Stephen Michael West v. Derrick D. Schofield

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

December 18, 2014 Session

STEPHEN MICHAEL WEST, et al. v. DERRICK D. SCHOFIELD, et al.

Appeal by Permission from the Court of Appeals, Middle Section

Chancery Court for Davidson County

No. 13-1627-I Claudia C. Bonnyman, Chancellor

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No. M2014-00320-SC-R11-CV - Filed March 10, 2015

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We granted the State of Tennessee permission to appeal from the Court of Appeals’ decision

on interlocutory appeal in which the intermediate appellate court affirmed the trial court’s

order compelling discovery in this declaratory judgment action. The Plaintiffs are seeking

a declaration that the lethal injection protocol in place for the execution of convicted criminal

defendants sentenced to death is unconstitutional. In conjunction with pursuing their claim,

the Plaintiffs sought to discover the identity of persons involved in facilitating and carrying

out executions. Over the State’s objection, the trial court ordered the State to provide these

identities to the Plaintiffs, and the Court of Appeals affirmed the trial court’s order. Upon

due consideration, we reverse and remand this matter for further proceedings consistent with

this Opinion and in compliance with the timelines set forth in the judgment order filed

contemporaneously with this Opinion.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Court of Appeals Reversed;

Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK and

H OLLY K IRBY, JJ., joined. S HARON G. L EE, C.J., concurred in results only. G ARY R. W ADE,

J., filed a separate opinion concurring in the judgment only.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Jennifer L. Smith, Deputy Attorney General, for the appellants, Derrick D.

Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, John Doe Physicians

1-100, John Doe Pharmacists 1-100, John Doe Medical Examiners 1-100, John Doe Medical

Personnel 1-100, and John Doe Executioners 1-100.

Stephen M. Kissinger and Susanne Bales, Assistant Federal Community Defenders,

Knoxville, Tennessee, for the appellees, Stephen Michael West, Nicholas Todd Sutton, and

David Earl Miller.

Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Michael J. Passino,

Assistant Federal Public Defender, Nashville, Tennessee, for the intervening appellees, Abu-

Ali Abdur’Rahman, Donald R. Johnson, Donald Wayne Strouth, Charles Walton Wright, and

Edmund George Zagorski.

C. Gene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellee, Billy

Ray Irick.

Kelly A. Gleason and Jonathan King, Assistant Post-Conviction Defenders, Nashville,

Tennessee, for the intervening appellee, Lee Hall, Jr.

OPINION

Factual and Procedural Background

On September 27, 2013, the Tennessee Department of Correction adopted a new lethal

injection protocol providing that inmates sentenced to death be executed by the injection of

a lethal dose of a single drug, pentobarbital (“the Protocol”). On November 20, 2013,

Stephen Michael West, Billy Ray Irick, Nicholas Todd Sutton, and David Earl Miller

(“Plaintiffs”), all of whom have been sentenced to the death penalty for committing first

degree murder, filed a declaratory judgment action in the Chancery Court for Davidson

County, Tennessee, against: Derrick D. Schofield in his official capacity as Tennessee’s

Commissioner of Correction; Wayne Carpenter, in his official capacity as Warden of

Riverbend Maximum Security Institution; Tony Mays, in his official capacity as Deputy

Warden of Riverbend Maximum Security Institution; Jason Woodall, in his official capacity

as Deputy Commissioner of Operations; Tony Parker, in his official capacity as Assistant

Commissioner of Prisons; John Doe Physicians 1-100; John Doe Pharmacists 1-100; John

Doe Medical Examiners 1-100; John Doe Medical Personnel 1-100; and John Doe

Executioners 1-100 (“Defendants”). Also on November 20, 2013, Edmund Zagorski, Abu-

Ali Abdur’Rahman, Charles Wright, and Don Johnson, all condemned inmates, moved to

intervene as plaintiffs, and their motion was granted. These intervening plaintiffs filed a

complaint for declaratory judgment on November 20, 2013, which they asserted “raises

identical issues presented by the original complaint.” On November 21, 2013, Lee Hall, a

condemned inmate, moved to intervene as plaintiff, and his motion was granted. Hall filed

a complaint for declaratory judgment on November 21, 2013, which he asserted “raises

identical issues presented by the original complaint.” On January 2, 2014, Donald Strouth,

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a condemned inmate, moved to intervene as plaintiff, and his motion was granted. Strouth

filed a complaint for declaratory judgment on January 2, 2014, which he asserted “raises

identical issues presented by the original complaint.”

The Plaintiffs filed an amended complaint on November 25, 2013 (“the Complaint”).1

The Plaintiffs are seeking declarations that the Protocol violates the Eighth and Fourteenth

Amendments to the United States Constitution and article I, section 16 of the Tennessee

Constitution. The Eighth Amendment to the United States Constitution and article I, section

16 of the Tennessee Constitution prohibit the infliction of cruel and unusual punishment.

Because capital punishment is constitutional, “[i]t necessarily follows that there must be a

means of carrying it out.” Baze v. Rees, 553 U.S. 35, 47 (2008). “[T]he Constitution does

not demand the avoidance of all risk of pain in carrying out executions.” Id. Instead, to

establish an Eighth Amendment violation, “the conditions presenting the risk must be ‘sure

or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently

imminent dangers.’” Id. at 50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993))

(emphases in Baze). “[T]o prevail on such a claim there must be a ‘substantial risk of serious

harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading

that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)).2

Specifically, the Plaintiffs allege that the Protocol: (1) “creates a substantial risk of

unnecessary pain when carried out exactly in the manner prescribed”; (2) “will require the

use of compounded pentobarbital”; (3) “fails to provide adequate qualifications and training

1

Twenty-six additional death row inmates subsequently have been permitted to intervene.

2

We note that, in an order filed on November 29, 2010, in a prior lawsuit by Plaintiff West

challenging the State’s previous three-drug lethal injection protocol, we explicitly stated as follows:

In any proceedings on remand, the standards enunciated in the plurality opinion in

Baze v. Rees, 553 U.S. 35, 51 (2008)[,] apply. The burden is on Mr. West to prove that the

revised protocol creates an “objectively intolerable risk of harm that qualifies as cruel and

unusual.” Baze v. Rees, 553 U.S. at [50]. In order to carry this heavy burden, he must

demonstrate that the revised protocol imposes a substantial risk of serious harm, and he must

either propose an alternative method of execution that is feasible, readily implemented, and

which significantly reduces the substantial risk of severe pain, Baze v. Rees, 553 U.S. at 52-

53, or demonstrate that no lethal injection protocol can significantly reduce the substantial

risk of severe pain.

