United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE .
matter comes before the Court on the Motion to Quash the
third-party Notice of Deposition and Subpoena issued in
Jordan v. Fisher, (S.D.Miss.). Neither party
requested a hearing on the matter. For the reasons that
follow, the Motion to Quash will be GRANTED to the extent it
seeks information beyond that already disclosed.
Pertinent Procedural Background
sentenced Richard Jordan and Ricky Chase to death.
Mississippi proposes to execute Jordan and Chase by the
serial intravenous injection of three drugs: midazolam,
vecuronium bromide, and potassium chloride. Jordan and Chase
("Plaintiffs") filed a civil rights action under 42
U.S.C. § 1983 asserting that execution under the above
protocol violates the Eighth Amendment. "To prove
this protocol violates the Eighth Amendment, Jordan and Chase
must show (1) that the Mississippi protocol raises a
substantial risk of serious harm and (2) that there is a
known, available alternative to the Mississippi protocol
which reduces this risk. Glossip v. Gross, 135 S.Ct.
2726, 2738 (2015)." (Resp. Opp'n 1, ECF No. 12.)
underlying challenge to Mississippi's method of execution
continues the impassioned debate regarding where the contours
of the Eighth Amendment's prohibition of cruel and
unusual punishment lie when a state ultimately implements a
death sentence. This opinion must address, in detail, the
method by which a death sentence may be
imposed. Here, Jordan and Chase dispute the
three-drug lethal injection protocol Mississippi uses. The
inmates seek discovery from the Virginia Department of
Corrections ("VDOC") which they contend relates to
their constitutional challenge to Mississippi's
A. Two Courts Have Quashed Subpoenas from Plaintiffs
When Plaintiffs Sought Materials from Single-Drug
to this motion, Plaintiffs sought information from two other
states in addition to Mississippi itself. Both of those
third-party subpoenas have been quashed entirely. First,
Jordan and Chase served upon the Missouri Department of
Corrections ("MDOC") "a third-party subpoena
for documents and a Federal Rule of Civil Procedure ...
30(b)(6) deposition notice seeking information regarding
MDOC's use of pentobarbital in lethal injections,
including the identity of MDOC's supplier of
pentobarbital." In re Mo. Dep 't of Corr.,
839 F.3d 732, 734 (8th Cir. 2016), cert, denied, sub nom.
Jordan v. Mo. Dep't of Corr., 137 S.Ct. 2180 (2017).
The United States Court of Appeals for the Eighth Circuit
ultimately granted MDOC's writ of mandamus prohibiting
the discovery "on the grounds of relevancy and undue
burden." Id. at 737.
Missouri, the district court had found that information as to
the use of pentobarbital as a single drug might be relevant
to the Plaintiffs' quest to establish a feasible and
readily implemented alternative. But the Eighth Circuit
ultimately ruled the request to be irrelevant and unduly
burdensome. Based on a record expanded beyond that of the
district court, the Eighth Circuit concluded that the release
of the drug supplier's identity would result in the
supplier "refusing to make pentobarbital available to
anyone, " id. at 736, meaning that discovery of
the supplier's name would result in its identity becoming
irrelevant to all method of execution claims because
the company would no longer supply to Missouri, Mississippi,
or any state. And, the court concluded, Missouri would
consequently suffer an undue burden on its interest in
"exercising its sovereign power to enforce criminal
law." Id. (quoting In re Blodgett, 502
U.S. 236, 239(1992)).
Plaintiffs served upon the Georgia Department of Corrections
("GDOC") a third-party subpoena seeking a
deposition and documents related to executions in Georgia.
Ga. Dep't Corr. v. Jordan,
l:16-cv-02582-RWS-JCF, at 1 (N.D.Ga. Oct. 20, 2016) (ECFNo.
