Richard Jordan v. Georgia Department of Corrections

947 F.3d 1322

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 10, 2020
• Docket: 17-12948
• Status: Published

Opinion

Case: 17-12948 Date Filed: 01/10/2020 Page: 1 of 45

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12948 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-02582-RWS

RICHARD JORDAN, RICKY CHASE,

Plaintiffs-Appellants,

versus

COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,

Defendant,

GEORGIA DEPARTMENT OF CORRECTIONS,

Movant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(January 10, 2020)

Before WILLIAM PRYOR, TJOFLAT, and JULIE CARNES, Circuit Judges. Case: 17-12948 Date Filed: 01/10/2020 Page: 2 of 45

ON PETITION FOR REHEARING

JULIE CARNES, Circuit Judge:

We vacate and reconsider our original opinion in this matter, reported at 908

F.3d 1259. We substitute in its place the following opinion.

Plaintiffs Richard Jordan and Ricky Chase, Mississippi death row inmates,

served the Georgia Department of Corrections (“GDC”) with a subpoena directing

the GDC to testify at a Rule 30(b)(6) deposition and to produce documents

concerning Georgia’s lethal injection protocol. Plaintiffs argued that the testimony

and documents were necessary to support their 42 U.S.C. § 1983 claims pending in

the Southern District of Mississippi challenging the legality of Mississippi’s lethal

injection protocol. The GDC filed a motion to quash in the Northern District of

Georgia, where compliance with the subpoena was required, arguing that

disclosure of this information was barred by the Georgia Lethal Injection Secrecy

Act. 1 Accepting the recommendation of a magistrate judge, the district court

1 In pertinent part, the subpoena demands that the GDC produce documents concerning: (1) the GDC’s attempt to secure or purchase pentobarbital for use in executions, (2) drug labels and package inserts for any drug purchased by the GDC for use in lethal injection executions, (3) the process by which the GDC decided to use a single lethal dose of barbiturate in its lethal injection protocol, including communications between any GDC officer and any other person or entity related to that process, (4) the GDC’s use of compounded pentobarbital in executions, including communications between the GDC and any other person or entity (including pharmaceutical companies, pharmacies, and other corrections departments) related to the compounding of pentobarbital, (5) any GDC employee trainings on conducting lethal injections, including the names and qualifications of the person who taught at the training, and (6) communications 2 Case: 17-12948 Date Filed: 01/10/2020 Page: 3 of 45

granted the motion to quash. Plaintiffs appeal, arguing that the district court did

not apply the correct standard of review to the magistrate judge’s ruling, and that

the motion to quash should have been denied on the merits. After careful review,

we affirm.

PROCEDURAL BACKGROUND

This appeal is an offshoot of a § 1983 action filed by Plaintiffs in the

Southern District of Mississippi. Plaintiffs are Mississippi death row inmates who

challenge the constitutionality of Mississippi’s lethal injection protocol.

Mississippi’s protocol recently was changed from a single injection procedure

using only sodium pentothal or pentobarbital to a three-drug procedure that

requires the serial injection of: (1) either compounded pentobarbital or midazolam

(a sedative/anesthetic), (2) vecuronium bromide (a paralytic), and (3) potassium

chloride (which stops the heart). According to Plaintiffs, there is a substantial risk

that neither compounded pentobarbital nor midazolam—the first drug in the

series—will sufficiently anesthetize the condemned inmate. Consequently,

Plaintiffs claim, an inmate who is injected with either drug could remain conscious

between the GDC and any other corrections department or attorney general’s office related to the selection, purchase, or exchange of drugs for use in lethal injections. Responding to any of these demands would require disclosure of the identity of people and entities that manufacture or supply drugs used in Georgia executions, and that otherwise participate in Georgia executions, in violation of the Lethal Injection Secrecy Act.

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and fully sensate and thus experience suffocation when the second drug in the

series—the paralytic vecuronium bromide, which renders the inmate unable to

breathe—is administered. Making matters worse, Plaintiffs contend, vecuronium

bromide prevents all muscular movement and thus masks the pain that potassium

chloride—the third and final drug in the series—is known to inflict in the absence

of adequate anesthesia. Plaintiffs also argue that the use of compounded

pentobarbital—in and of itself—can be painful to the inmate because of the

possibility that the pentobarbital will be made of counterfeit ingredients or that it

will be contaminated during the compounding process. Plaintiffs argue that

Mississippi’s three-drug lethal injection protocol thus creates an unacceptable risk

of severe and unnecessary suffering, in violation of the Eighth Amendment.

To prevail on their Eighth Amendment claims, Plaintiffs must show that

there is an alternative to Mississippi’s three-drug protocol that is both “known and

available” and that significantly reduces the risk of severe pain to the inmate. See

Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015). To meet that burden, Plaintiffs

point to alternative lethal injection protocols used by other states, including

Georgia. The GDC has used a one-drug protocol that requires a single injection of

compounded pentobarbital in its most recent executions. Asserting that the single-

injection pentobarbital protocol might, in theory, reduce the risk of pain to the

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condemned inmate, Plaintiffs contend that it is a known and available alternative to

Mississippi’s three-drug protocol.

The Mississippi defendants2 dispute Plaintiffs’ claim that pentobarbital is

available to them, asserting at various times in the underlying § 1983 action that

they are unable to acquire pentobarbital, even in its compounded form. For

example, in their answer to Plaintiffs’ complaint, the Mississippi defendants denied

that a single-drug procedure using pentobarbital was a feasible alternative to

Mississippi’s three-drug protocol. They subsequently filed a motion to dismiss

Plaintiffs’ § 1983 action under Glossip, citing the sworn testimony of Mississippi

Department of Corrections officials stating that they had tried, but been unable to

find a source of pentobarbital. In a hearing on the motion, the attorney for the

Mississippi defendants emphasized that state corrections officials had not been

able to obtain pentobarbital for use in executions despite a diligent search.

Plaintiffs acknowledge that pentobarbital has become difficult to acquire: a

fact that is no surprise to them given that death penalty opponents have vigorously

lobbied drug manufacturers to make this drug entirely unavailable for use in

American executions. But Plaintiffs argue that it must be possible to obtain

pentobarbital in some form because a few states, like Georgia, have found

2 The Mississippi defendants include the Commissioner of the Mississippi Department of Corrections and various other state officials who are involved in implementing executions in Mississippi and who have been named in Plaintiffs’ § 1983 complaint. 5 Case: 17-12948 Date Filed: 01/10/2020 Page: 6 of 45

compounding pharmacies that agree to provide pentobarbital on condition of strict

anonymity. Accordingly, trying to unmask the GDC’s source for this drug,

Plaintiffs served the GDC with the non-party subpoena that is at issue in this

appeal. The subpoena directs the GDC to appear at a Rule 30(b)(6) deposition and

to produce documents concerning the feasibility of a one-drug lethal injection

protocol using pentobarbital, including specific details about the GDC’s source and

manner of acquiring pentobarbital.

The GDC filed a motion to quash the subpoena in the Northern District of

Georgia, arguing that the information sought in the subpoena was irrelevant to the

claims asserted in the underlying § 1983 litigation, that it was protected from

disclosure by Georgia’s Lethal Injection Secrecy Act and other privileges, and that

disclosure would impose an undue burden on the State. The motion was referred

to a magistrate judge, who granted the motion to quash. In his written order on the

motion, the magistrate judge relied heavily on the Lethal Injection Secrecy Act,

which precludes the disclosure of the “identifying information” of any person or

entity that participates in a Georgia execution or that supplies the drugs used by the

State in executions. See O.C.G.A. § 42-5-36(d).

Plaintiffs filed objections to the magistrate judge’s ruling, arguing that the

information sought by the subpoena was not privileged. After reviewing those

objections, the district court accepted and adopted the magistrate judge’s decision

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to quash the subpoena. First, the district court determined that the “clearly

erroneous” or “contrary to law” standard applied to its review of the magistrate

judge’s ruling because the motion to quash was a non-dispositive pretrial matter.