State v. Stephen Michael West, No. M1987-000130-SC-DPE-DD, at 3 (Tenn. Nov. 29, 2010) (“the West

Order”); see also Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266 (11th Cir. 2014); Mann v.

Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013).

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of personnel to minimize the known risks involved in execution by lethal injection”; (4)

“fails to require and include, and fails to comport with, those accepted medical practices

necessary to minimize the known risks involved in execution by lethal injection”; and (5)

“violates federal and state drug laws and the United States and Tennessee Constitutions.”

The Complaint also alleges that “Tennessee’s secrecy statute, Tennessee Code Annotated

[section] 10-7-504(h)(1), violates Plaintiffs’ federal and state constitutional rights and 42

U.S.C. § 1983.”

In their prayer for relief, the Plaintiffs also seek declarations that “any attempt by

Defendants to carry out Plaintiffs’ executions, and/or the carrying out of such executions,

using the Lethal Injection Protocol will violate 42 U.S.C. § 1983”; that the Protocol is “on

its face and as applied to Plaintiffs null and void and/or unconstitutional” under the federal

and state constitutions; that the Protocol “causes, requires or constitutes violations of”

various state and federal statutes; that the Protocol “is void as contrary to public policy”; and

that the Protocol “is void as constituting an unlawful civil conspiracy.”

On November 26, 2013, the Plaintiffs served their First Set of Interrogatories on the

named Defendants and the State Attorney General’s Office in which the Plaintiffs asked the

Defendants to identify each John Doe Defendant3 and, if such Defendant was not employed

by the State, to “identify the business address where service of the summons may be had.”

During a scheduling conference on December 2, 2013, the Defendants indicated a possible

objection to the interrogatories but agreed that a protective order regarding the identities of

the John Doe Defendants should be entered “regardless of [the] interrogatory responses.”

In their December 4, 2013 written response to the interrogatories, the Defendants objected

to each of the Plaintiffs’ requests for the identities of the John Doe Defendants, asserting that

(1) the identities of the individuals described were neither relevant nor material to the

Plaintiffs’ ability to challenge the Protocol used in executing a sentence of death and (2) their

identities specifically were deemed confidential under Tennessee Code Annotated section

10-7-504(h), and, therefore, exempt from discovery under Tennessee Rule of Civil Procedure

26.02(1). The Defendants also asserted that the State’s interest in maintaining the

confidentiality of persons directly involved in the execution process outweighed the

Plaintiffs’ need for the discovery requested. Without conceding relevance, the Defendants

offered to identify each “John Doe” by position and title and to provide a description of each

3

The record before us includes no request by the Plaintiffs for this information pursuant to the Public

Records Act, Tenn. Code Ann. §§ 10-7-101 to -702 (2012), and the instant lawsuit is not a petition for

enforcement of the Public Records Act, see id. § 10-7-505(a).

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person’s education, training, and employment, without disclosing personal, identifying

information.4

On that same day, the Defendants moved the trial court to adopt an Agreed Protective

Order, which provided: “The parties shall not reveal the identities of the ‘John Doe’

defendants except to the extent essential to conduct the proceedings at issue in this case.”

The order further stated: “The [D]efendants do not waive any protection, privilege or

defense afforded by Tenn. Code Ann. § 10-7-504(h) by agreement to this protective order.”

The order also provided that it was intended to provide a mechanism for the handling of

confidential information, but “[i]t shall not be deemed to be a waiver by any of the parties

of any objections as to admissibility, relevancy, materiality, or discoverability, or a waiver

of any right or protection otherwise afforded by the TENNESSEE RULES OF CIVIL

PROCEDURE relating to discovery or the TENNESSEE RULES OF EVIDENCE or

otherwise afforded by state law.” The trial court entered the protective order on December

5, 2013.

On December 13, 2013, the Plaintiffs filed a Motion to Compel Responses to

Plaintiffs’ First Set of Interrogatories seeking the John Doe Defendants’ identities. After

hearing argument, the trial court granted the Plaintiffs’ motion to compel discovery and

ordered the Defendants to provide:

[T]he identity and location of all John Doe defendants who had been scheduled

to participate, and/or had already participated in, the execution of Plaintiff

Billy Ray Irick that had been formerly . . . set for January 7, 2014, and/or all

persons who, as of that date, had agreed, or tentatively agreed, whether

formally or informally, to act in the capacity of those John Doe defendants

described in Plaintiffs’ First Set of Interrogatories.

In conjunction with issuing its order, the trial court stated the following during the hearing

on the Plaintiffs’ motion to compel:

The Public Records Act and the matters that the state legislature has decided

are sensitive are relevant to discovery because the Public Records Act and the

confidentiality provision that is found in that act and other statutes alert the

Court that the Court should consider a deviation from a very strongly-held

value, which is that every piece of paper that’s filed in the courts [is] public

4

In their written response to the Plaintiffs’ subsequent motion to compel, the Defendants also offered

to produce John Doe Defendants for screened depositions.

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record and that the courts of all the branches of government [are] transparent

so that people can see whether justice is being done.

And so that’s a very high value. However, where information is

sensitive, I usually find that the lawyers cooperate in protecting the discovery.

There’s been some cooperation here. The State obviously has concluded, I

think reasonably, that it should come forward and protect the identities of its

clients out of respect for their privacy and respect for the pressure under which

they may be functioning.

All that having been said, Rule 26 does state that the identity and

location of persons having knowledge of any discoverable matter is relevant

to the civil lawsuits that are filed in the courts of the state of Tennessee.

And so I’m finding that because there is a protective order and because

all of the lawyers are officers of the court, I am going to grant the motion to

compel, respectfully, because the persons whose identit[ies] [are] being sought

are parties in this case. There’s no motion to dismiss filed. And I understand

why there hasn’t been a motion to dismiss. I’m certainly not critical about

that. Answer has been filed on their behalf.

To the extent that the State – of course – now that I have granted the

motion to compel, I understand the State’s position that well, we don’t know

who is going to be involved in the executions in 2014. However, I think if I

find and direct the State to provide any lists of persons currently existing who

the State would contract with or choose or address in order to follow through

with the protocol that was scheduled for January. I mean, it seems like you’re

going to have that. If you don’t have that, then I think the State has to provide

the list of – either tell the [Plaintiffs] who is going to be involved and who was

going to be involved in the January execution scheduled. Mr. Irick, I think,

was scheduled to be executed in January, this month.

