(F) A person may not, without the approval of the director of

rehabilitation and correction, knowingly disclose the identity

and participation in an activity described in the particular

division of any person to whom division (B) of this section applies

and that is made confidential, privileged, and not subject to

disclosure under that division or of an employee, former employee,

or other individual to whom division (C)(1) of this section applies

and that is made confidential, privileged, and not subject to

disclosure under that division. Any person, employee, former

employee, or individual whose identity and participation in a

specified activity is disclosed in violation of this division has a civil

cause of action against any person who discloses the identity and

participation in the activity in violation of this division. In a civil

action brought under this division, the plaintiff is entitled to recover

from the defendant actual damages, punitive or exemplary damages

upon a showing of a willful violation of this division, and reasonable

attorney's fees and court costs.

(G) If division (B), (C), or (D) of this section applies to a person

with respect to any conduct or activity of the person occurring at a

time prior to the day that is twenty-four months after the effective

date of this section, the expiration of that twenty-four month period

does not affect, add to, or diminish the protections and limitations

specified in division (B) or (C), division (D), and division (E) of this

section with respect to their application to that person.

(Emphasis added.) At the time H.B. 663 was adopted, the principal concern was the expected

desire for anonymity of manufacturers or other suppliers or potential suppliers of execution drugs

to the State. (See Sealed Transcript of Motion for Protective Order Proceedings before the

Honorable Gregory L. Frost, ECF No. 548).4 There was at that time no discussion of protecting

the identity of DRC Employee No. 1 or of anyone in his or her position.

Nevertheless, the text of the statute covers DRC Employee No. 1 because he is “a person

[who] . . . transports, distributes, supplies, prescribes, [or] prepares, . . . any of the . . . drugs or

combination of drugs, . . . used in the application of a lethal injection of a drug or combination of

drugs in the administration of a death sentence by lethal injection. . . .” Ohio Revised Code §

2949.221(B). The identity of such a person is not to be publicly disclosed “without the approval

of the director of rehabilitation and correction.” Ohio Revised Code § 2949.221(F).

The identity of DRC Employee No. 1 was publicly disclosed on July 24, 2019, in

Defendants’ Identification of Hearing Witnesses and Precis of Expected Lay Witness Testimony

for the September 24, 2019, hearing, in which they represented:

[Actual name of DRC Employee No. 1] will testify briefly as to his

education and training as a pharmacist and his role as responsible

pharmacist for SOCF. He will testify regarding ODRC procedures

for procurement, licensing, handling, transfer, transportation,

delivery, storage and maintenance of drugs used in executions. He

will testify about his professional knowledge and experience

regarding the general practice of pharmacy or pharmacy care,

including dispensing, mixing, and compounding drugs, and the

relevant state licensing requirements to do so. [Actual name of DRC

Employee No. 1] will testify regarding Plaintiff Jackson’s alleged

alternative methods of execution involving oral administration of

drugs and the availability, feasibility and ODRC’s ability to

implement each of those alternatives. Specifically, he will testify

about his understanding of the proposed alternative methods,

specifically the proposed process for the dispensing, preparation,

mixing and/or administration of the proposed execution drugs. He

will also testify about the feasibility of the ORDC to obtain the drugs

needed for execution, whether the current 3-drug protocol or other

alternatives, and the availability of, and process for obtaining, such

drugs for ODRC. He may also testify about matters contained in the

4 Upon motion by former Plaintiff Ronald Phillips (ECF No. 631), the transcript of those proceedings was unsealed

on December 17, 2015 (Order, ECF No. 639).

State Defendants’ responses to any of Plaintiff’s discovery if

permitted in this case, and any additional relevant matters on which

he may have knowledge.

(ECF No. 2293, PageID 111801-02.). During the September 24, 2019, hearing Defendants’ co-

counsel Katherine Mullin confirmed that filing of the witness list was done with the approval of

Defendant Annette Chambers-Smith (Transcript pending). Thus, any interest of either the State

Defendants collectively or of DRC Employee No. 1 personally in maintaining his identity in

confidence that was protected by Ohio Revised Code § 2949.221 was waived no later than the

filing of Defendants’ Witness List.5

Protection Under Prior Protective Orders in this Case.