12-9).The GDOC uses a single drug, pentobarbital,
to carry out its executions. Id. at 2. Plaintiffs
sought "to secure discovery from GDOC concerning (a)
whether pentobarbital is available, (b) the factors which
went into GDOC's decision to switch from a three-drug
protocol to a single-drug protocol, and (c) whether a
single-drug protocol is a feasible alternative method of
execution." Id. The GDOC asserted, inter
alia, that the information sought was protected by
Georgia's Lethal Injection Secrecy Statute and moved to
quash the third-party subpoena. Id. at 4.
district court granted the GDOC's motion to quash the
subpoena. Id. at 8. While finding that this
single-drug protocol might be relevant to the Plaintiffs'
need to establish the existence of a feasible and available
alternative to Mississippi's three-drug protocol,
id. at 3, the district court observed that "the
Eleventh Circuit has uniformly given Georgia's Lethal
Injection Secrecy Act an expansive reading, essentially
viewing it as creating a total ban on the production of
information concerning Georgia's choices in connection
with its lethal injection protocol, " id. at 6.
The Court then concluded, "where Georgia's own death
row prisoners have been flatly denied access to information
covered by Georgia's Lethal Injection Secrecy Act, it
similarly bars Jordan and Chase's efforts to secure the
same type of information via subpoena for use in their
Mississippi case." Id. at 7.
B. Virginia Provided Information within a Week of
Receiving Plaintiffs' Subpoena, Despite
the Fact that Information about Virginia's Three-Drug
Protocol Likely Lacks Relevance to Plaintiffs' Attempt to
Establish a Feasible and Available Alternative to
Mississippi's Three-Drug Protocol
seeking information from Missouri and Georgia, Plaintiffs
served the VDOC with a third-party subpoena for documents and
a deposition notice seeking information regarding,
inter alia, VDOC's current lethal
injection drug supplies, testing results, and efforts to
obtain lethal injection drugs. (ECF No. 2-2.) Virginia, like
Mississippi, utilizes a three-drug protocol beginning with
midazolam. The VDOC quickly and voluntarily supplied
Plaintiffs with a host of information responsive to the
subpoena. (ECF No. 2-3.) The VDOC, however, refused to supply
Plaintiffs with, inter alia, information that 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
execution team. VDOC argues that these aspects of the
subpoena should be quashed because they require compliance
with discovery requests that are overbroad, not narrowly
tailored to the subject of that dispute, require the
production of irrelevant information, and would disclose
identities that are privileged as a matter of state and
federal constitutional law. Compliance with the discovery
requests would pose an undue burden on VDOC, Virginia's
lethal injection drug suppliers, and members of the execution
(Mem. Supp. Mot. Quash 18, ECF No. 2.)
assert that the VDOC's arguments lack merit. Plaintiffs,
however, fail to direct the Court to any decision from any
federal court of appeals where the court found that disclosure
of the identities of the execution team or the supplier of
the lethal injection materials pursuant to a discovery
request to be appropriate. Conversely, the circuit courts
that have addressed the issue have concluded that disclosure
of that information pursuant to a discovery request would
impose an undue burden upon a state seeking to carry out
lawfully imposed executions in the future. See In re Ohio
Execution Protocol Litig, 845 F.3d at 239 (citation
omitted) ("[B]ut for the protective order, Defendants
will suffer an undue burden and prejudice in effectuating
Ohio's execution protocol and practices."); In
re Mo. Dep 't of Corr., 839 F.3d at 736-38 (granting
petition for rehearing, and granting petition for writ of
mandamus because disclosure of the supplier's identity
placed an undue burden on the state by preventing it from
acquiring the drug for executions, and the inmates offered no
assurances that active investigation of the supplier would
not lead to further disclosure of identities); Jones v.
Comm 'r, Ga. Dep't of Corr., 811 F.3d 1288,
1292-93 (11th Cir.) (citation omitted) (internal quotation
marks omitted) (concluding death row inmate has no
constitutional right to "know where, how, and by whom
lethal injection drugs will be manufactured, " and no
"due process right-of-access claim" to this
information exists), cert, denied, 136 S.Ct. 998
(2016). For the reasons stated more fully below,
the Court finds that requiring the VDOC to file a further
response to the subpoena would pose an undue burden.