I think there is a way to address the unknown. There are a lot of things

we don’t know about what’s going to happen in 2014. But I think the State’s

attorneys have to make inquiry as the rules of discovery provide, make inquiry

and do the best they can to provide whatever identities you do have.

After the trial court granted the Plaintiffs’ motion to compel, the State sought and

obtained permission to pursue an interlocutory appeal. The Court of Appeals subsequently

affirmed the trial court’s order. See Stephen Michael West v. Derrick D. Schofield, No.

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M2014-00320-COA-R9-CV, 2014 WL 4815957, at *1 (Tenn. Ct. App. Sept. 29, 2014). The

State then sought this Court’s permission to appeal from the judgment of the Court of

Appeals, and we have granted that permission. For the reasons set forth below, we reverse

the judgment of the Court of Appeals and the trial court’s order granting the Plaintiffs’

motion to compel and remand this matter for further proceedings consistent with this

Opinion.

Analysis

Standard of Review

The applicable standard of review for pretrial discovery decisions is abuse of

discretion. Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). An abuse of discretion

occurs when the trial court applies incorrect legal standards, reaches an illogical conclusion,

bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning

that causes an injustice to the complaining party. State v. Banks, 271 S.W.3d 90, 116 (Tenn.

2008).

Tennessee Rule of Civil Procedure 26.02(1)

We begin our analysis with the text of Tennessee Rule of Civil Procedure 26.02(1):

Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action, whether it relates

to the claim or defense of the party seeking discovery or to the claim or

defense of any other party, including . . . the identity and location of persons

having knowledge of any discoverable matter. It is not ground for objection

that the information sought will be inadmissible at the trial if the information

sought appears reasonably calculated to lead to the discovery of admissible

evidence.

Tenn. R. Civ. P. 26.02(1) (emphases added). Thus, before a trial court may order matters

divulged under this Rule, it must make a threshold determination that the matters sought are

(1) not privileged and (2) relevant to the subject matter of the lawsuit.

In this case, the trial court, by granting the Plaintiffs’ motion to compel, clearly

concluded that the identities of the John Doe Defendants were not privileged. Furthermore,

it concluded that their identities were relevant under Rule 26.02, stating that “the identity and

location of persons having knowledge of any discoverable matter is relevant” and that “the

persons whose identit[ies] [are] being sought are parties in this case.” On appeal, the Court

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of Appeals concluded that Tennessee Code Annotated section 10-7-504(h) did not constitute

a privilege protecting the identities of the John Doe Defendants. Stephen Michael West,

2014 WL 4815957, at *10. The Court of Appeals also found “no common-law privilege

applicable.” Id. at *11 n.4. The Court of Appeals further concluded that the identities of the

John Doe Defendants were relevant because they were admissible or reasonably would lead

to admissible evidence. Id. at *5. We will begin our discussion with the first threshold issue

of privilege.

Privilege

The State urges us to adopt a common-law privilege protecting the identities of those

individuals involved in the execution of condemned inmates from disclosure applicable in

civil discovery. The State grounds its argument in large part on the public policy against the

disclosure of the identities of these persons made explicit by our legislature in the Public

Records Act, specifically Tennessee Code Annotated section 10-7-504(h). This

confidentiality provision provides as follows:

Notwithstanding any other law to the contrary, those parts of the record

identifying an individual or entity as a person or entity who or that has been or

may in the future be directly involved in the process of executing a sentence

of death shall be treated as confidential and shall not be open to public

inspection.

Tenn. Code Ann. § 10-7-504(h)(1) (Supp. 2014).

The Plaintiffs have not sought the identities of the John Doe Defendants pursuant to

a request under the Public Records Act. Nevertheless, the State argues that the General

Assembly’s clear intent to protect the confidentiality of these persons should influence our

decision regarding whether their identities are entitled to protection under a common-law

privilege. See, e.g., KD ex rel. Dieffenbach v. United States, 715 F. Supp. 2d 587, 592-97

(D. Del. 2010) (adopting common-law privilege regarding peer review documents based, in

part, on congressional legislative history of the Patient Safety Quality Improvement Act of

2005); Francis v. United States, No. 09 Civ. 4004(GBD)(KNF), 2011 WL 2224509, at *6

(S.D.N.Y. May 31, 2011) (same).

We think it worthy of note that the legislative history of the confidentiality provision

includes the following comments by the sponsor of the legislation, Senator Mark Norris:

This deals with an additional exemption to the public records act as it

relates to, of all things, executions in Tennessee. . . . The rationale behind the

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execution exemption, if we can call it that, is that involvement in carrying out

a death sentence in accordance with a valid court order and in accordance with

state law shouldn’t subject any person to retaliation by those who may disagree

with that law, particularly on this very volatile and sometimes divisive issue.

There was a Court of Appeals decision two years ago, the Ray case,

which interpreted our current statute more narrowly than we think is

appropriate. In fact, so narrowly as only applying to persons that it has

become difficult for the Department of Correction sometimes to obtain the

materials that are needed because those who would provide the materials are

afraid that they will be subject to some kind of exposure or liability.

What this bill does is to clarify that persons and entities, persons or

entities, have the same protections under the . . . exemptions from public

disclosure.

Hearing on S.B. 154, Before the State and Local Government Comm., 108th Gen. Assembly

(Apr. 2, 2013) (statement of Sen. Mark Norris).

In the case referenced by Senator Norris, the Court of Appeals considered a lawsuit

filed under the Public Records Act seeking the identities of the suppliers “of the substances

necessary to carry out lethal injection executions and the employees who procured those

substances.” Paul Bottei v. Gayle E. Ray, No. M2011-00087-COA-R3-CV, 2011 WL

4342652, at *1 (Tenn. Ct. App. Sept. 15, 2011). The Public Records Act in effect at the

relevant time provided, in pertinent part, as follows:

Notwithstanding any other law to the contrary, those parts of the record

identifying an individual as a person who has been or may in the future be

directly involved in the process of executing a sentence of death shall be

treated as confidential and shall not be open to public inspection. For the

purposes of this section “person” includes, but is not limited to, an employee

of the state who has training related to direct involvement in the process of

executing a sentence of death, a contractor or employee of a contractor, or a

volunteer who has direct involvement in the process of executing a sentence

of death. Records made confidential by this section include, but are not

limited to, records related to remuneration to a person in connection with such

person’s participation in or preparation for the execution of a sentence of

death.

