In Re: Ohio Execution Protocol Litigation

Opinion

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

Chief Judge Edmund A. Sargus, Jr. : Magistrate Judge Michael R. Merz

This document relates to: Plaintiffs Cleveland Jackson :

DECISION AND ORDER UPHOLDING PRIVILEGE OBJECTION

During the course of the deposition of Plaintiff Cleveland Jackson, Defendants’ counsel asked a question about Plaintiff’s knowledge of the drugs involved in the current execution protocol (01-COM-11, rev. 10/07/2016). Plaintiff’s counsel objected on the basis of attorney- client communication privilege and instructed the witness not to answer. During colloquy on the objection, Defendants’ counsel claimed the privilege had been waived by Cleveland Jackson’s Affidavit of February 5, 2019, filed in Franklin County Common Pleas Case No. 18-cv-758. Defendants’ counsel furnished the Court with a copy of the Affidavit which is attached. Defendants rely on In re Grand Jury Proceedings [for] October 12, 1995, 78 F.3d 251 (6th Cir. 1996)1, for the proposition that revelation by a client of part of an attorney-client communication waives the privilege for the subject matter of that conversation. In her opinion Judge Kennedy distinguishes between a narrow and broad definition of the scope of the waiver.

1 During the conference call, the Magistrate Judge incorrectly stated that he regularly relied on this case in conclusing privilege was waived in Having reviewed Plaintiff Jackson’s affidavit as the Sixth Circuit reviewed the testimony of the government investigators in that case, the Court concludes Jackson did not waive the privilege as to any matters related to the instant litigation. The privilege objection is SUSTAINED.

August 28, 2019. s/ Michael R. Merz United States Magistrate Judge isin VUUTLY UIHO Gieim oF VVUILS UF Ue Gurntinon Pitas: 2uig Pew v0 oio4 rive YUUUToD JE524 - u37

IN THE COURT OF COMMON PLEAS FOR FRANKLIN COUNTY, OHEO é CIVIL DIVISION JAMES DERRICK O’NEAL, et.al. : Plaintiffs Case No. 18CV-758 Vs. : JUDGE Mark A. Serrot THE STATE OF OHIO, et al. : Defendants rere reer Affidavit of Cleveland Jackson In the County of Ross, In the State of Ohio ss: Cleveland Jackson, after being duly sworn according to law states as follows: I. Tam one of the parties in this case. 2. I dropped out of school in the tenth grade. I did not get a GED. 3. In February 2007, the federal court appointed Attorneys John Gibbons and Jim Jenkins to be my attorneys in my federal case. 4. Since Attorney Jenkins became my attorney in 2007, he only met with me once. 5. Since Attorney Gibbons became my attorney in 2007, as best I can remember, he visited me only four or five times. He has not visited with me since death row got moved to Chillicothe,

Deposition of Cleveland Jackson Exhibit 2

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E524 ~ TUNNE CoMmny Uiny wens UF Couns Ure Commur reas: eure Uo FINE FOLYUUUToo 6. I have not heard anything from either attorney in apout the last Xb davce Years, 7. Attorney Gibbons did not ask me if 1 wanted to be in the lethal injection law case in federal court. He did not tell mel was in the case. He never told me anything about this case. 8. I did not know anything about the lethal injection case until 2018, Attorney Porter said that he needed me to sign some papers so Attorney Gibbons could get some records about me. Attorney Porter said that he was doing this for Attorney Gibbons, 9. I never heard from Attorney Gibbons if he got the records or what he did with the records. 10. Until last year I did not really know what the lethal injection law suit was all about. I believed that it had something to do with them putting the needle in your arm when you got to Lucasville Further affiant sayeth naught. Clap 7 we eel Cleveland Jackson _ } The foregoing affidavit was sworn to befare me and signed in presence I this the St day of February, 2019. : / Notary Public, State Ohio □□ ete BY CORUASION 15 NON-ERDRIND