Defendants also rely on the protective order issued by Judge Frost (ECF No. 629).

Although he discussed H.B. 663, Judge Frost did not rely on it in granting relief, but instead relied

on Fed.R.Civ.P. 26(c). He noted that to justify a protective order under that rule, “one of Rule

26(c)(1)’s enumerated harms ‘must be illustrated with a particular and specific demonstration of

fact, as distinguished from stereotyped and conclusory statements.’” (ECF No. 629, 2015 WL

6446093, at *1 (S.D. Ohio Oct. 26, 2015) (Frost,J.), quoting Serrano v. Cintas Corp., 699 F.3d

884, 901 (6th Cir. 2012); Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004)

(additional internal quotation marks omitted), aff’d, Fears v. Kasich, 845 F.3d 231 (6th Cir. 2016).

The focus of the inquiry that produced the protective order was the supposed necessity for

anonymity of possible compounding pharmacies; nothing was said by any witness about the need

5 The Court pretermits any discussion of other places in the record (now at almost 130,000 pages) where the name of

DRC Employee No. 1 may have been publicly disclosed so as to effect a waiver under Ohio Revised Code § 2949.221,

as the waiver by filing the Witness List is sufficient.

to protect the anonymity of any person in the position of DRC Employee No. 1. Nevertheless,

Judge Frost ordered 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.

Id. at *9. That language, which mirrors the language in H.B. 663, is broad enough to cover DRC

Employee No. 1, although no evidence was offered at the hearing to show that he was threatened

with any harm specified in Fed.R.Civ.P. 26(c). Without such a showing, the protective order is

not properly applied to him, as Judge Frost held in the opinion supporting its issuance. That is to

say, although the language of the order is broad enough to apply to DRC Employee No. 1, he is

not entitled to its protection without making a satisfactory showing under Fed.R.Civ.P. 26(c),

which he has neither done nor attempted to do until his Declaration discussed below (ECF No.

2457-1).

After the undersigned assumed management of the case upon promulgation of the present

version of 01-COM-11, Defendants filed a new Motion for Protective Order (ECF No. 705). At

that time the State had acquired a sufficient quantity of the drugs the State intended to use to

execute former Plaintiffs Phillips, Otte, and Tibbetts, to wit, midazolam, rocuronium bromide6,

and potassium chloride. They asked the Court to read Judge Frost’s protective order as applying

6 Rocuronium bromide is one of three paralytic drugs authorized for use in the present version of 01-COM-11.

to these new drugs “because the same rationale exists for protecting them as existed for protecting

the identities of potential suppliers of thiopental sodium or pentobarbital, whether compounded or

manufactured, before the Protective Order was entered.” (Decision, ECF No. 838, PageID 24912),

reported at 2016 WL 7368187 (S.D. Ohio Dec. 20, 2016) (Merz, Mag. J.)). In those circumstances,

the Court decided several issues regarding privilege:

1. “Federal law, not state law, governs the recognition of any privilege to refuse to provide

discoverable information in this case.” Id.. at *2

2. Defendants were not entitled to the so-called state secrets privilege. Id.

3. The Court recognized as a matter of comity the confidentiality interests sought to be

protected by Ohio Revised Code § 2949.221 and also recognized a qualified privilege for that

information, “defeasible by the needs, if any, of Plaintiffs in this case to obtain necessary

discovery.” Id.

4. Although “Judge Frost’s Protective Order d[id] not by its terms apply to drugs” other than

pentobarbital and thiopental sodium, the Court extended the same protection to suppliers of the

drugs named in the new protocol. Id. at *3.

Nothing in that Decision referred to DRC Employee No. 1.

Finally, Defendants rely on the Decision and Order Granting in Part and Denying in Part

Defendants’ Motion for Partial Redaction of Depositions (ECF No. 1052, May 24, 2017). The

Court found that the depositions in question were all discovery depositions filed only for discovery

management purposes under the November 2016 Scheduling Order referenced above. The Court

found that Defendants had waived any confidentiality interest they might have had in “what they

themselves have revealed to the public” and noted that, inter alia, Defendants had cited pages from

the deposition of DRC Employee No. 1 in their Merit Brief on appeal of this Court’s order granting

preliminary injunctive relief to Phillips, Otte, and Tibbetts. Id. at PageID 40667, citing Fears v.