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Tenn. Code Ann. § 10-7-504(h)(1) (Supp. 2010). The Court of Appeals framed the issue as

“whether the identities of persons or entities who supplied the lethal injection chemicals and

the state employees who procured the chemicals are to be kept confidential.” Paul Bottei,

2011 WL 4342652, at *3. The Court of Appeals concluded that subsection 504(h)(1) “only

protects the identities of those persons who are ‘directly involved’ in the execution, not the

identities of those who supplied the lethal injection chemicals to the state or the identities of

the state employees who procured the chemicals.” Id. Thus, the Court of Appeals agreed

with the trial court that the contested identities were not exempted from disclosure under the

Public Records Act. As a result, the contested identities were to be provided to the plaintiff.

Id. at *1.

Senator Norris’ comments clearly indicate that the legislature disagreed with the Court

of Appeals’ construction of subsection 504(h)(1) and that the legislature intended through

its amendment to the statute to protect the identities of all persons and entities participating

in the execution of a convicted murderer sentenced to death. See In re Baby, 447 S.W.3d

807, 823 (Tenn. 2014) (referring to legislative history in order to determine Tennessee’s

public policy concerning traditional surrogacy contracts); see also Bunarith Tep v. Southcoast

Hosp. Grp., Inc., No. 13-11887-LTS, 2014 WL 6873137, at *5 (D. Mass. Dec. 4, 2014)

(recognizing other federal courts’ reliance on congressional legislative history as indicative

of public policy favoring “broad protection for peer review work product in an effort to

improve patient safety and quality of care”); Rosengarten v. Downes, 802 A.2d 170, 179-82

(Conn. App. Ct. 2002) (relying on legislative history to determine that Connecticut’s public

policy was contrary to plaintiff’s claim that trial court had subject matter jurisdiction to

dissolve plaintiff’s foreign same-sex civil union).

Our legislature’s concern with protecting the identities of those involved with

executions also finds support in prior cases before Tennessee courts. Ricky Bell, a former

warden of the Tennessee prison in which death row inmates are housed, has stated in an

affidavit that the “identity of the execution team is kept confidential for the security of the

institution and for the safety of the staff members and their families.” Philip Workman v.

Donal Campbell, No. M2001-01445-COA-R3-CV, 2002 WL 869963, at *6 (Tenn. Ct. App.

May 7, 2002). The former warden explained, “[m]embers of the execution team and their

families may be subject to retaliation and harassment if their identities became known

throughout the institution or to the public at large.” Id.

Indeed, when the United States District Court for the Middle District of Tennessee

heard evidence from members of the execution team in an Eighth Amendment claim against

a different lethal injection protocol, their testimony was provided from behind a screen to

protect their anonymity. See Harbison v. Little, 511 F.Supp. 2d 872, 886 n.11 (M.D. Tenn.

2007), vacated on other grounds by Harbison v. Little, 571 F.3d 531, 539 (6th Cir. 2009).

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In further recognition of the need to protect the anonymity of those involved in the execution

process, the trial court in Harbison noted in its opinion that the witnesses “will not be

identified by name in this opinion pursuant to provisions in state law that protect their

identities.” Id.

Statutory and case law from other jurisdictions also have addressed the necessity of

protecting the identities of those involved in carrying out a death sentence. For instance, the

Georgia legislature has enacted a statute classifying all “identifying information” about “any

person or entity who participates in or administers the execution of a death sentence . . . [or]

that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or

medical equipment” used in an execution as a “confidential state secret” that is not subject

to disclosure. Ga. Code Ann. § 42-5-36(d) (effective July 1, 2013).

Subsequently, a condemned inmate sought sealed discovery of the identities of the

compounding pharmacy, the supply chain, and the manufacturers of any and all ingredients

used in the lethal drug compounded to execute him. See Owens v. Hill, 758 S.E.2d 794, 797

(Ga. 2014), cert. denied __ U.S. __, 135 S. Ct. 449 (Nov. 3, 2014). Rejecting the inmate’s

attempt “to turn the First Amendment into an Open Records Act for information relating to

executions,” id. at 805, the Georgia Supreme Court held that disclosure was not warranted.

Id. The Georgia court emphasized that the reasons supporting nondisclosure of the identities

of those involved in the execution of a death row inmate “are obvious, including avoiding

the risk of harassment or some other form of retaliation from persons related to the prisoners

or from others in the community who might disapprove of the execution as well as simply

offering those willing to participate whatever comfort or peace of mind that anonymity might

offer.” Id. The court continued:

Although the identity of the executioner who actually inflicts death upon the

prisoner is the most obvious party in need of such protection, we believe that

the same logic applies to the persons and entities involved in making the

preparations for the actual execution, including those involved in procuring the

execution drugs.

[Moreover], without the confidentiality offered to execution participants

by the statute, . . . there is a significant risk that persons and entities necessary

to the execution would become unwilling to participate.

Id.; see also Bryan v. State, 753 So.2d 1244, 1250-51 (Fla. 2000) (upholding statutes

exempting execution-team identities from public disclosure in order to protect prison security

and personal safety); cf. In re Lombardi, 741 F.3d 888, 894 (8th Cir. 2014) (en banc)

(referring to an October 2013 letter “from a compounding pharmacy . . . that demanded the

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Texas Department of Criminal Justice return a supply of compounded pentobarbital sold for

use in executions, because of a ‘firestorm,’ including ‘constant inquiries from the press, the

hate mail and messages,’ that resulted from publication of the pharmacy’s identity”), cert.

denied __ U.S. __, 134 S. Ct. 1790 (Apr. 7, 2014).

The United States Court of Appeals for the Eleventh Circuit also has rejected a

condemned inmate’s argument that the state’s refusal to provide him with information about

his execution denied him his First Amendment right of access to governmental proceedings.

See Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266-67 (11th Cir. 2014). In

affirming the district court’s denial of relief on this claim, the Eleventh Circuit concluded

that “[n]either the Fifth, Fourteenth, or First Amendments afford [the inmate] the broad right

‘to know where, how, and by whom the lethal injection drugs will be manufactured,’ [or] ‘the

qualifications of the person or persons who will manufacture the drugs, and who will place

the catheters.” Id. at 1267 (citing Lewis v. Casey, 518 U.S. 343, 354 (1996)), cert. denied

__ U.S. __, 134 S. Ct. 2838 (June 17, 2014); see also Sepulvado v. Jindal, 729 F.3d 413, 420

(5th Cir. 2013) (stating, “There is no violation of the Due Process Clause from the

uncertainty that Louisiana has imposed on Sepulvado by withholding the details of its

execution protocol”), cert. denied, __ U.S. __, 134 S. Ct. 1789 (Apr. 7, 2014); Williams v.

Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that prisoners’ argument – that Arkansas

Method of Execution Act violated due process because its secrecy denied them an

opportunity to litigate their claim that protocol violated the Eighth Amendment – failed to

state a plausible due process access to the courts claim), cert. dismissed, __ U.S. __, 133 S.

Ct. 97 (Sept. 20, 2012).

Additionally, in Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014), the inmate argued that

withholding information about the drugs used to execute him and the qualifications of the

medical personnel denied him his First Amendment right of access to governmental

proceedings. Although the Ninth Circuit determined that Wood was entitled to this

information “subject to the restriction that the information provided will not give the means

by which the specific individuals can be identified,” id. at 1088, the United States Supreme

Court reversed that decision and granted the State’s application to vacate the judgment. Ryan

v. Wood, __ U.S. __, 135 S. Ct. 21 (mem) (July 22, 2014).

These authorities make clear that, not only has our legislature declared the public

policy of Tennessee to favor the anonymity of those involved in carrying out capital

punishment, but there is neither a statutory nor a constitutional barrier to the adoption of a

common-law privilege that would prohibit the disclosure in civil litigation of the identities

of those persons involved in the execution of condemned inmates. Nevertheless, we

conclude that it is unnecessary to adopt such a privilege in this case because, as set forth

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below, we hold that the John Doe Defendants’ identities are not relevant to the subject matter

of this action.

Relevance

We now turn to the second threshold issue of relevance. As set forth above, matters

discoverable pursuant to Rule 26.02(1) must be “relevant to the subject matter involved in

the pending action.” Tenn. R. Civ. P. 26.02(1). “The phrase ‘relevant to the subject matter

involved in the pending action’ is synonymous with ‘germane’ or ‘bearing on the subject

matter.’” Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 359 (Tenn. Ct. App. 1985)

(citing Local 13, Detroit Newspaper Union v. N.L.R.B., 598 F.2d 267, 271 (D.C. Cir. 1979)),

superceded on other grounds by Tenn. R. Civ. P. 26.02(4)(B). Referring to the analogous

federal rule for guidance, this Court has recognized that “the subject matter of a case is not

limited to the merits of the case because ‘a variety of fact-oriented issues may arise during

litigation that are not related to the merits.’” Thomas v. Oldfield, 279 S.W.3d 259, 262

(Tenn. 2009) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).5 For

instance, “information concerning the existence and extent of liability insurance coverage

may be relevant to settlement negotiations or trial preparation.” Id. (citations omitted).

Nevertheless, the information sought by a plaintiff through discovery must have some logical

connection to proving his case and/or obtaining his prayed-for relief.

As to the determination of what information is relevant for the purposes of Rule 26,

it is helpful to examine the definition of relevance set forth in our Rules of Evidence:

“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Tenn. R. Evid. 401. But see Boyd v. Comdata Network,

Inc., 88 S.W.3d 203, 220 n.25 (Tenn. Ct. App. 2002) (noting that relevancy “is more loosely

construed during discovery than it is at trial”). Thus, the crucial issue in determining the

relevance of any particular information for the purposes of Rule 26, and therefore its

5

Our Court of Appeals has recognized that Federal Rule of Civil Procedure 26 was amended in 2000

and

now limits discovery without court approval to any non-privileged matter that is ‘relevant

to the claim or defense of any party.’ As a result of the 2000 amendment to Fed. R. Civ. P.

26(b)(1), discovery of matters relevant to the subject matter involved in the pending action

can only be obtained by court order upon the showing of good cause. Federal Practice and

Procedure § 2008, at 14-15 (Supp. 2001).

Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 219 n.24 (Tenn. Ct. App. 2002). That is, the federal rules

have been amended to narrow the scope of discovery that is available without prior judicial approval.

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discoverability, is whether it has (or will lead to information which has) some probative value

as to the subject matter involved in the pending action. Accordingly, before compelling

discovery under Rule 26, a trial court first must determine what is included in “the subject

matter involved in the pending action.” Tenn. R. Civ. P. 26.02(1). In this action for

declaratory judgment, the subject matter is whether the Protocol violates the Plaintiffs’

federal and state constitutional rights. The Plaintiffs have brought a facial challenge to the

Protocol as written. Any relevance of the John Doe Defendants’ identities must be analyzed

in that specific context.

As to the facial challenge, we hold that the John Doe Defendants’ identities are not

relevant to a determination of the constitutionality of the Protocol as written. The Protocol

must be assessed on its face against the constitutional challenges levied by the Plaintiffs. The

identities of the persons who may facilitate or carry out the Protocol are not relevant to a

determination of whether the Protocol passes constitutional muster.

In determining that the sought-after identities were relevant, the Court of Appeals

focused on the provision in Rule 26 that “‘the identit[ies] . . . of persons having knowledge

of any discoverable matter’ are expressly discoverable.” Stephen Michael West, 2014 WL

4815957, at *5 (quoting Tenn. R. Civ. P. 26.02(1)). However, this clause of Rule 26

explicitly refers to knowledge of any discoverable matter, emphasizing the prerequisite that

such persons’ knowledge must concern the subject matter of the lawsuit.

Moreover, the Court of Appeals concluded that the identities of the John Doe

Defendants were relevant because, without their identities, the Plaintiffs “would be unable

to independently verify [their qualifications to participate in executing a condemned inmate]

or subject [those qualifications] to meaningful scrutiny.” Stephen Michael West, 2014 WL

4815957, at *5. This conclusion indicates that the Court of Appeals was analyzing the

relevance of the John Doe Defendants’ identities in terms of their qualifications to apply the

Protocol. However, the subject matter involved in the pending action is the constitutionality

of the Protocol itself. In short, this declaratory judgment action involves a facial challenge

to the constitutional validity of the Protocol as written, not as applied.6

The trial court likewise failed to consider the crucial distinction between the

Plaintiffs’ facial challenge to the Protocol as written and any challenges the Plaintiffs may

be attempting to raise to the Protocol as it hypothetically may be applied on some uncertain

date in the future by currently unidentifiable persons. Consequently, both courts below erred

in concluding that the John Doe Defendants’ identities were relevant and discoverable under

Rule 26. Cf. Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 308 (Tenn. 2005) (rejecting

6

To the extent the Plaintiffs are attempting to raise claims about the Protocol as applied, see infra.

