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Virginia Department of Corrections v. Jordan

United States Court of Appeals, Fourth Circuit

April 11, 2019

VIRGINIA DEPARTMENT OF CORRECTIONS, Petitioner - Appellee,
v.
RICHARD JORDAN; RICKY CHASE, Respondents-Appellants. STATE OF NEBRASKA; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF ARIZONA; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSOURI; STATE OF NEVADA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF WYOMING, Amici Supporting Appellee.

          Argued: November 1, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:17-mc-00002-MHL)

         ARGUED:

          James W. Craig, THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, New Orleans, Louisiana, for Appellants.

          Margaret Hoehl O'Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Emily M. Washington, THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, New Orleans, Louisiana; Christina Bonanni, William C. Miller, PILLSBURY WINTHROP SHAW PITTMAN LLP, Washington, D.C.; David M. Shapiro, Roderick & Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Appellants.

          Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

          Douglas J. Peterson, Attorney General, James D. Smith, Solicitor General, David A. Lopez, Deputy Solicitor General, Ryan S. Post, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska; Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama; Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas; Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona; Pamela Jo Bondi, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF FLORIDA, Tallahassee, Florida; Christopher M. Carr, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF GEORGIA, Atlanta, Georgia; Lawrence G. Wasden, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF IDAHO, Boise, Idaho; Curtis T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana; Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas; Jeff Landry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana; Joshua D. Hawley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI, Jefferson City, Missouri; Adam Paul Laxalt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City, Nevada; Mike Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma; Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Marty J. Jackley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH DAKOTA, Pierre, South Dakota; Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Austin, Texas; Sean D. Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah; Peter K. Michael, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WYOMING, Cheyenne, Wyoming, for Amici Curiae.

          Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.

          RICHARDSON, CIRCUIT JUDGE.

         Richard Jordan and Ricky Chase, both Mississippi death-row inmates, have filed a federal lawsuit challenging that state's lethal-injection procedures under the Eighth Amendment. As part of discovery in that lawsuit, they served a subpoena on the Virginia Department of Corrections ("VDOC") that sought documents and testimony about Virginia's execution practices. VDOC provided some documents to Jordan and Chase and then moved to quash the subpoena in district court. The district court granted VDOC's motion, finding that requiring VDOC to provide any further response to the subpoena would impose an undue burden. VDOC urges us to affirm on the merits or, if it would not prevail on the merits, because the subpoena infringes Virginia's state sovereign immunity.

         As we explain below, we need not reach state sovereign immunity given VDOC's conditional assertion of that defense. Instead, we affirm on the merits. The district court reasonably found that Jordan and Chase did not have a need for further discovery from VDOC, a nonparty, that outweighed the burdens the discovery would impose. The district court thus did not abuse its discretion in quashing the subpoena.

         I.

         This appeal is ancillary to a civil action pending in the Southern District of Mississippi. Jordan and Chase, the plaintiffs in that action, challenge Mississippi's method of execution, which they claim will cause them unnecessary physical pain. Mississippi executes prisoners by lethal injection using a three-drug protocol that begins with the administration of an anesthetic. At the start of the plaintiffs' litigation, that anesthetic was the drug pentobarbital; after the identity of Mississippi's pentobarbital supplier was disclosed, the state had to replace pentobarbital with another drug, midazolam. Mississippi's loss of its pentobarbital supplier was just one instance of a well-known phenomenon in which drug suppliers, once exposed to pressure from activists opposed to the death penalty, refuse to supply drugs to state corrections departments. See generally Glossip v. Gross, 135 S.Ct. 2726, 2733-34 (2015) (discussing this trend).