The district court then concluded that the magistrate judge’s ruling was neither

clearly erroneous nor contrary to law.

Plaintiffs appeal, arguing that (1) the district court applied the wrong

standard of review to the magistrate judge’s ruling and (2) the motion to quash

should have been denied on the merits.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to quash a subpoena “only for

an abuse of discretion.” In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015)

(citing Ariel v. Jones, 693 F.2d 1058, 1060 (11th Cir. 1982)). Thus, we will leave

the district court’s ruling on the motion “undisturbed” unless the district court has

“made a clear error of judgment, or has applied the wrong legal standard.”

Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005);

see also SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325,

1333 (11th Cir. 1996) (noting that an abuse of discretion occurs when the district

court makes “a clear error of judgment” or applies “an incorrect legal standard”

(internal quotation marks omitted)).

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DISCUSSION

I. The District Court Applied The Correct Standard Of Review To The Magistrate Judge’s Ruling On The Motion To Quash

As noted above, the district court reviewed the magistrate judge’s ruling on

the motion to quash under the clearly erroneous or contrary-to-law standard.

According to Plaintiffs, the district court should have reviewed the magistrate

judge’s ruling de novo, and its failure to do so requires reversal under the Federal

Magistrate’s Act, 28 U.S.C. § 636, and Rule 72 of the Federal Rules of Civil

Procedure.

The standard of review the district court was required to apply depends on

whether we characterize the GDC’s motion to quash as a dispositive or a non-

dispositive matter. See 28 U.S.C. § 636(b)(1). Pursuant to the Federal

Magistrate’s Act, a district court reviews a magistrate judge’s ruling on non-

dispositive matters under the clearly-erroneous or contrary-to-law standard. Id.

§ 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“When a pretrial matter not

dispositive of a party’s claim or defense is referred to a magistrate judge to hear

and decide . . . [t]he district judge in the case must consider timely objections and

modify or set aside any part of the order that is clearly erroneous or is contrary to

law.”). But if the matter is dispositive, the district court must review any objected-

to portion of the magistrate judge’s ruling de novo. 28 U.S.C. § 636(b)(1).

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The Federal Magistrate’s Act lists several examples of motions that qualify

as dispositive matters, including motions for injunctive relief, for judgment on the

pleadings, for summary judgment, to dismiss or quash an indictment, to suppress

evidence in a criminal case, to dismiss or permit maintenance of a class action, to

dismiss for failure to state a claim, and to involuntarily dismiss an action.

Id. § 636(b)(1)(A). Unsurprisingly, a routine pretrial discovery motion, such as the

motion to quash at issue in this case, is not included in this list of dispositive

motions. See In re Comm’r’s Subpoenas, 325 F.3d 1287, 1292 n.2 (11th Cir.

2003) (“The district court correctly observed that the standard of review by which

it reconsidered the magistrate judge’s [order quashing subpoenas] is ‘clearly

erroneous or contrary to law.’” (citing 28 U.S.C. § 636(b)(1)(A))), overruled on

other grounds by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241

(2004); Maynard v. Bd. of Regents of the Div. of Univ. of the Fla. Dep’t of Ed., 342

F.3d 1281, 1286 (11th Cir. 2003) (characterizing a magistrate judge’s discovery

rulings as non-dispositive orders and holding that the plaintiff’s failure to object to

the rulings in the district court waived his right to appeal them).

Indeed, Plaintiffs do not dispute that had the GDC’s motion to quash been

filed in the Southern District of Mississippi, where the underlying § 1983 action is

pending, the motion would be considered non-dispositive and a magistrate judge’s

ruling on it would be reviewed under the clearly-erroneous or contrary-to-law

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standard. Yet, Plaintiffs argue that the magistrate judge’s ruling on the motion to

quash filed in this case should be considered dispositive—and thus reviewed under

the de novo standard—because it resolves and finally disposes of the litigation

between Plaintiffs and the GDC that is pending in the Northern District of Georgia.

This argument is unpersuasive. The GDC’s motion to quash required

separate litigation between Plaintiffs and the GDC in the Northern District of

Georgia only because the place for compliance with the subpoena—and thus the

proper venue for filing a motion to quash—happened to be in the Northern District

of Georgia, not in Mississippi. See Fed. R. Civ. P. 45(c), (d)(3). And the

magistrate judge’s ruling on the motion resulted in a final disposition of the issues

raised in the motion, permitting Plaintiffs to appeal the ruling to this Court. See

Ariel, 693 F.2d at 1059 (noting that a litigant would have “no other means of

effectively obtaining review” of such a ruling if it were not considered final for

purposes of appeal). But that does not somehow transform into a dispositive ruling

a routine pretrial discovery motion that is ancillary to the underlying § 1983

litigation pending in the Southern District of Mississippi.

In short, we find no reason to treat the magistrate judge’s ruling on the

GDC’s motion to quash any differently than we would treat a similar pretrial

discovery motion had it been filed in the district where the underlying § 1983

action is pending: the Southern District of Mississippi. As such, we conclude that

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the district court correctly applied the clearly-erroneous or contrary-to-law

standard of review to the magistrate judge’s ruling on the motion to quash.

II. The District Court Did Not Abuse Its Discretion By Affirming The Magistrate Judge’s Ruling To Grant The GDC’s Motion To Quash

Having concluded that the district court applied the correct standard of

review, the only question for this Court is whether the district court otherwise

abused its discretion—by either relying on an error of law or committing a clear

error of judgment—when it affirmed the magistrate judge’s ruling and granted the

GDC’s motion to quash. See Ameritas Variable Life Ins., 411 F.3d at 1330. In

essence, Plaintiffs argue on appeal that the quashing of their subpoena amounts to

the improper creation of a new federal evidentiary privilege.3 We disagree with

Plaintiffs’ characterization, conclude that the district court did not abuse its

3 Plaintiffs also argue that the district court should have required the GDC to submit a privilege log before granting the motion to quash. See Fed. R. Civ. P. 45(e)(2)(A)(ii) (requiring a person withholding subpoenaed information under a claim of privilege to “describe the nature of the withheld documents [or] communications”). Given the primary focus of the GDC subpoena, we are unpersuaded by Plaintiffs’ argument. The purpose of requiring a privilege log is to “enable the parties to assess [a] claim” of privilege. Id. Here, it is apparent from the face of the subpoena that the information sought therein falls within the plain language of the Lethal Injection Secrecy Act. More importantly, the only information with even arguable relevance to Plaintiffs’ § 1983 claims—that is, information identifying Georgia’s source of compounded pentobarbital, which Plaintiffs argue is necessary to show that pentobarbital is a known and available alternative to Mississippi’s three-drug protocol, as required for Plaintiffs to prevail under Glossip—is directly barred from disclosure by the Act. The remainder of the information sought is either readily available to the public (for example, Georgia’s lethal injection protocols from 2010 to the present) or of limited relevance to Plaintiffs’ burden under Glossip to point to a known and available alternative to Mississippi’s three-drug protocol (for example, documents related to the process by which Georgia determined that it would or would not use midazolam in its executions). Thus, the district court did not abuse its discretion by quashing the subpoena in its entirety, and without first requiring the GDC to submit a privilege log. 11 Case: 17-12948 Date Filed: 01/10/2020 Page: 12 of 45

discretion in granting the motion to quash, and, accordingly, we affirm the district

court’s order.

A. The Relevance of the Information Sought in the GDC Subpoena to the Pending § 1983 Mississippi Litigation Is Highly Questionable

For purposes of discovery, a party may subpoena information from a non-

party to litigation, but Federal Rule of Civil Procedure 45 protects the subpoena

recipient by requiring the issuer to “take reasonable steps to avoid imposing undue

burden or expense on a person subject to the subpoena” and by setting out several

mandatory and discretionary grounds for quashing a subpoena. See Fed. R. Civ. P.