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inmate’s claim under the Administrative Procedures Act that the three-drug lethal injection

protocol violated the Eighth Amendment by causing unnecessary pain and suffering and

concluding, “[W]e cannot judge the lethal injection protocol based solely on speculation as

to problems or mistakes that might occur. We must instead examine the lethal injection

protocol as it exists today.”).

Other appellate courts, too, have concluded that the identities of those involved in

carrying out the death penalty are not relevant to lawsuits by condemned inmates seeking to

challenge their executions. For instance, in a case before the Eighth Circuit in which the

plaintiffs raised claims “[c]iting various constitutional, statutory, and regulatory provisions,”

the plaintiffs

challenge[d] the . . . authority [of the director of the Missouri Department of

Corrections] to use pharmacist-compounded pentobarbital in executions at all,

to carry out executions or modify the execution protocol during the pendency

of this litigation, to name any prescribing physician, pharmacist, or laboratory

to the execution team, and to shield the identities of execution team members

like the physician, pharmacist, and laboratory from the plaintiffs and the

public. They also complain[ed] that the execution team could use a central

venous line to insert a catheter when it is not clinically indicated (despite a

supervising official’s affidavit to the contrary), and that changes in the

execution protocol create uncertainty that enhance[d] anxiety for the prisoners.

Lombardi, 741 F.3d at 897. The Eighth Circuit held that, as to these claims, “the identities

of the prescribing physician, pharmacist, and laboratory are plainly not relevant” under

Federal Rule of Civil Procedure 26 because “the merits of these claims do not depend on the

identities of the physician, pharmacist, or laboratory.” Id. Accordingly, the federal Court

of Appeals granted the defendant’s requested writ of mandamus vacating the district court’s

orders requiring the disclosure of these identities. Id.7

Similarly, as noted above, the Georgia Supreme Court also has held that condemned

inmates are not entitled to the identities of those persons involved in the execution process.

See Hill, 758 S.E.2d at 805-06. Although Hill was in a different procedural posture than the

instant case because the trial court had granted an interlocutory injunction, which required,

7

But see In re LeBlanc, 559 Fed. Appx. 389, 391, 393 (5th Cir. 2014) (denying petition for writ of

mandamus seeking relief from district court’s order compelling Louisiana corrections officials to disclose

to death row inmate, pursuant to Federal Rule of Civil Procedure 26, “the identity of the [lethal injection]

drugs’ manufacturers and sources; the entities involved in supplying and testing those lethal chemicals; and

the healthcare professionals who will be personally and directly involved in the process of carrying out the

execution”) (limited precedential value pursuant to Fifth Circuit Local Rules).

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inter alia, that there was a substantial likelihood that the inmate would prevail on the merits

of his claim at trial, the Georgia Supreme Court correctly noted that “each of Hill’s

arguments ultimately centers on his claim that there is an unconstitutional risk that his

execution will amount to cruel and unusual punishment.” Id. at 801. Accordingly, the court

concluded that the inmate had “utterly failed to show with any specificity how learning the

identity of the specific compounding pharmacy involved in his case, even assuming that it

has had problems producing some medications in the past, would substantially improve his

factual showing in support of his underlying Eighth Amendment claim.” Id. at 802-03.

Stated otherwise, the identity of the compounding pharmacy was not relevant to the inmate’s

Eighth Amendment claim.

In this case, the trial court failed to conduct a relevance analysis based on the correct

legal standard. Accordingly, the trial court erred when it granted the Plaintiffs’ motion to

compel because the identities of the John Doe Defendants are not relevant to the subject

matter involved in the pending action. The Court of Appeals likewise utilized an incorrect

analysis in reviewing and affirming the trial court’s order compelling disclosure. We hold

that the Plaintiffs are not entitled to the disclosure of the John Doe Defendants’ identities

under Rule 26.02(1) because the John Doe Defendants’ identities are not relevant to a facial

challenge to the Protocol.

Balancing Test

Even if a trial court determines that information sought pursuant to Rule 26 is not

privileged and is relevant to the subject matter involved in the pending action, the trial court

further should balance the specific need for the information against the harm that could result

from disclosure of the information.

Weighing the propriety of a discovery request for sensitive information involves not

just determinations about privilege and relevance, but also the balancing of additional

considerations, including the “‘protection of privacy, property and secret matters,’” and the

“‘protection of parties or persons from annoyance, embarrassment, oppression, or undue

burden or expense.’” Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 605 (Tenn. Ct. App.

2004) (quoting Cyc. Fed. Proc. § 25.34 (3d ed. 2001)); accord Atlanta Journal-Constitution

v. Jewell, 555 S.E.2d 175, 180 (Ga. Ct. App. 2001) (“Under general discovery rules

applicable to all parties, not only must a trial court determine whether the requested discovery

is relevant and material, but when parties seek discovery of unprivileged but sensitive

materials, the trial court must balance the requesting party’s specific need for the material

against the harm that would result by its disclosure.”); J.L.M. v. R.L.C., Jr., 132 S.W.3d 279,

287 (Mo. Ct. App. 2004) (recognizing that “[i]n addition to considering issues of whether the

information sought in discovery is relevant or subject to privilege, the trial court should

-16-

consider the extent to which the information sought would invade the privacy of the

responding party or other individuals”).

The trial court failed to give adequate consideration to the State’s need to protect the

privacy of those involved in the execution of condemned inmates and its need to protect

those persons from annoyance, embarrassment, and/or oppression. By basing its ruling on

an erroneous assessment of the relevant factors, the trial court erred when it ordered the State

to disclose to the Plaintiffs the identities of the John Doe Defendants. See State v. Garrett,

331 S.W.3d 392, 401 (Tenn. 2011) (“This Court will also find an abuse of discretion when

the trial court has failed to consider the relevant factors provided by higher courts as

guidance for determining an issue.”). The Court of Appeals likewise failed to undertake this

crucial balancing of competing interests based on its erroneous conclusion that, “[w]ith

regard to discovery, a court engages in a balancing of the parties’ interests only after a

threshold determination that a privilege applies.” Stephen Michael West, 2014 WL 4815957,

at *11.