         Jordan and Chase have mounted several attacks on Mississippi's execution practices. They argue that Mississippi should use a one-drug protocol that consists of a large dose of a single anesthetic, not a three-drug protocol that uses an anesthetic followed by other drugs. They also claim that midazolam should not be used as the anesthetic in the three-drug protocol, because it is inadequate to prevent pain during execution. Jordan and Chase further challenge Mississippi's use of drugs prepared by compounding pharmacies that, in their view, lack meaningful regulatory oversight. To prevail in their attacks, Jordan and Chase must show "a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason." Bucklew v. Precythe, No. 17-8151, slip op. at 13 (U.S. Apr. 1, 2019) (citing Glossip, 135 S.Ct. at 2737-38; Baze v. Rees, 553 U.S. 35, 52 (2008) (plurality opinion)).

         Jordan and Chase have tried to meet this burden, in part, by comparing Mississippi's practices to those of other states using lethal injection. Virginia is one such state. Like Mississippi, Virginia carries out executions using a three-drug protocol that includes compounded midazolam. Like Mississippi, it previously used pentobarbital in place of midazolam. And like Mississippi, Virginia is eager to keep the identity of its drug supplier secret, lest pressure from death-penalty opponents cause the supplier to stop providing the state with drugs for use in executions.

         During discovery, Jordan and Chase served a third-party subpoena on VDOC. The subpoena sought both documents and testimony. The document requests covered various topics relating to Virginia's executions, including how Virginia has obtained its execution drugs. The testimony was sought under Federal Rule of Civil Procedure 30(b)(6), which authorizes parties to take testimony from entities like corporations and government agencies. A Rule 30(b)(6) subpoena must identify the subject matter of the testimony sought; the topics listed in Jordan and Chase's Rule 30(b)(6) request overlapped substantially with their document requests.

         In response to the subpoena, VDOC provided Jordan and Chase with a number of documents, many of which originated in prior litigation about Virginia's execution practices. The documents included labels and certificates of analysis for Virginia's execution drugs, a redacted copy of Virginia's agreement with the compounding pharmacy that serves as Virginia's drug supplier, a redacted copy of VDOC's execution manual, and transcripts from evidentiary hearings in the prior litigation. The transcripts included a discussion of an episode in 2015 in which a VDOC official drove to Texas to obtain pentobarbital from Texas officials for use in a Virginia execution. VDOC informed Jordan and Chase's counsel that it was willing to provide an additional affidavit to "fill in any of the gaps," but that it otherwise objected to the subpoena and would move to quash if the parties could not agree on how to narrow the scope of the subpoena. J.A. 161.

         No agreement was reached, and VDOC moved to quash. VDOC argued that the subpoena sought privileged material; unduly burdened Virginia, its drug supplier, and the members of its execution team;[1] and violated Virginia's state sovereign immunity. VDOC described the subpoena as an overbroad "fishing expedition" into its execution practices, which had limited (if any) relevance to Jordan and Chase's Mississippi lawsuit. J.A. 69-70. What is more, VDOC argued, the outstanding requests in the subpoena would reveal the identity of Virginia's supplier of execution drugs. As VDOC pointed out, that information is normally kept confidential: Virginia state law recognizes a qualified privilege for the identity of execution-drug suppliers. Va. Code § 53.1-234. Disclosing this information would not only infringe on the drug supplier's own interest in confidentiality, VDOC argued, but also restrict Virginia's ability to carry out lawful executions by chilling suppliers from providing execution drugs.

         In response, Jordan and Chase argued that the information they sought was relevant and that disclosure would not impose a burden on VDOC. In their view, they needed discovery from VDOC to show the required "feasible and readily implemented" alternative. Information about Virginia's execution drugs would be relevant (1) to evaluate Mississippi's claim that using pentobarbital is not a "feasible" alternative because Mississippi cannot acquire pentobarbital, and (2) to show the feasibility of the one-drug protocol. Jordan and Chase also suggested that Virginia might have evidence that the use of midazolam in the three-drug protocol poses an excessively high risk of suffering. In support of this claim, they pointed to a 2017 execution that Virginia officials carried out using midazolam, during which an unusual 30-minute delay occurred. J.A. 225-26. ...


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