45(d)(1), (3). While Rule 45 does not specifically identify irrelevance as a reason

to quash a subpoena, it is generally accepted that the scope of discovery allowed

under Rule 45 is limited by the relevancy requirement of the federal discovery

rules.4 See Fed. R. Civ. P. 26(b)(1) (stating that discovery is allowed to the extent

it is “relevant to [a] party’s claim or defense”); Advisory Committee Note to the

1970 Amendments to Rule 45 (noting that the 1970 amendments “make it clear

that the scope of discovery through a subpoena is the same as that applicable to

4 Federal courts in this circuit have uniformly applied this principle. See Am. Fed. of State, County and Mun. Employees (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 476 (S.D. Fla. 2011) (“Federal courts . . . have treated the scope of discovery under a subpoena [a]s the same as the scope of discovery under Rule 26.”); Williams v. City of Birmingham, 323 F. Supp. 3d 1324, 1329 (N.D. Ala. 2018) (“The scope of permissible discovery with respect to a Rule 45 subpoena is that which is set forth in [Federal Rule of Civil Procedure] 26(b)(1)[.]”). 12 Case: 17-12948 Date Filed: 01/10/2020 Page: 13 of 45

Rule 34 and the other discovery rules”). Thus, a subpoena issued under Rule 45

should be quashed to the extent it seeks irrelevant information.

As indicated by the language of Rule 26, the relevance of information sought

in discovery depends on the claims asserted in the underlying action and the legal

standards that govern those claims. See Fed. R. Civ. P. 26(b)(1) (permitting

discovery of nonprivileged matter that is “relevant to any party’s claim or

defense”); see also Fed. R. Evid. 401 (stating that information is relevant if it has a

“tendency to make a fact more or less probable” and “the fact is of consequence in

determining the action”). To determine the relevance of information sought by

Plaintiffs in the GDC subpoena, one must examine the showing that Plaintiffs must

make in order to prove the Eighth Amendment claims they assert in the underlying

Mississippi litigation: (1) that Mississippi’s method of execution presents a

“substantial risk of serious harm” because it is likely to cause “serious illness and

needless suffering” and (2) that there is “an alternative” to the challenged method

of execution that is “feasible, readily implemented, and in fact significantly

reduces a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (quoting

Baze v. Rees, 553 U.S. 35, 50–52 (2008) (alteration adopted) (internal quotation

marks omitted).

The GDC subpoena seeks information concerning Georgia’s supply and use

of pentobarbital in a single-drug lethal execution protocol. Such information

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obviously has no relevance to the first prong of the Eighth Amendment analysis—

the risk of harm presented by Mississippi’s method of execution. But although he

ultimately decided that the subpoena should be quashed, the magistrate judge

concluded that information concerning Georgia’s supply and use of pentobarbital

in a single-drug protocol is relevant to the second prong of the Eighth Amendment

analysis because it could prove “the existence of a feasible alternative” to

Mississippi’s lethal injection protocol.

As explained at greater length below, we find it very questionable that the

information sought by Plaintiffs is relevant to even the second prong of Plaintiffs’

Eighth Amendment claim in the underlying Mississippi action. First, that Georgia

has found a supplier who, under a statutory assurance of absolute confidentiality,

provides pentobarbital to Georgia officials for their use in executions has very little

bearing on whether pentobarbital is a feasible alternative to Mississippi’s

challenged lethal injection protocol, absent some reason to believe that Georgia’s

anonymous pentobarbital supplier would supply the drug to Mississippi if its

identity is unmasked in this litigation. And, as the actions of lethal injection drug

suppliers around the nation clearly indicate, it is highly unlikely that Georgia’s

pentobarbital supplier will provide the drug to Mississippi if its identity is

disclosed pursuant to the GDC subpoena. After all, if this anonymous supplier

wanted to market the drug to Mississippi, nothing is stopping it from doing so.

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Moreover, it is quite predictable that the supplier will stop providing the drug to

Georgia once its identity is disclosed.

Second, to prevail on their Eighth Amendment claims, Plaintiffs must show

not only the existence of a feasible alternative but also that this feasible alternative

“in fact significantly reduces a substantial risk of severe pain.” Glossip, 135 S. Ct.

at 2737 (internal quotation marks omitted). Yet, Plaintiffs’ own allegations in the

Mississippi complaint reveal their additional contention that use of compounded

pentobarbital in an execution would itself create a risk of severe pain, meaning that

they also challenge the constitutionality of the use of this substance.

1. Information concerning Georgia’s supply and use of pentobarbital in executions cannot help Plaintiffs prove a feasible alternative to Mississippi’s lethal injection protocol. That a drug supplier under statutory assurances of absolute confidentiality

has agreed to provide Georgia with pentobarbital for use in executions says

nothing about the willingness of that supplier to provide Mississippi with the drug

should the supplier’s identity be revealed in this litigation. Indeed, we have so

held in the past when a capital litigant before our court argued the existence of a

feasible alternative to the drug protocol used by his state based on the fact that

other states use the particular alternative in question. See Arthur v. Comm’r, Ala.

Dep’t of Corr., 840 F.3d 1268, 1302 (11th Cir. 2016) (“We expressly hold that the

fact that other states in the past have procured a compounded drug and pharmacies

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in Alabama have the skills to compound the drug does not make it available to

[Alabama] for use in lethal injections in executions.”), abrogated on other grounds

by Bucklew v. Precythe, 139 S. Ct. 1112, 1127–29 (2019). Another court in similar

litigation has likewise recognized that a drug supplier operating under a promise of

confidentiality is unlikely to provide another state with lethal injection drugs, and

probably will stop providing the drugs altogether, once its identity is disclosed in

litigation. See McGehee v. Texas Dep’t of Criminal Justice, No. H-18-1546, 2018

WL 3996956, at *9 (S.D. Tex. Aug. 21, 2018). Indeed, Plaintiffs are well aware

that, in their own case, Mississippi’s present lethal injection drug supplier will

refuse to provide Mississippi with drugs for use in executions should its identity be

revealed. See Jordan v. Hall, No. 3:15CV295HTW-LRA, 2018 WL 1546632, at

*8 (S.D. Miss. Mar. 29, 2018).

To understand why lethal injection drug suppliers are so resistant to

disclosure of their identities, one must be aware of the history underlying the

practice of lethal injection in this country, which the Supreme Court helpfully

summarized in Glossip. See Glossip, 135 S. Ct. at 2731–34. As the Glossip Court

explained, the death penalty has been an accepted form of punishment since the

founding of this country, but our views of how it should be implemented have

changed over time, and we have settled on lethal injection as the most humane

means of carrying out a death sentence. See id. at 2731–32 (noting that lethal

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injection “today is by far the most prevalent method of execution in the United

States” (internal quotation marks omitted)); see also Ledford v. Comm’r, Ga. Dep’t

of Corr., 856 F.3d 1312, 1318 (11th Cir. 2017) (“[T]he firing squad, hanging, the

electric chair, and the gas chamber have each in turn given way to more humane

methods [of execution], culminating in today’s consensus on lethal injection.”

(second alteration in original) (internal quotation marks omitted)). Having settled

on lethal injection as the preferred method of execution, states also eventually

settled on a preferred means of implementing an execution by lethal injection: a

three-drug protocol involving (1) an initial injection of sodium thiopental, a fast-

acting barbiturate sedative that induces a deep, comalike unconsciousness, (2) a

second injection of a paralytic agent that inhibits all muscular-skeletal movements

and thus stops respiration, and (3) a third injection of potassium chloride, which

induces cardiac arrest. See Glossip, 135 S. Ct. at 2732. This protocol, which the

Supreme Court held constitutional in Baze, for many years “enabled [s]tates to

carry out the death penalty in a quick and painless fashion.” Id. at 2733.