Accordingly, the Motion to Quash will be granted to the
extent it seeks information not already
Relevant Legal Principles Regarding the Motion to
Federal Rules of Civil Procedure 26 and 45
Federal Rules of Civil Procedure govern the scope of
discovery. "Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case" Fed.R.Civ.P. 26(b)(1). Pursuant to Federal Rule
of Civil Procedure 45, parties may use subpoenas to command
parties or non-parties to "produce designated documents,
electronically stored information, or tangible things in that
person's possession, custody, or control."
45(d)(1) emphasizes that "[a] party or attorney
responsible for issuing ... a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person
subject to the subpoena." Fed.R.Civ.P. 45(d)(1). A court
"must quash or modify a subpoena that fails to
allow a reasonable time to comply; ... requires disclosure of
privileged or other protected matter, if no exception or
waiver applies; or subjects a person to undue
burden.'" Fed. R. Civ. P. 45(d)(3)(A) (emphases
added). "[T]he burden for showing that a subpoena must
be quashed under Rule 45([d])(3) is at all times on the
movant." Ohio Valley Envtl Coal., Inc. v. U.S. Army
Corps of Eng'rs, No. 1:11MC35, 2012 WL 112325, at *2
(N.D. W.Va. Jan. 12, 2012); see Sheet Metal Workers
Int7 Ass 'n v. Sweeney, 29F.3d 120, 125
(4th Cir. 1994).
party may seek to quash or modify a subpoena on grounds of
irrelevance or overbreadth, even though irrelevance and
overbreadth are not explicitly listed as grounds to quash in
Rule 26(c)(1) or Rule 45([d])(1), because either irrelevance
or overbreadth necessarily establishes undue burden."
In re Subpoenas for Documents Issued to Thompson
McMullan, P.C., No. 3:16-MC-1, 2016 WL 1071016, at *5
(E.D. Va. 17, 2016). This principle flows from the
interaction of Rule 26(c)(1) and Rule 45(d)(1) with Rule
26(b)(1). Id. "[T]he scope of discovery allowed
under a subpoena is the same as the scope of discovery
allowed under Rule 26." Singletary v. Sterling,
289 F.R.D. 237, 240-41 (E.D. Va. 2012) (citing Cook v.
Howard, 484 Fed.Appx. 805, 812 (4th Cir. 2012);
Barrington v. Mortage IT, Inc., No. 07-61304-CIV
2007 WL 4370647, at *3 (S.D. Fla. Dec. 10, 2007)).
"Despite the additional proportionality consideration
required under the amendment to Rule 26, ... 'the [2015
amendment] does not place on the party seeking discovery the
burden of addressing all proportionality
considerations.'" Brown v. Mountainview Cutters,
LLC, No. 7:15cv204, 2016 WL 3045349, at *3 (W.D. Va. May
27, 2016) (alteration in original) (quoting Fed.R.Civ.P. 26
advisory committee's note to 2015 amendment).
26(b) limits the scope of discovery to "any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
" Fed.R.Civ.P. 26(b)(1), and Rule 45(d)(1) requires that
a party seeking discovery through the use of a subpoena
"must take reasonable steps to avoid imposing undue
burden or expense on a person subjected to the
subpoena." Fed.R.Civ.P. 45(d)(1). Thus,
any subpoena that seeks evidence that is neither relevant ...
or that is so overbroad that compliance with its demands will
necessarily require production of irrelevant evidence, seeks
evidence outside the scope of Rule 26(b)(1). Such a subpoena
creates an undue burden because it necessarily imposes
greater hardship than is necessary to obtain proper
In re Subpoenas for Documents Issued to
Thompson McMullan, P. C, 2016 WL 1071016, at *5.
order to avoid imposing an undue burden, third-party
subpoenas, like the one before the Court, "must be
narrowly crafted to relevant subject matter in the underlying
litigation." Id. at *6 n.6 (citing Theofel
v. Farey-Jones, 359 F.3d 1066, 1071-72 (9th Cir. 2004);
In re Subpoena Duces Teucm to AOL, LLC, 550
F.Supp.2d 606, 612 (E.D. Va. 2008)).