We must remain mindful that the United States Constitution and the Tennessee

Constitution both permit the execution of those convicted of first degree murder and

sentenced to capital punishment. See Baze, 553 U.S. at 47; State v. Henretta, 325 S.W.3d

112, 143 (Tenn. 2010). The State must have a means of carrying out these constitutional

sentences. Any constitutionally valid means of execution requires the participation of

numerous individuals (collectively, “the Participants”). Nevertheless, the execution of

condemned inmates remains a highly divisive and emotionally charged topic in Tennessee.

Revealing the identities of the Participants, even subject to a protective order, creates a risk

that the Participants would be deterred from performing their lawful duties.8

In sum, although we base our holding on principles of relevance, we also note that

neither of the courts below considered adequately the “protection of privacy, property, and

secret matters; and the protection of parties or persons from annoyance, embarrassment,

oppression, or undue burden or expense.” Johnson, 146 S.W.3d at 605.

8

We acknowledge that the trial court ordered that the John Doe Defendants’ identities be provided

subject to a protective order. Nevertheless, the sheer number of parties involved in this case – we note that

twenty-six more condemned inmates have intervened in this action – and the number of experts required to

consider the qualifications, etc., of the John Doe Defendants, create legitimate concerns that the John Doe

Defendants’ identities, even inadvertently, eventually will become public. Cf. Chester v. Wetzel, No. 1:08-

CV-1261, 2014 WL 6066146, at *4 (M.D. Penn. Nov. 13, 2014) (granting newspapers’ motion to intervene

to seek disclosure of sources of pharmacological agents to be used in execution after information was ordered

sealed).

-17-

Allegations of Unconstitutionality “As Applied”

In addition to challenging the constitutionality of the Protocol as written, the Plaintiffs

also have raised some allegations asserting that the Protocol may be unconstitutional as

applied in the future. For instance, Count II alleges that “there is a substantial risk that

Defendants will use pentobarbital from a source, i.e. Defendant Pharmacist(s), that

compounds A[ctive] P[harmaceutical] I[ngredient]s obtained from non-FDA-approved

facilities” and that “[t]he substantial risk that the compounded pentobarbital will not be the

concentration required under the Lethal Injection Protocol due to the use of A[ctive]

P[harmaceutical] I[ngredient]s obtained from non-FDA-approved facilities increases the

already substantial risk that the Plaintiffs will not receive an adequate dose of pentobarbital

. . . thereby inflicting unnecessary pain.” Count IV alleges that there “is a substantial risk

that persons performing the medical procedures incorporated into the Lethal Injection

Protocol will be impaired during Plaintiffs’ executions.” The Complaint also contains a

specific prayer for relief from the Protocol “as applied to Plaintiffs.”

The Complaint asserts that the chancery court “has jurisdiction pursuant to Tenn.

Code Ann. §§ 29-14-103, 29-14-113.” Both of these provisions are included in our

Declaratory Judgments Act, Tenn. Code Ann. §§ 29-14-101 to -113 (2000, Supp. 2011, &

2012). Tennessee Code Annotated section 29-14-103 provides as follows:

Any person interested under a deed, will, written contract, or other

writings constituting a contract, or whose rights, status, or other legal relations

are affected by a statute, municipal ordinance, contract, or franchise, may have

determined any question of construction or validity arising under the

instrument, statute, ordinance, contract, or franchise and obtain a declaration

of rights, status or other legal relations thereunder.

Tenn. Code Ann. § 29-14-103 (2012). Section 113 provides that “[t]his chapter is declared

to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with

respect to rights, status, and other legal relations; and is to be liberally construed and

administered.” Id. § 29-14-113 (2012).

With respect to the Declaratory Judgments Act, this Court has asserted:

The primary purpose of the Declaratory Judgment[s] Act is “to settle

and to afford relief from uncertainty and insecurity with respect to rights,

status, and other legal relations. . . .” Tenn. Code Ann. § 29-14-113. Although

the Act is “to be liberally construed and administered,” id., we have

acknowledged that “certain limitations must be placed upon the operation of

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the statute.” Johnson City v. Caplan, 194 Tenn. 496, 253 S.W.2d 725, 726

(1952). For example, a declaratory judgment action cannot be used by a court

to decide a theoretical question, Miller v. Miller, 149 Tenn. 463, 261 S.W.

965, 972 (1924), render an advisory opinion which may help a party in another

transaction, Hodges v. Hamblen County, 152 Tenn. 395, 277 S.W. 901, 902

(1925), or “allay fears as to what may occur in the future,” Super Flea Mkt.

[v. Olsen], 677 S.W.2d [449,] 451 [(Tenn. 1984)]. Thus, in order to maintain

an action for a declaratory judgment a justiciable controversy must exist. Jared

v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1, 4 (1946). For a controversy to be

justiciable, a real question rather than a theoretical one must be presented and

a legally protectable interest must be at stake. Cummings v. Beeler, 189 Tenn.

151, 223 S.W.2d 913, 915 (1949). If the controversy depends upon a future

or contingent event, or involves a theoretical or hypothetical state of facts, the

controversy is not justiciable. Story v. Walker, 218 Tenn. 605, 404 S.W.2d

803, 804 (1966). If the rule were otherwise, the “courts might well be

projected into the limitless field of advisory opinions.” Id.