Morgan Appellant Brief, 6th Cir. Case No. 17-3076, ECF No. 28, PageID 49-51. Nothing in the

referenced Decision and Order (ECF No. 1052) supports continuing to provide anonymity to DRC

Employee No. 1.

In sum, none of the Court’s prior protective orders supports maintaining the anonymity of

DRC Employee No. 1.

Request During Preliminary Injunction Hearing

During the preliminary injunction hearing on September 24, 2019, Plaintiffs made three

arguments as to why the transcripts of the deposition of DRC Employee No. 1 should be a matter

of public record without preserving his anonymity. The first was that his “role is well-known, and

therefore, any interests he had in any confidentiality was [sic] waived long ago,” e.g. by not

objecting when his December 2016 deposition was taken (Transcript pending). The second

argument was that Judge Frost’s Protective Order (ECF No. 629) did not apply at all to DRC

Employee No. 1. The third was that H.B. 663 did not protect DRC Employee No. 1 any longer if

it ever did (Transcript pending).

Defendants responded by relying on the Declaration of DRC Employee No. 1 filed in

support of their most recent Motion for Protective Order (ECF No. 2457-1). In the Declaration,

DRC Employee No. 1 expresses a “sincere belief that I would be exposed to risks of actual harm

or threats of personal harm to my safety and well-being.” Id. at PageID 120447, ¶ 4. This statement

is conclusory; DRC Employee No. 1 gives no supporting facts of any actual threats to himself or

anyone else in a comparable position in other States. Since DRC Employee No. 1 has testified

publicly, in open court, in this case and the transcripts of those proceedings are part of the public

record, one would expect that, if someone were assiduously seeking his identity in order to make

threats, they would have done so by now.

Thus, the factual support for Defendants’ position is thinner even than it was in 2015 when

Judge Frost issued his Protective Order. In the hearing that preceded that order, the Court heard

testimony about an actual threatening email to a drug provider and expert testimony on threat

assessment. Nothing of that sort has been offered here. Moreover, Judge Frost’s order was made

under Fed.R.Civ.P. 26(c) with regard to discovery requests, and was not a request to seal records

on which the Court relied in making a decision.

DRC Employee No. 1 additionally avers

6. In addition, if my name is publicly disclosed as described above,

it will be exceedingly difficult and probably impossible for me to

lawfully obtain drugs for DRC to use in executions because potential

drug sources have publicly stated--and informed DRC- that they will

not sell drugs to DRC for use in executions. If drug suppliers know

of my identity and my activities in acquiring drugs for DRC to use

in executions, they will not sell drugs to DRC. Such disclosure will

make drugs unavailable to the State for executions and burden

Defendants' important interests in carrying out criminal judgments.

Id. at PageID 120447-48.

Defendants admit this is the real reason they seek anonymity for DRC Employee No. 1. In

their Reply Memorandum in Support of Motion for Protective order, they state:

The Court need look no further than United States Supreme Court

precedent to understand why a protective order is necessary. Writing

for the Court in Glossip v. Gross, 135 S.Ct. 2726, Justice Alito

summarized why states have not been able to secure certain drugs to

be used in court-ordered executions:

Baze [v. Reese (sic), 553 U.S. 35 (2008)] cleared any legal

obstacle to use of the most common three-drug protocol

that had enabled States to carry out the death penalty in a

quick and painless fashion. But 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. The sole American

manufacturer of sodium thiopental, the first drug used in

the standard three drug protocol, was persuaded to cease

production of the drug. After suspending domestic

production in 2009, the company planned to resume

production in Italy. Koppel, Execution Drug Halt Raises

Ire of Doctors, Wall Street Journal, Jan. 25, 2011, p. A6.