Although Baze “cleared any legal obstacle” to the three-drug protocol

described above, the Glossip Court explained, “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.” Id. Their advocacy had its

intended effect: the only American manufacturer of sodium thiopental “was

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persuaded to cease production of the drug.” Id. Then when the manufacturer

announced plans to resume production of the drug in Italy, activists kept the

pressure on and their vigorous advocacy prompted both the manufacturer and the

Italian government to disallow the sale of sodium thiopental for use in American

executions. See id. Ultimately, rather than face the uproar created by death

penalty opponents, the company entirely withdrew sodium thiopental from the

market. See Glossip, 135 S. Ct. at 2733.

Having lost access to sodium thiopental as a result of the vociferous pressure

brought to bear by death-penalty opponents, states were forced to try to find a

different first drug for use in the three-drug lethal injection protocol. They found

such a drug—pentobarbital—which, like sodium thiopental, is a barbiturate that

can reliably induce a coma-like and pain-free state. See id. But anti-death-penalty

advocates once again quickly intervened to pressure the pentobarbital manufacturer

into refusing to provide the drug to states for use in executions. They succeeded.

See id. After being heavily lobbied by death penalty opponents, the Danish

manufacturer of pentobarbital took steps to block the use of the drug in American

executions. See id. As described by the Glossip Court, the ultimate outcome of

this very effective advocacy by death penalty opponents has been to make it

difficult—if not impossible—for states to acquire sodium thiopental and

pentobarbital for use in executions, even though it is generally acknowledged that

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the use of either of these drugs renders an execution by lethal injection as humane

as it can possibly be. See id. at 2733–34.

In the wake of these continuing set-backs, some states have managed to find

a compounding pharmacy that is willing to supply pentobarbital for the state to use

in lethal injections. Yet, understandably, given the vehement objection visited on

lethal injection drug manufacturers, these compounding pharmacies have agreed to

supply the compounded pentobarbital only when confidentiality is guaranteed

either by contract or statute. See In re Missouri Dep’t of Corr., 839 F.3d at 734–35

(citing testimony indicating that Missouri’s pentobarbital supplier had advised a

state corrections department official that the supplier would no longer provide the

drug to Missouri if its identity was disclosed); McGehee, 2018 WL 3996956, at *9

(noting that Texas’s pentobarbital supplier had “based its decision to supply

[Texas] with drugs on its identity remaining secret” (internal quotation marks

omitted)); Arthur, 840 F.3d at 1302 (“[W]hile four states ha[ve] recently used

compounded pentobarbital in their own execution procedures . . . none were

willing to give the drug to [Alabama] or name their source.”).

And a growing number of states, including Georgia, have passed laws that

are designed to protect the confidentiality of such pharmacies, as well as the other

people and entities who participate in executions. See O.C.G.A. § 42-5-36(d)(2)

(barring disclosure of lethal injection drug supplier information and classifying

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such information as a “confidential state secret”); Va. Code § 53.1-234 (stating that

the identity of Virginia’s lethal injection drug suppliers “shall be confidential . . .

and shall not be subject to discovery or introduction as evidence in any civil

proceeding unless good cause is shown”); Ohio Revised Code § 2949.221

(providing that information identifying Ohio’s lethal injection drug suppliers “shall

be classified as confidential” and is not subject to “discovery, subpoena, or any

other means of legal compulsion for disclosure”); Tex. Gov’t Code Ann.

§ 552.1081 (exempting lethal injection drug supplier information from the

disclosure requirements of the Texas Public Information Act); Miss. Code Ann.

§ 99-19-51(6)(c) (stating that the identity of lethal injection drug suppliers “shall at

all times remain confidential”).

As explained in the McGehee action in Texas, pharmacies view the

confidentiality provided by these state statutes as a necessary shield against the

“threats, harassment, and boycotts to which other suppliers of lethal injection drugs

have been subjected as a result of their lawful decision to supply state correctional

departments with drugs needed to carry out executions.” McGehee, 2018 WL

3996956, at *9 (internal quotation marks omitted). See also In re Virginia Dep’t of

Corr. v. Jordan, No. 3:17MC02, 2017 WL 5075252, at *19 (E.D. Va. Nov. 30,

2017) (citing an intimidating email sent to Missouri’s lethal injection drug supplier

threatening that “it only takes one fanatic with a truckload of fertilizer to make a

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real dent in business as usual”), aff’d, Virginia Dep’t of Corr. v. Jordan, 921 F.3d

180 (4th Cir. 2019) ; Arthur, 840 F.3d at 1305 (“Given the controversial nature of

the death penalty, it is not surprising that parties who might supply these drugs are

reluctant to have their names disclosed.”).

Georgia’s secrecy statute, which was enacted in 2013, states that the identity

of any person or entity who participates in a lethal injection is “a confidential state

secret” that is not “subject to disclosure . . . under judicial process.” See O.C.G.A.

§ 42-5-36(d). Thus, the pharmacy that supplied the GDC with the pentobarbital

used in Georgia’s most recent executions did so under the assurance of absolute

confidentiality provided by this Georgia statute. As Glossip has made clear,

should the pharmacy’s identity be revealed as a result of the enforcement of the

present subpoena, there can be no suspense as to what will happen next. Anti-

death penalty advocates will pressure this compounding pharmacy to cease

supplying pentobarbital to any prison system. And if history is a teacher—and it

surely is on this matter—the pharmacy will be forced to knuckle under to this

pressure. Meaning that not only will Georgia no longer have a supplier for the first

drug in its three-drug protocol, but Mississippi will be no closer to finding a

willing supplier of pentobarbital, which is ostensibly the purpose behind Plaintiffs’

subpoena. Thus, as it is quite likely that, once its identity is revealed, the

pharmacy will simply cease to supply the drug to any state, including Georgia,

21 Case: 17-12948 Date Filed: 01/10/2020 Page: 22 of 45

there is very little likelihood that the drug-supplier information requested in the

GDC subpoena will help Plaintiffs in their effort to show a feasible alternative to

Mississippi’s lethal injection protocol. See In re Missouri Dep’t of Corr., 839 F.3d

at 736 (“[B]ecause [the supplier] would not supply pentobarbital to Mississippi

once its identity is disclosed, we conclude that [the supplier’s] identity has no

relevance to the inmates’ Eighth Amendment claim.”); Bucklew, 139 S. Ct. at 1129

(“[A]n inmate must show that his proposed alternative method is not just

theoretically feasible but also readily implemented” (internal quotation marks

omitted)).

2. Given Plaintiffs’ own challenge to the safety of compounded pentobarbital as a lethal injection drug, information providing a source for that drug would not help Plaintiffs show an alternative method of execution that significantly reduces the risk of pain involved in a Mississippi execution.

There is a second reason why the information requested by Plaintiffs bears

only marginal relevance to Plaintiffs’ underlying claims in the Mississippi action.

It is undisputed that the only form of pentobarbital the GDC has been able to

acquire in recent years is compounded pentobarbital, and that Georgia has in fact

used compounded pentobarbital in its most recent executions. See Ledford, 856

F.3d at 1315 (noting that in March 2013 Georgia began conducting lethal

injections with a single dose of compounded pentobarbital, rather than the single

dose of FDA-approved pentobarbital it formerly used.). Plaintiffs’ subpoena seeks

22 Case: 17-12948 Date Filed: 01/10/2020 Page: 23 of 45

from the GDC information concerning its source of compounded pentobarbital

ostensibly because this information might enable Mississippi to likewise use this

same source to obtain compounded pentobarbital and thereby to utilize a drug that

would be constitutionally acceptable.

Yet, at the same time Plaintiffs offer this rationale to support their claim that

the information is relevant, Plaintiffs’ complaint nonetheless questions the safety

of compounded pentobarbital. Indeed, the Mississippi complaint contains more

than twenty allegations describing the “substantial risk of serious harm and severe

pain” to an inmate who is subjected to a lethal injection using compounded

pentobarbital. Plaintiffs might well respond that the Mississippi complaint

specifically challenges the use of compounded pentobarbital as the first drug in

Mississippi’s three-drug lethal injection protocol, not as the sole drug to implement

the execution. Certainly, some allegations can be so interpreted.