State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (emphases

added); see also UT Med. Group, Inc. v. Vogt, 235 S.W.3d 110, 119 (Tenn. 2007) (“To be

justiciable, a case must involve presently existing rights, live issues that are within a court’s

jurisdiction, and parties who have a legally cognizable interest in the issues. A case is not

justiciable if it does not involve a genuine, existing controversy requiring the adjudication

of presently existing rights.”) (citing Brown & Williamson Tobacco Corp., 18 S.W.3d at 193;

State ex rel. Lewis v. State, 347 S.W.2d 47, 48-49 (Tenn. 1961)); S. Ry. Co. v. Dunn, 483

S.W.2d 101, 103-04 (Tenn. 1972); Mills v. Shelby Cnty Election Comm’n, 218 S.W.3d 33,

39-40 (Tenn. Ct. App. 2006) (affirming trial court’s dismissal of complaint for declaratory

judgment because plaintiff “present[ed] a theoretical question of what may happen in future

elections, which question does not rise to the level of a justiciable controversy”) (citing

Brown & Williamson Tobacco Corp., 18 S.W.3d at 193); Campbell v. Sundquist, 926

S.W.2d 250, 257 (Tenn. Ct. App. 1996) (“The existence of a justiciable controversy is also

a jurisdictional prerequisite to the maintenance of an action under the [Declaratory

Judgments] Act.”), abrogated on other grounds by Colonial Pipeline Co. v. Morgan, 263

S.W.3d 827, 853 (Tenn. 2008). Indeed, as our Court of Appeals recognized many years ago:

That to maintain an action for a declaratory judgment a justiciable controversy

must exist between persons with adverse interests is well settled. For a

controversy to be justiciable, a real question rather than a theoretical one must

be presented and a real legally protectable interest must be at stake on the part

of plaintiff. If the controversy depends upon a future or contingent event or

involves a theoretical or hypothetical state of facts, the controversy is not

-19-

justiciable under the Tennessee Declaratory Judgments Act. The Declaratory

Judgments Act does not give the courts jurisdiction to render advisory opinions

to assist the parties or to allay their fears as to what may occur in the future.

Parks v. Alexander, 608 S.W.2d 881, 891-92 (Tenn. Ct. App. 1980) (citations omitted).9

Preliminarily, we note that the Complaint contains no specific allegation as to how the

Protocol is unconstitutional as applied to any individual Plaintiff.10 Therefore, we question

whether the allegations of the Complaint actually are sufficient to constitute an as-applied

challenge to the Protocol. See Waters v. Farr, 291 S.W.3d 873, 923 (Tenn. 2009)

(recognizing that challenges to the constitutionality of statutes “as applied” “requires the

challenger to demonstrate that the statute operates unconstitutionally when applied to the

challenger’s particular circumstances”) (Koch, J., concurring in part, dissenting in part); see

also United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (“An as-applied attack,

in contrast [to a facial attack], does not contend that a law is unconstitutional as written but

that its application to a particular person under particular circumstances deprived that

person of a constitutional right.”) (emphasis added).11

We are mindful that public officials in Tennessee are presumed to discharge their

duties in good faith and in accordance with the law. See, e.g., Reeder v. Holt, 418 S.W.2d

249, 252 (Tenn. 1967); Mayes v. Bailey, 352 S.W.2d 220, 223 (Tenn. 1961) (“There is a

presumption of good faith ordinarily accorded to public officials and quasi public officials.”);

9

Clearly, the Plaintiffs’ facial challenge to the constitutional validity of the Protocol as written

presents a justiciable controversy.

10

Indeed, at oral argument, despite repeated questions, counsel for the Plaintiffs was unable to

identify any allegation in the Complaint as to any individual Plaintiff on an as-applied challenge.

11

For examples of claims recognized by the courts as “as-applied” challenges, see, e.g., Davis v.

State, 142 So. 3d 867, 871 (Fla. 2014) (inmate claimed that his medical condition of porphyria rendered the

lethal injection protocol unconstitutional as applied to him), cert. denied __ U.S. __, 135 S. Ct. 15 (Jul. 10,

2014); Henry v. State, 134 So. 3d 938, 946 (Fla. 2014) (inmate claimed that, due to his “specific medical

concerns,” including coronary artery disease and medication for high blood pressure, “the use of midazolam

as the first drug of the lethal injection process creates an unconstitutional risk of severe pain”), cert. denied

__ U.S. __, 134 S. Ct. 1536 (Mar. 20, 2014); Howell v. State, 133 So. 3d 511, 518 (Fla. 2014) (inmate

alleged that his history of bipolar disorder, brain damage, PTSD, and extreme anxiety “create[d] an increased

risk that he will suffer a paradoxical reaction to midazolam, meaning that midazolam will have the opposite

effect on him that it has on others and thus will not properly anesthetize him”), cert. denied __ U.S. __, 134

S. Ct. 1376 (Feb. 26, 2014); see also In re Ohio Execution Protocol Litigation, 994 F. Supp. 2d 906, 912

(S.D. Ohio 2014) (inmate sought a stay of execution on the basis that the lethal injection protocol would

cause his execution to violate the Eighth Amendment because he possessed “physical and medical

characteristics that increase his risk of obstructive sleep apnea”).

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Jackson v. Aldridge, 6 S.W.3d 501, 503 (Tenn. Ct. App. 1999) (recognizing the presumption

that “public officials perform their duties in the manner prescribed by law”); State ex rel.

Witcher v. Bilbrey, 878 S.W.2d 567, 576 (Tenn. Ct. App. 1994) (“Public officials . . . are

presumed to perform their duties in good faith and are also presumed to know and act in

accordance with the law.”) (internal citations omitted).

Even assuming, arguendo, that the Plaintiffs sufficiently have alleged that the

Protocol is somehow unconstitutional as applied to one or more of them, or that one or more

individuals may cause the Protocol to be carried out in an unconstitutional manner in the

future, these claims are hypothetical and speculative and do not constitute a justiciable

controversy under the Declaratory Judgments Act.12 Cf. Nat’l Endowment for the Arts v.

Finley, 524 U.S. 569, 583-84 (1998) (stating, in response to a claim that a statute was facially

unconstitutional because it could be used to engage in viewpoint discrimination, “we are

reluctant, in any event, to invalidate legislation on the basis of its hypothetical application

to situations not before the Court”) (internal quotation marks omitted). Accordingly, the

Plaintiffs are not entitled in this proceeding to the discovery of information as to claims that

are merely speculative and do not present a justiciable controversy.

Conclusion

For the reasons set forth above, we hold that the trial court committed reversible error

when it granted the Plaintiffs’ motion to compel and ordered the State to provide the

Plaintiffs with the identities of the John Doe Defendants. Accordingly, the trial court’s order

granting the Plaintiffs’ motion to compel and the Court of Appeals’ judgment affirming that

order are reversed. This matter is remanded to the trial court for further proceedings

consistent with this Opinion and in compliance with the timelines set forth in the judgment

order filed contemporaneously with this Opinion.

_____________________________

JEFFREY S. BIVINS, JUSTICE

12

Our holding in this interlocutory proceeding does not preclude appropriate as-applied challenges

to the Protocol that may arise in the future.

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