Activists then pressured both the company and the Italian

Government to stop the sale of sodium thiopental for use

in lethal injections in this country. Bonner, Letter from

Europe: Drug Company in Cross Hairs of Death Penalty

Opponents, N. Y. Times, Mar. 30, 2011; Koppel, Drug Halt

Hinders Executions in the U.S., Wall Street Journal, Jan.

22, 2011, p. A1. That effort proved successful, and in

January 2011, the company announced that it would exit

the sodium thiopental market entirely. See Hospira, Press

Release, Hospira Statement Regarding PentothalTM

(sodium thiopental) Market Exit (Jan. 21, 2011).

After other efforts to procure sodium thiopental proved

unsuccessful, States sought an alternative, and they

eventually replaced sodium thiopental with pentobarbital,

another barbiturate. In December 2010, Oklahoma became

the first State to execute an inmate using pentobarbital. See

Reuters, Chicago Tribune, New Drug Mix Used in

Oklahoma Execution, Dec. 17 2010, p. 41. That execution

occurred without incident, and States gradually shifted to

pentobarbital as their supplies of sodium thiopental ran out.

It is reported that pentobarbital was used in all of the 43

executions carried out in 2012. The Death Penalty Institute,

Execution List 2012, online at

www.deathpenaltyinfo.org/execution-list-2012 (all

Internet materials as visited June 26, 2015, and available in

Clerk of Court’s case file). Petitioners concede that

pentobarbital, like sodium thiopental, can “reliably induce

and maintain a comalike state that renders a person

insensate to pain” caused by administration of the second

and third drugs in the protocol. Brief for Petitioners 2. And

courts across the country have held that the use of

pentobarbital in executions does not violate the Eighth

Amendment. See, e.g., Jackson v. Danberg, 656 F. 3d 157

(CA3 2011); Beaty v. Brewer, 649 F. 3d 1071 (CA9 2011);

DeYoung v. Owens, 646 F. 3d 1319 (CA11 2011); Pavatt

v. Jones, 627 F. 3d 1336 (CA10 2010).

Before long, however, pentobarbital also became

unavailable. Anti-death-penalty advocates lobbied the

Danish manufacturer of the drug to stop selling it for

use in executions. See Bonner, supra. That

manufacturer opposed the death penalty and took steps

to block the shipment of pentobarbital for use in

executions in the United States. Stein, New Obstacle to

Death Penalty in U.S., Washington Post, July 3, 2011, p.

A4. Oklahoma eventually became unable to acquire the

drug through any means. Glossip at 2733-2734.

(Emphasis Added).

(ECF No. 2457, PageID 120438-39 (emphasis in original).

This is an oft-repeated tale. Although it is based almost entirely on hearsay, the Court does

not doubt its accuracy. Anti-death-penalty advocates have largely been successful in eliminating

the use of sodium thiopental and pentobarbital in American executions7. But the narrative does

not suggest any unlawful behavior – “pressure” -- by these advocates. More importantly, it does

not suggest any unlawful behavior by the pharmaceutical companies in ceasing to supply execution

drugs. Producers of the controlled substances used in executions are not public utilities, bound to

sell to any willing buyer.8

A free market posits voluntary exchanges between willing buyers and willing sellers.

When buyers and sellers have different amounts of information about the proposed transaction,

7 But not in Texas, which executed Robert Sparks using pentobarbital on September 25, 2019 (Associated Press, Texas

executes man for stabbing attack that killed two stepsons and wife, CBS NEWS,

https://www.cbsnews.com/news/texas-execution-robert-sparks-fatally-stabbing-stepsons-lethal-injection-today-

2019-09-25/ (Sept. 25, 2019). In doing so, anti-death-penalty advocates have substantially increased the risk that their

clients, when executed, will suffer considerably more in being executed because sodium thiopental and pentobarbital

produce general anesthesia and midazolam does not.

8 Contrast the situation of an electric utility who attempted to refuse to provide electricity to a state prison where

executions were carried out by electrocution.

economists refer to the situation as information asymmetry.9 A key aspect of informational

asymmetry can be lack of knowledge of the identity of the buyer. For example, the law does not

permit sale of alcohol or tobacco to an underage person and punishes criminally those who do so.

To prevent the transaction, the law permits sellers of these goods to “card” potential buyers.