Therefore, in assessing whether a subpoena imposes an undue
[c]ourts should balance the need for discovery against the
burden imposed on the person ordered to produce documents.
Non-party status is one of the factors the court uses in
weighing the burden of imposing discovery. An undue burden is
identified by looking at factors such as relevance, the need
for the documents, the breadth of the document request, the
time period covered by such request, the particularity with
which the documents are described, and the burden imposed.
Wyoming v. U.S. Dep 't of Agric, 208 F.R.D. 449,
452-53 (D.D.C. 2002) (citations omitted).
as discussed more fully below, disclosures pursuant to a
subpoena that impede a state's ability to carry out
executions constitute an undue burden. See Ohio Execution
Protocol Litigation, 845 F.3d 231, 238-39 (6th
Cir. 2016); In re Mo. Dep't Corr., 839 F.3d 732,
737 (8th Cir. 2016).
Eighth Amendment Principles in Method of Execution
most recent method-of-execution challenge the Supreme Court
of the United States has evaluated, a majority of the Court
upheld the denial of a preliminary injunction as to whether
Oklahoma's three-drug protocol using midazolam violated
the Eighth Amendment. Glossip v. Gross, 135 S.Ct.
2726, 2736-46 (2015). In Glossip, the Supreme Court
reiterated an earlier finding that "because it is
settled that capital punishment is constitutional, '[i]t
necessarily follows that there must be a [constitutional]
means of carrying it out.'" Id. at 2732-33
(quoting Baze v. Rees, 553 U.S. 35, 47 (2008)).
While the dissent in Glossip challenged this
"flawed syllogism, " id. at 2795, the
Court majority plainly confirmed its earlier observations in
Baze that because "[s]ome risk of pain is
inherent in any method of execution, " the Eighth
Amendment "does not require the avoidance of all risk of
pain" in carrying out executions, Baze, 553
U.S. at 47. More specifically, the Court in Baze
defined the contours of the Eighth Amendment by stating that
"[s]imply because an execution method may result in
pain, either by accident or as an inescapable consequence of
death, [it] does not establish the sort of'objectively
intolerable risk of harm' that qualifies as cruel and
unusual." Id. at 50. "[P]risoners cannot
successfully challenge a method of execution unless they
establish that the method presents a risk that is
'sure or very likely to cause serious illness
and needless suffering, and give rise to sufficiently
imminent dangers.'" Glossip, 135
S.Ct. at 2737 (quoting Baze, 553 U.S. at 50).
"[T]he condemned prisoner [must] establish that the
State's lethal injection protocol creates a demonstrated
risk of severe pain." Id. (quoting
Baze, 553 U.S. at 61).
the Glossip dissent's contention that no second
requirement need be established, this Court must apply what
the majority in Glossip unmistakably articulated as
a second necessary showing an inmate must make: the inmate
must also show that "the risk is substantial when
compared to the known and available alternatives."
Id. (quoting Baze, 553 U.S. at
61). This second prong requires the condemned
inmate to suggest an alternative method of execution that is
"known and available" as well as "feasible,
readily implemented, and in fact significantly [likely to]
reduce a substantial risk of severe pain." Id.
(quoting Baze, 553 U.S. at 61, 52). The burden rests
with the plaintiff to "plead and prove" both prongs
of the test. Id. at 2739; see Brooks v. Warden,
Comm 'r Ala. Dep 't of Corr., 810 F.3d 812, 819
(11th Cir. 2016) (citation omitted), cert, denied,
136 S.Ct. 979 (2016).
undertake a proper analysis under Glossip, this
Court must evaluate whether Plaintiffs, who challenge
Mississippi's three-drug protocol, are entitled to
discover information beyond that already provided by the VDOC
as to its own three-drug protocol. In order to conclude that
Plaintiffs should receive further information, the Court must
find that any additional information would be relevant to the
Mississippi Amended Complaint, and that production would not
unduly burden the VDOC, a third-party entity. Thus, the Court
must provide some background regarding the use of lethal
injection in Virginia, Plaintiffs' claims in Mississippi,
and how the two interrelate. Only with that backdrop can the
Court assess whether the motion to quash should be granted.