However, in other allegations in the Mississippi complaint, Plaintiffs clearly

question the safety of compounded pentobarbital, no matter what protocol is used.

For example, Plaintiffs allege that compounded drugs are not FDA-approved, are

not subject to regulations that ensure their strength and quality, and have not been

evaluated for effectiveness and safety. Further noting the experimental nature of

compounded pentobarbital, Plaintiffs allege that they will be among the first

prisoners in Mississippi to be executed with compounded pentobarbital. Given the

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uncertainty of the compounding process, Plaintiffs allege that “a substantial risk of

serious harm to Plaintiffs” will result from the use of compounded pentobarbital.

Indeed, Plaintiffs allege that compounded pentobarbital “poses a substantial

risk of serious harm” to the prisoner “by inflicting pain and suffering itself.”

Plaintiffs point to the Oklahoma execution of Michael Lee Wilson, who, after

being injected with compounded pentobarbital, stated: “I feel my whole body

burning.” Wilson’s experience, which the complaint alleges to have been “an

excruciatingly painful reaction” prompted by the injection of compounded

pentobarbital, reveals that “Defendants’ untried and untested drugs create a

substantial risk that Plaintiffs will suffer unnecessary and excruciating pain either

by the injection of the compounded pentobarbital causing a painful reaction itself,

or by the compounded pentobarbital failing to work, resulting in a torturous death

by life suffocation and cardiac arrest.” (emphasis added). In short, Plaintiffs allege

that compounded pentobarbital “made with unknown and potentially contaminated

or counterfeit ingredients is nothing short of human experimentation and presents

an unacceptable risk that Plaintiffs will experience unnecessary pain and suffering

if and when they are executed.”

That’s not all. Plaintiffs actually seek an injunction prohibiting the use of

any compounded drug, and particularly compounded pentobarbital, in any

execution. All of which makes one wonder what the point is of outing a supplier

24 Case: 17-12948 Date Filed: 01/10/2020 Page: 25 of 45

of a substance, use of which substance Plaintiffs will immediately attack even

should a willing public supplier ever again be located.

Obviously, Plaintiffs’ allegations challenging the safety of compounded

pentobarbital greatly undermine their argument that the identity of Georgia’s

supplier of this substance is relevant to their Eighth Amendment claims. Pursuant

to Baze and Glossip, Plaintiffs cannot prevail on these claims merely by proving

that there is a feasible alternative to Mississippi’s lethal injection protocol. Rather,

they must also prove the existence of a feasible alternative that “would entail a

significantly less severe risk” of pain. See Glossip, 135 S. Ct. at 2737. See also

Bucklew, 139 S. Ct. at 1130 (“A minor reduction in risk is insufficient; the

difference must be clear and considerable.”). Thus, even assuming the information

sought in the GDC subpoena would help Plaintiffs prove that there is some

alternative to Mississippi’s three-drug protocol, that information will not advance

their Eighth Amendment claims unless the proposed alternative substantially

reduces the risk of severe pain to the condemned inmate. See Bucklew, 139 S. Ct.

at 1130.

Plaintiffs fail this test. They appear to have little to nothing to gain by

obtaining information from the GDC about its use of compounded pentobarbital in

executions. At best, enforcement of the GDC subpoena can only provide Plaintiffs

with an alternative method of execution that—besides not being feasible because

25 Case: 17-12948 Date Filed: 01/10/2020 Page: 26 of 45

disclosure of the supplier will likely result in its refusal to supply in the future—

Plaintiffs contend to be unconstitutional. See Glossip, 135 S. Ct. at 2737

(“[P]risoners cannot successfully challenge a [s]tate’s method of execution merely

by showing a slightly or marginally safer alternative. Instead, prisoners must

identify an alternative that is feasible, readily implemented, and in fact

significantly reduces a substantial risk of severe pain.” (internal quotation marks

and citation omitted)).

This conclusion renders problematic Plaintiffs’ argument that the

information requested is relevant. Nonetheless, as explained below, even if the

information sought in the GDC subpoena is relevant to the claims asserted in the

underlying Mississippi litigation, the subpoena must still be quashed under the

provision of Federal Rule of Civil Procedure 45(d)(3)(A) requiring that result when

a subpoena “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).

B. Potential Pertinent Grounds for Quashing the Present Subpoena

Georgia’s Lethal Injection Secrecy Act states that:

The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure . . . under judicial process.

26 Case: 17-12948 Date Filed: 01/10/2020 Page: 27 of 45

O.C.G.A. § 42-5-36(d)(2). The Act defines “identifying information” to include

“any records or information that reveals a name, residential or business address,

residential or business telephone number, day and month of birth, social security

number, or professional qualifications” of a person or entity that “manufactures,

supplies, [or] compounds” lethal injection drugs. Id. § 42-5-36(d)(1), (2). It

classifies such information as “a confidential state secret.” Id. § 42-5-36(d)(2).

Rule 45(d)(3) provides several potential grounds for quashing the GDC

subpoena: some of them mandatory and some discretionary. Among the

mandatory grounds, a subpoena must be quashed if it requires disclosure of

“privileged or other protected matter” (Rule 45(d)(3)(A)(iii)) or if the subpoena

“subjects a person to undue burden” (Rule 45(d)(3)(A)(iv)). Among the

discretionary grounds, Rule 45(d)(3)(B)(i) gives the district court the authority to

quash a subpoena that would require the disclosure of trade secrets and other

confidential information. In relevant part, the discretionary rule states that a

district court may quash a subpoena that requires “disclosing a trade secret or other

confidential research, development, or commercial information.” Fed. R. Civ. P.

45(d)(3)(B)(i).

The magistrate judge’s explanation of his reasoning in quashing the

subpoena was admittedly quite spare. Indeed, he did not cite Rule 45 at all in his

written order. Yet, both his comments at the hearing and his written order indicate

27 Case: 17-12948 Date Filed: 01/10/2020 Page: 28 of 45

that he considered the interests underlying all three provisions to be apt in

determining whether the motion to quash was meritorious.5

As to the provision of Rule 45 permitting the quashing of a subpoena that

seeks to disclose trade secrets and other confidential information—Rule

45(d)(3)(B)(i)—“courts weigh the claim to privacy against the need for

disclosure.” See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce

Fenner & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006); see also United

States ex rel. Willis v. SouthernCare, Inc., No. CV410-124, 2015 WL 5604367, at

*5 (S.D. Ga. Sept. 23, 2015) (applying a balancing test to the Rule 45(d)(3)(B)(i)

analysis to determine “whether the need for disclosure outweighs [the] claim to

privacy”). Certainly, the interests sought to be protected by the trade-secret

provision in Rule 45 are analogous to those the State seeks to protect by preventing

any disclosure of information revealing the identity of persons connected with the

supplying of compounded pentobarbital. That Georgia has deemed the source of

the drug to be a “confidential state secret,” O.C.G.A. § 42-5-36(d)(2), and has

5 His statements during the hearing on the motion to quash indicated the need to factor into his analysis the heavy burden that compliance with the GDC subpoena would impose on the state. For example, the magistrate judge noted the need to balance Plaintiffs’ need for the information requested in the subpoena in the underlying Mississippi litigation with the “need[] to keep the information quiet.” In his written order, he alluded to the need to decide whether the information sought in the GDC subpoena was “privileged or otherwise protected.” Finally, it is apparent that the magistrate judge viewed the information sought in the subpoena as protected from disclosure due to its highly confidential nature. 28 Case: 17-12948 Date Filed: 01/10/2020 Page: 29 of 45

formalized that characterization via a statute forbidding disclosure demonstrates

the importance the State places on maintaining the confidentiality of this

information. Indeed, this Court has acknowledged that disclosure of the

information would threaten the State’s ability to fully enforce its criminal

sentencing laws. Gissendaner v. Comm’r, Ga. Dep’t of Corr., 803 F.3d 565, 569

(11th Cir. 2015) (“Gissendaner II”). Yet, we are aware of no authority that has

expanded the trade-secret provision, which is typically applied in commercial

contexts, to a scenario such as this. Thus, we do not base our affirmance on this

ground.