Obviously the sale of execution drugs to the State of Ohio is not an unlawful transaction, but it

would be an unfree transaction if a seller had announced its intention not to have its products used

for executions and then were deceived in a sale to the State because the drugs were being bought

by an anonymous agent.

The frustration of the Defendants is understandable. They are under lawful orders to

execute persons on death row; the federal courts have repeatedly held that capital punishment is

constitutional. Furthermore, the federal courts have repeatedly held that lethal injection is not per

se an unconstitutional method of execution and have also upheld use of particular drugs to

accomplish that end only to have approved drugs become unavailable. But it is not the duty of the

federal courts to assist in the obtaining of those drugs by deception, by allowing a state agent to

attempt to acquire those drugs by remaining anonymous.

The Court also is not under any duty to interfere with efforts of the State to acquire

execution drugs. No Plaintiff in this case has asked for a court order to require DRC Employee

No. 1 to identify himself to potential suppliers. The Court is, however, under a duty to respect and

enforce the presumptive right of public access to court proceedings. Press-Enterprise Co. v.

Superior Court of California, Riverside Cnty., 478 U.S. 1 (1966) (Press-Enterprise I); Detroit Free

Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). The public right of access is both constitutional,

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and a traditional common law right.

9 See “The Market for Lemons: Quality Uncertainty and the Market Mechanism” by George Akerlof (1970) for which

Akerlof was awarded the Nobel in Economics in 2001.

Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597-98 (1978). That right of access to judicial

records extends to all material filed in connection with non-discovery pretrial motions, whether

dispositive or not, but not to discovery motions and supporting documents. Leucadia, Inc. v.

Applied Extrusion Tech., Inc., 998 F.2d 157 (3rd Cir. 1993). The difference between sealing

discovery materials and judicial records was recently detailed by the Sixth Circuit:

By way of background, there is a stark difference between so-called

“protective orders” entered pursuant to the discovery provisions of

Federal Rule of Civil Procedure 26, on the one hand, and orders to

seal court records, on the other. Discovery concerns the parties’

exchange of information that might or might not be relevant to their

case. “Secrecy is fine at the discovery stage, before the material

enters the judicial record.” Baxter Int'l, Inc. v. Abbott Labs., 297

F.3d 544, 545 (7th Cir. 2002). Thus, a district court may enter a

protective order limiting the use or disclosure of discovery materials

upon a mere showing of “good cause[.]” Fed. R. Civ. P. 26(c)(1).

These orders are often blanket in nature, and allow the parties to

determine in the first instance whether particular materials fall

within the order's protection. The district court entered several such

orders here.

“At the adjudication stage, however, very different considerations

apply.” Joy v. North, 692 F.2d 880, 893 (2nd Cir. 1982). The line

between these two stages, discovery and adjudicative, is crossed

when the parties place material in the court record. Baxter, 297 F.3d

at 545. Unlike information merely exchanged between the parties,

“[t]he public has a strong interest in obtaining the information

contained in the court record.” Brown & Williamson Tobacco Corp.

v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983). That interest rests on

several grounds. Sometimes, the public's interest is focused

primarily upon the litigation's result—whether a right does or does

not exist, or a statute is or is not constitutional. In other cases—

including “antitrust” cases, Id. at 1179—the public's interest is

focused not only on the result, but also on the conduct giving rise to

the case. In those cases, "secrecy insulates the participants, masking

impropriety, obscuring incompetence, and concealing corruption."

Id. And in any of these cases, the public is entitled to assess for itself

the merits of judicial decisions. Thus, “[t]he public has an interest in

ascertaining what evidence and records the District Court and this

Court have relied upon in reaching our decisions.” Id. at 1181; see

also, e.g., Baxter, 297 F.3d at 546.

The courts have long recognized, therefore, a “strong presumption

in favor of openness” as to court records. Brown & Williamson, 710

F.2d at 1179. The burden of overcoming that presumption is borne

by the party that seeks to seal them. In re Cendant Corp., 260 F.3d

183, 194 (3d Cir. 2001). The burden is a heavy one: “Only the most

compelling reasons can justify non-disclosure of judicial records.”

