Argued: November 1, 2018
from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, District
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.
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.
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.
AGEE, KEENAN, and RICHARDSON, Circuit Judges.
RICHARDSON, CIRCUIT JUDGE.
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
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.
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).
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)).
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.
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.
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.
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; 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.
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. ...