As to the provision of Rule 45 that mandates the quashing of a subpoena that

would require the disclosure of “privileged or other protected matter” (Rule

45(d)(3)(A)(iii)), the existence of a Georgia statute prohibiting disclosure does not,

by itself, give rise to a federal privilege. Federal evidentiary privileges in federal

question litigation arising in federal court are governed by federal law, and a state

evidentiary privilege does not automatically give rise to a federal evidentiary

privilege. See Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992) (“A claim of

privilege in federal court is resolved by federal common law, unless the action is a

civil proceeding and the privilege is invoked with respect to an element of a claim

or defense as to which State law supplies the rule of decision.” (internal quotation

marks omitted)). And while federal courts are empowered by Federal Rule of

29 Case: 17-12948 Date Filed: 01/10/2020 Page: 30 of 45

Evidence 501 to recognize new federal privileges arising from state law, they

generally are hesitant to do so. See Doe No. 1 v. United States, 749 F.3d 999, 1009

(11th Cir. 2014) (observing that Congress has empowered the federal courts

through Rule 501 to recognize new privileges, but that there is a presumption

against doing so).

But the text of Rule 45(d)(3)(A)(iii) indicates that the protection of that

specific provision extends beyond the strict bounds of “privileged” information to

encompass “other protected matter.” Fed. R. Civ. P. 45(d)(3)(A)(iii). While

caselaw has not fleshed out the definition of the term “other protected matter,”

there are certainly sound arguments here sufficient to prompt consideration

whether the confidentiality agreement between the State of Georgia and the

undisclosed pentobarbital supplier, safeguarded by a state statute forbidding

disclosure of that supplier’s identity, constitutes “other protected matter.”

Indeed, federal courts have recognized that privacy interests and

confidentiality concerns can factor into a decision whether to quash a subpoena

under Rule 45, even though the information requested by the subpoena is not

subject to a federal evidentiary privilege. See Alig-Mielcarek v. Jackson, 286

F.R.D. 521, 526–27 (N.D. Ga. 2012) (quashing a plaintiff’s request for nonparty

educational records based in part on the privacy rights protected by the Family

Educational Rights and Privacy Act of 1974 (“FERPA”), which “does not provide

30 Case: 17-12948 Date Filed: 01/10/2020 Page: 31 of 45

a privilege preventing disclosure of student records, [but nevertheless] seeks to

protect the confidentiality of educational records”); McGehee, 2018 WL 3996956,

at *11 (noting that the Texas statute exempting lethal injection drug supplier

information from the requirements of a state Public Information Act “exhibits a

democratically manifested intent not to disclose the source of Texas’ lethal

injection drugs” which, though it does not give rise to a federal evidentiary

privilege, should not be ignored). See also Porter v. Ray, 461 F.3d 1315, 1324

(11th Cir. 2006) (affirming refusal to allow discovery of state parole records,

which are not subject to a federal evidentiary privilege, based in part on

confidentiality considerations); McGoy v. Ray, 164 F. App’x 876, 878 (11th Cir.

2006) (holding that the district court did not abuse its discretion when it found that

the facts asserted by the plaintiff were insufficient to compel discovery of

confidential parole records, which were designated a confidential state secret by

state statute).

Moreover, when focusing on the need for protection, it is not just protection

for the State and its interests that are at issue here. When a citizen is assured via a

state statute that his identity will be protected if, at some great physical and

economic risk to himself, he provides a service to the state, that promise should not

be lightly discarded.

31 Case: 17-12948 Date Filed: 01/10/2020 Page: 32 of 45

Nevertheless, we do not base our decision to affirm the district court’s

quashing of Plaintiff’s third-party subpoena on the trade-secret provision or the

“other protected matter” provision set out in Rule 45(d)(3)(B)(i) and

45(d)(3)(A)(iii), respectively. Although the interests underlying those provisions

inform our ultimate analysis, we conclude that Plaintiffs’ subpoena was required to

be quashed because it subjected the GDC to an “undue burden,” which, pursuant to

Rule 45(d)(3)(A)(iv), mandates the quashing of the subpoena.

C. Compliance with Plaintiffs’ Subpoena Would Impose an Undue Burden on the State of Georgia

Even if Rule 45(d)(3)’s protection of a “trade secret,” of “confidential

information,” and of “other protected matter” is inapt here for purposes of

quashing the GDC subpoena, it is clear that compliance with this subpoena would

impose an “undue burden” on the State of Georgia. It therefore must be quashed

pursuant to Rule 45(d)(3)(A)(iv), which makes mandatory the quashing of any

subpoena that would impose such a burden on the target of the subpoena.

The undue burden analysis requires the court to “balance the interests served

by demanding compliance with the subpoena against the interests furthered by

quashing it.” 9A Wright & Miller, Federal Practice and Procedure § 2463.1 (3d

ed. 2019). See also Virginia Dep’t of Corr., 2017 WL 5075252, at *5, *10

(applying the undue burden analysis). Several factors have been identified as

pertinent to the analysis, including the “relevance of the information requested” to 32 Case: 17-12948 Date Filed: 01/10/2020 Page: 33 of 45

the underlying litigation and the “burden [that would be] imposed” by producing it.

Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). The

status of the subpoena recipient as a non-party is also a factor that can weigh

against disclosure in the undue burden inquiry. See id. (“[I]f the person to whom

the document request is made is a non-party, the court may also consider the

expense and inconvenience to the non-party.”).

1. Prior Litigation Concerning the Lethal Injection Secrecy Act

As discussed above, Georgia passed the Lethal Injection Secrecy Act in

response to the concerted effort by death penalty opponents to make lethal

injection drugs unavailable for use in American executions. See Owens v. Hill,

295 Ga. 302, 317 (2014) (describing the rationale underlying the passage of

Georgia’s Lethal Injection Secrecy Act). One can reasonably infer that it is only

because of this statute that Georgia has been able to secure a source of

pentobarbital for use in executions despite its relative scarcity. And Georgia’s

ability to obtain compounded pentobarbital would be jeopardized were it not for

the confidentiality provided by the Lethal Injection Secrecy Act. See id.

(“[W]ithout the confidentiality offered to execution participants by the statute, as

the record and our case law show, there is a significant risk that persons and

entities necessary to the execution would become unwilling to participate.”); see

also Gissendaner II, 803 F.3d at 569 (“To require . . . that Georgia open up about

33 Case: 17-12948 Date Filed: 01/10/2020 Page: 34 of 45

its source of pentobarbital would result in the drug becoming completely

unavailable for use in executions, even though its use does not violate the Eighth

Amendment.”), cert. denied sub nom., Gissendaner v. Bryson, 136 S. Ct. 26

(2015).

This Court has had several opportunities to consider the legality and the

implications of the Lethal Injection Secrecy Act. See Gissendaner II, 803 F.3d at

569; Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266–67 (11th Cir.

2014), cert. denied sub nom., Wellons v. Owens, 573 U.S. 928 (2014); Terrell v.

Bryson, 807 F.3d 1276, 1277 (11th Cir. 2015); Jones v. Comm’r, Ga. Dep’t of

Corr., 811 F.3d 1288, 1292–94 (11th Cir. 2016). In these cases—which involved

Georgia death row prisoners who were seeking information concerning the source

of Georgia’s compounded pentobarbital—this Court deferred to the Lethal

Injection Secrecy Act, recognizing that the confidentiality provided by the Act is

necessary to protect Georgia’s source of pentobarbital for use in executions and

concluding that the condemned inmates in these cases had no right to the

disclosure of information made confidential by the Act, including information that

would identify the supplier or source of the drugs to be used in the inmate’s

execution. See Jones, 811 F.3d at 1292–94 (reviewing this Court’s case law

applying the Lethal Injection Secrecy Act).