In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir.

1983). Moreover, the greater the public interest in the litigation’s

subject matter, the greater the showing necessary to overcome the

presumption of access. See Brown & Williamson, 710 F.2d at 1179.

For example, in class actions—where by definition “some members

of the public are also parties to the [case]”—the standards for

denying public access to the record “should be applied . . . with

particular strictness.” Cendant, 260 F.3d at 194. And even where a

party can show a compelling reason why certain documents or

portions thereof should be sealed, the seal itself must be narrowly

tailored to serve that reason. See, e.g., Press-Enter. Co. v. Superior

Court of California, Riverside Cnty., 464 U.S. 501, 509-11, 104 S.

Ct. 819, 78 L. Ed. 2d 629 (1984). The proponent of sealing therefore

must “analyze in detail, document by document, the propriety of

secrecy, providing reasons and legal citations.” Baxter, 297 F.3d at

548.

In like fashion, a district court that chooses to seal court records must

set forth specific findings and conclusions “which justify

nondisclosure to the public.” Brown & Williamson, 710 F.2d at

1176. That is true even if neither party objects to the motion to seal,

as apparently neither did in Brown & Williamson. (There, our court

“reach[ed] the question” of the district court’s seal “on our own

motion.” Id.) As our decision there illustrates, a court's obligation to

explain the basis for sealing court records is independent of whether

anyone objects to it. And a court's failure to set forth those reasons—

as to why the interests in support of nondisclosure are compelling,

why the interests supporting access are less so, and why the seal

itself is no broader than necessary—is itself grounds to vacate an

order to seal. Id.; see also United States v. Kravetz, 706 F.3d 47, 60

(1st Cir. 2013) (“Appellate courts have on several occasions

emphasized that upon entering orders which inhibit the flow of

information between courts and the public, district courts should

articulate on the record their reasons for doing so”); SEC v. Van

Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993) (reversing because

“[w]e find no evidence in the record that the district court balanced

the competing interests prior to sealing the final order”).

We review the court's orders to seal its records for an abuse of

discretion—although, “[i]n light of the important rights involved,

the district court's decision is not accorded” the deference that

standard normally brings. Knoxville News-Sentinel, 723 F.2d at 476.

Shane Grp., Inc., v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305-06 (6th Cir. 2016)

(Kethledge, J.).

Defendants have not begun to make the showing required by Shane Group to seal the

deposition of DRC Employee No. 1. Moreover, his name appears 885 times in the record in this

case, the vast majority of times in public filings before any request for anonymity was made. He

testified publicly in the Henness preliminary injunction hearing (Transcript, ECF No. 2117,

PageID 104532 et seq.) and the intention to have him testify was disclosed without anonymity in

Defendants’ Witness List, ECF No. 1975, Page ID 88068). Thus, sealing the August 2019

deposition would be a vain act insofar as protecting his anonymity.

Defendants appeal to the practice of this Court of maintaining the anonymity of Defendant

Execution Team Members. Since assuming management of the case in October 2016, the

undersigned has followed the practices begun by Judge Frost to protect their anonymity, e.g. by

permitting them to proceed pseudonymously and allowing them to testify from behind a screen

during preliminary injunction hearings. Plaintiffs have never objected to this practice.

Accordingly, as ordered on the record on September 24, 2019, the request to maintain the

anonymity of DRC Employees No. 1 is DENIED.

Recognizing that an asserted privilege is involved and that this may give rise to a right to

appeal10, the Court asked Defendants’ counsel if they intended to appeal. They in turn requested

forty-eight hours from the filing of this decision to decide that question. Accordingly, if

10 To the United States Court of Appeals for the Sixth Circuit in the Cleveland Jackson matter because the reference

there is under 28 U.S.C. § 636(c); to District Judge Sargus as to Plaintiffs Hanna and Bonnell, because the reference

as to them is under 28 U.S.C. § 636(b).

Defendants desire to appeal, they shall file a motion to stay this order pending appeal not later than

Tuesday, October 1, 2019.

September 27, 2019.

s/ Michael R. Merz

United States Magistrate Judge