34 Case: 17-12948 Date Filed: 01/10/2020 Page: 35 of 45

Admittedly, the decisions in those cases did not address the quashing of a

non-party subpoena under Rule 45(d)(3)(A)(iv). But they acknowledged the

states’ significant interest in keeping information about the source of their lethal

injection drugs secret.

2. Litigation In Other Circuits Concerning Disclosure of Confidential Information Concerning a State’s Source For a Drug Used in Executions

Courts in other circuits have considered the question before us in a Rule 45

context and have concluded that disclosure of lethal-injection-drug-supplier

information—such as the information sought in the GDC subpoena—would

impose an undue burden on a state. See In re Missouri Dep’t of Corr., 839 F.3d at

736 (granting a writ of mandamus precluding the disclosure of Missouri’s

pentobarbital supplier on relevancy and undue burden grounds); In re Ohio

Execution Protocol Litig., 845 F.3d 231, 239 (6th Cir. 2016) (affirming the district

court’s Rule 26(c) protective order precluding disclosure of information that could

reveal the identity of Ohio’s lethal injection drug supplier because disclosure

would impose an “undue burden” on the state); Virginia Dep’t of Corr., 2017 WL

5075252, at *3, *11 (granting the Virginia Department of Correction’s motion to

quash a subpoena to the extent the information sought in the subpoena “might lead

to the disclosure of the supplier of the chemicals the VDOC utilizes in carrying out

an execution or to the disclosure of the identities of the members of the VDOC

35 Case: 17-12948 Date Filed: 01/10/2020 Page: 36 of 45

execution team”); McGehee, 2018 WL 3996956, at *10 (concluding that full

compliance with a subpoena served on the Texas Department of Criminal Justice,

and seeking lethal injection drug supplier information, would create an undue

burden on the state). These courts have held that a subpoena seeking such

information must therefore be quashed under Rule 45(d)(3)(A)(iv).

The rationale of these decisions is best illustrated by the Eighth Circuit’s

undue burden analysis in a case involving the state of Missouri and the same

Mississippi death row inmates who served the GDC subpoena that is at issue here.

See In re Missouri Dep’t of Corr., 839 F.3d at 736. In that case, the Mississippi

death row inmates served a third-party subpoena on the Missouri Department of

Corrections, seeking “information regarding [Missouri’s] use of pentobarbital in

executions, including the identity of [Missouri’s] anonymous supplier.” See id. at

734. Missouri corrections officials moved to quash the subpoena in the district

court on various grounds, including undue burden under Rule 45(d)(3)(A)(iv). See

id. In support of their undue burden argument, the Missouri officials submitted an

affidavit from the director of the state corrections department explaining that

“because [Missouri’s] pentobarbital suppliers require the assurance of

confidentiality, producing the information sought by the inmates would result in

the state no longer being able to obtain the drug for use in executions.” Id.

(internal quotation marks omitted).

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The district court rejected the undue burden argument and denied the motion

to quash, and the Eighth Circuit initially denied Missouri’s petition for a writ of

mandamus to prevent enforcement of the district court’s ruling. See id. at 735.

But upon rehearing, and based on its conclusion that Missouri’s pentobarbital

supplier would not provide the drug to Mississippi prison officials—and that it

would in fact stop providing the drug even to Missouri if its identity were revealed

pursuant to the subpoena—the Eighth Circuit held that disclosure of the

information sought in the subpoena would impose an undue burden on Missouri.6

In re Missouri Dep’t of Corr., 839 F.3d at 736. The court explained that Missouri

has an interest in “exercising its sovereign power” to enforce its criminal laws, and

that this interest would be harmed if disclosure of the drug supplier information

requested in the subpoena caused Missouri to lose access to the drugs necessary to

carry out a lawfully imposed death sentence. See id. Noting that the Missouri drug

supplier information had “little, if any, relevance to” the Eighth Amendment

claims asserted by the Mississippi inmates, given the supplier’s reluctance to

provide the drugs to Mississippi, the court concluded that the harm of disclosure

“clearly outweighs the need of the inmates” for the information, and that

6 The court also noted that the drug supplier information would not “remain relevant” to the claims asserted by the plaintiffs if, upon disclosure of its identity, the drug supplier “indisputably refuses to make pentobarbital available to anyone” including Mississippi. See In re Missouri Dep’t of Corr., 839 F.3d at 736. 37 Case: 17-12948 Date Filed: 01/10/2020 Page: 38 of 45

compliance with the subpoena would thus impose an “undue burden” on Missouri.

Id. at 736–37.

Although it was not mentioned in the Missouri decision, several of the courts

that have denied disclosure of lethal injection drug supplier information pursuant to

an undue burden analysis have relied in part on state secrecy statutes that—like

Georgia’s Lethal Injection Secrecy Act—are intended to maintain the

confidentiality of such information. See In re Ohio Execution Protocol Litig., 845

F.3d at 237 (noting that the district court “identified—as non-dispositive

evidence—the existence of Ohio’s secrecy statute” in support of its Rule 26(c)

undue burden holding); Virginia Dep’t of Corr., 2017 WL 5075252, at *18–19

(citing Va. Code Ann. § 53.1-234, which provides that the identities of lethal

injection drug suppliers are confidential, exempt from the state Freedom of

Information Act, and not subject to discovery unless good cause is shown);

McGehee, 2018 WL 3996956, at *7 (citing Tex Gov’t Code Ann. § 552.1081,

which exempts from the Texas Public Information Act disclosure of “identifying

information” of lethal injection drug suppliers).

None of the courts in these cases held that the state secrecy statutes created a

new federal evidentiary privilege that absolutely bars the disclosure of lethal

injection drug supplier information. See In re Ohio Execution Protocol Litig., 845

F.3d at 239 (rejecting the suggestion that the district court’s reliance on the statute

38 Case: 17-12948 Date Filed: 01/10/2020 Page: 39 of 45

had “federalize[d] the Ohio secrecy law as a common-law privilege for

immunity”). Rather, the courts viewed the state statutes as evidence of the need

for confidentiality with respect to such information, which need weighs heavily in

the undue burden analysis. See id. at 237 (describing the concerns that led to the

creation of Ohio’s secrecy statute: “the burden on and prejudice to the state that

disclosure presents” (internal quotation marks omitted)); Virginia Dep’t of Corr.,

2017 WL 5075252, at *19 (characterizing the Virginia secrecy statute as “an

evidentiary ‘add-on’ to the reasons counseling against disclosure”); McGehee,

2018 WL 3996956, at *7 (recounting the events that led to the enactment of the

Texas secrecy statute, which included a “firestorm of angry emails, protests, and

media coverage that ultimately dissuaded [a Texas pharmacy] from continuing to

supply the TDCJ with lethal-injection drugs” (internal quotation marks omitted)).

Like those courts that have expressly addressed the relevance of state

secrecy statutes in this context, we view Georgia’s Lethal Injection Secrecy Act,

not as creating a new federal evidentiary privilege, but as evidence of the need to

maintain the confidentiality of the lethal injection drug supplier information

requested in the GDC subpoena, which need clearly outweighs any interest

Plaintiffs might otherwise have in obtaining the information. And like those

courts, we agree that the undue burden provision of Rule 45(d)(3)(A)(iv) applies to

bar disclosure of lethal injection drug supplier information when such disclosure

39 Case: 17-12948 Date Filed: 01/10/2020 Page: 40 of 45

would jeopardize a state’s ability to implement its death penalty laws. We explain

our thinking.

3. Application of Undue Burden Standard to the Present Case

We conclude (1) that Georgia has a strong interest in enforcing its criminal

laws, including its death penalty laws; (2) that disclosure of the information

requested in Plaintiffs’ subpoena would clearly burden that interest; (3) that the

relevance of the information to Plaintiffs’ Mississippi case is marginal to non-

existent; and (4) that Georgia’s interests clearly outweigh Plaintiffs’ interests in

disclosure.

Georgia obviously has a strong interest in enforcing its criminal laws. See In

re Blodgett, 502 U.S. 236, 239 (1992) (noting the “great weight” of a state’s

interest in “exercising its sovereign power to enforce the criminal law”). This

interest encompasses the state’s ability to implement a lawfully imposed death

sentence. See In re Ohio Execution Protocol Litig., 845 F.3d at 240 (citing

authority for the proposition that a state “has an essential interest in carrying out a

lawfully imposed sentence”); see also Nelson v. Campbell, 541 U.S. 637, 644

(2004) (calling the state’s interest in implementing its death penalty laws

“significant”). That Plaintiffs and others oppose the death penalty cannot justify

providing Plaintiffs with a means to effectively end Georgia’s ability to carry out

its death sentences. In re Ohio Execution Protocol Litig., 845 F.3d at 240

40 Case: 17-12948 Date Filed: 01/10/2020 Page: 41 of 45

(observing that “[o]pprobrium alone” should not be permitted to subvert this

significant state interest.).

Second, as discussed at great length above, disclosure of the information

sought by Plaintiffs in the GDC subpoena would greatly jeopardize Georgia’s

ability to implement its criminal laws because disclosure of the identity of its

supplier would likely result in the loss of that source of supply. To summarize, and

as recognized by the Supreme Court in Glossip, the historical record reveals that

disclosure of the supplier for a particular drug used by a state in executions will

have predictable consequences: anti-death penalty advocates will hound the

supplier of that drug until the supplier capitulates and ceases supplying the drug.

And without that drug or something comparable, the state’s executions will

necessarily cease. See discussion supra at 15–19.

Indeed, unable to obtain either sodium thiopental or pentobarbital—drugs

that have been recognized as providing a humane method of lethal injection—as a

result of the actual or feared retaliation by anti-drug penalty advocates, some states

have turned to the drug midazolam, a sedative in the benzodiazepine family of

drugs. Yet, midazolam has been the subject of numerous Eighth Amendment

challenges, including the challenge mounted by Plaintiffs in the underlying

Mississippi litigation. See Glossip, 135 S. Ct. at 2734–35. Other states, including

Georgia, have managed to locate a source of pentobarbital from a compounding

41 Case: 17-12948 Date Filed: 01/10/2020 Page: 42 of 45

pharmacy, on the condition that the identity of the pharmacy remain confidential.

See McGehee, 2018 WL 3996956, at *3 (noting that such pharmacies “have

attempted to keep their identit[ies] secret”). To ensure a continuing source of

supply, some states have enacted statutes that protect the anonymity of the source

or to otherwise assure confidentiality. See discussion at 19–22; see also Waldrip v.

Owens, No. 1:14-CV-2119-WCO, 2014 WL 12496989, at *1 (N.D. Ga. July 8,

2014) (“One of the stated intentions of [Georgia’s secrecy] law is to allow the

[s]tate to obtain lethal injection drugs from manufacturers without the

manufacturers having to face criticism from opponents of capital punishment,

which might lead the manufacturers to refuse to provide the drugs.”); Owens, 295

Ga. at 317 (“[W]ithout the confidentiality offered to execution participants by the

statute, as the record and our case law show, there is a significant risk that persons

and entities necessary to the execution would become unwilling to participate.”);

Gissendaner II, 803 F.3d at 569 (“To require . . . that Georgia open up about its

source of pentobarbital would result in the drug becoming completely unavailable

for use in executions, even though its use does not violate the Eighth

Amendment.”); Arthur, 840 F.3d at 1301 (citing testimony indicating that Alabama

was unable to procure compounded pentobarbital for use in lethal injections

despite contacting nearly thirty potential sources of the drug); McGehee, 2018 WL

3996956, at *7 (observing that Texas exempted lethal injection drug supplier

42 Case: 17-12948 Date Filed: 01/10/2020 Page: 43 of 45

information from the disclosure requirements of its state Public Information Act

after one such disclosure caused a “firestorm of angry emails, protests, and media

coverage that ultimately dissuaded [a] pharmacy from continuing to supply [Texas]

with lethal-injection drugs” (internal quotation marks omitted)).

Although these state laws do not give rise to a federal evidentiary privilege,

they weigh heavily in the undue burden analysis because they are evidence of the

strong interest states have in preventing disclosure of lethal injection drug supplier

information and the burden to the states that disclosure of such information

imposes. See discussion supra at 35–39.

Third, to determine whether the subpoena subjects the subpoena recipient to

an undue burden, one must identify both that burden as well as the interests served

by demanding compliance with the subpoena. As to the latter inquiry, the

relevance of the requested information to the underlying litigation, or the lack

thereof, is important. In addition, a subpoena recipient’s status as a non-party to

the litigation is also a factor that can weigh against disclosure.

Plaintiffs lose on both counts. GDC is not a party to Plaintiffs’ underlying

litigation with the State of Mississippi. 7 More importantly, and as explained

7 Indeed, the Mississippi district court where the underlying action is pending has entered a protective order that prohibits Plaintiffs from obtaining drug supplier information even from the very Mississippi defendants who are parties to that action. See Jordan v. Hall, No. 3:15CV295HTW-LRA, 2018 WL 1546632, at *11 (S.D. Miss. Mar. 29, 2018) (concluding that “on balance, the hardship to the Defendants of preventing them from obtaining lethal execution 43 Case: 17-12948 Date Filed: 01/10/2020 Page: 44 of 45

earlier, the relevance of the subpoenaed information to Plaintiffs’ claims in the

Mississippi case is marginal to non-existent. See discussion supra at 12–26.

Plaintiff’s purported reason for seeking the source of Georgia’s compounded

pentobarbital is to rebut Mississippi’s defense that the latter is unable to find a

source for pentobarbital. In other words, Plaintiffs would seemingly have us

believe that if Plaintiffs could just identify the source of this drug, Plaintiffs could

perhaps broker a deal between Mississippi and the now-anonymous Georgia

supplier for the latter to provide this drug to Mississippi correctional

administrators. Of course, that is a totally incredible argument. As explained

above, once the Georgia supplier is identified, in defiance of a Georgia statute that

promised the supplier confidentiality, there can be no suspense as to what will

happen next. Its identity now unmasked, the supplier will either immediately stop

providing the drug to Georgia or anyone else, or the supplier will eventually be

hounded by anti-death penalty activists until it is forced to cease production of this

substance. In short, disclosure of the supplier’s identity is unlikely to bring

Mississippi any closer to obtaining the compounded pentobarbital, which is the

purported goal behind the subpoena.

drugs outweighs the Plaintiffs’ need for this information, which could be gathered by other means”). 44 Case: 17-12948 Date Filed: 01/10/2020 Page: 45 of 45

Further undermining the relevancy of the requested information to Plaintiffs’

is the fact that Plaintiffs’ assertions suggest that they deem compounded

pentobarbital as itself being unsafe and unconstitutional. In fact, Plaintiffs seek an

injunction against the use of compounded pentobarbital in executions, prompting

one to further wonder what Plaintiffs would gain if we required Georgia to reveal

its source, and thereby renounce its own promise of confidentiality. See discussion

supra at 22–26.

Yet, while it is unlikely that Plaintiffs would gain any information helpful in

pursuing its claims challenging Mississippi’s death penalty protocol should the

subpoena be enforced, it is clear what the GDC would lose: its source for

compounded pentobarbital. Thus, because the interests served by quashing the

subpoena clearly and greatly outweigh the interests served by enforcing it, we

conclude that enforcement would unduly burden the GDC and therefore Rule

45(d)(3)(A)(iv) requires that the subpoena be quashed.

CONCLUSION

For all of the above reasons, we AFFIRM the district court’s order granting

the GDC’s motion to quash.