Factual and Procedural Principles Regarding the Motion to
Lethal Injection in Virginia
an alternative to execution by electric chair, Virginia
adopted lethal injection on January 1, 1995." Gray
v. McAuliffe, No. 3:16CV982-HEH, 2017 WL 102970, at *6
(E.D. Va. Jan. 10, 2017). Since then, Virginia has
efficaciously "executed [over] 80 inmates by lethal
injection." Id. Like Mississippi,
"Virginia employs a three-drug protocol to perform an
execution by lethal injection." Id. The first
drug in Virginia's protocol "renders the condemned
inmate unconscious." Id.
this year, Ricky Javon Gray challenged, via preliminary
injunction, the VDOC's proposal to carry out his
execution by the proposed use of compounded midazolam to
render him insensate. Id. at *1. "Gray argue[d]
that the VDOC's planned use of compounded drugs,
including compounded midazolam, carrie[d] a demonstrated risk
of inflicting severe pain upon him." Id. at *4
(citation omitted). The Gray Court conducted an
evidentiary hearing at which "A. David Robinson, the
Chief of Corrections Operations for the VDOC, recounted the
difficulty encountered by the VDOC in acquiring lethal
injection drugs. He also explained the methodology the VDOC
has employed for monitoring and controlling the potency of
the compounded drugs at issue." Id. at *6
the Gray Court concluded that Gray "fail[ed] to
make any showing, much less a clear showing, that midazolam
poses 'an objectively intolerable risk of
harm.'" Id. at * 12 (quoting
Glossip, 135 S.Ct. at 2737). The Court further
concluded that the evidence "establishe[d] that the
administration of 500 mg of midazolam can render a prisoner
unconscious and insensate to pain during the remainder of the
three-drug protocol. The evidence [also] demonstrate[d] that
even 500 mg of midazolam used alone will result in a
'certainty of death.' (Prelim. Inj. Hr'g Tr.
54.)" Id. at *13.
Court further found that Gray had put forth no persuasive
"evidence that compounded drugs subject [Gray] to 'a
substantial risk of serious harm.'" Id. at
*15 (quoting Glossip, 135 S.Ct. at 2737). In this
regard, the Court noted,
[T]he evidence before the Court reflects that the VDOC
selected a licensed pharmacy and a licensed pharmacist to
make the compounded drugs. Moreover, the compounded midazolam
and potassium chloride have been tested by [a chemist at the
Virginia Department of Consolidated Laboratory Services,
General Services Division ("VDCL")]. The testing
confirms that each bottle contains the substance and
concentration that each label reflects and that the substance
meets the concentration level of comparable manufactured
drugs. The presence of contaminants in the compounded drugs
would have been revealed in the VDCL's test results.
Compounded drugs are utilized routinely, even in clinical
settings, and are just as efficacious as their manufactured
counterparts. Gray fails to point to any instance where a
state has unsuccessfully used compounded midazolam or
compounded potassium chloride in the execution context.
Id. at *14. The Gray Court concluded that
Gray fell "far short of demonstrating entitlement to a
preliminary injunction, " denied the motion for a
preliminary injunction, and allowed Gray's execution to
proceed. Id. at *5, *22.
their Response in Opposition to the Motion to Quash,
Plaintiffs suggest that, in the end, Gray's execution was
not "without incident." (Resp. Opp'n 2, ECF No.
12.) Plaintiffs quote a newspaper account of Gray's
execution that stated, in pertinent part:
[Gray] was placed on the gurney, and a half-dozen members of
the execution team strapped down his limbs and torso. At
8:54, a curtain was drawn blocking the view of the witnesses
so IV lines could be placed and other procedures conducted.
By 9:14, the curtain was still closed and the Virginia public
safety secretary, Brian J. Moran, apparently prompted by
questions from one of Gray's lawyers, consulted with a
corrections official in the witness room. The curtain was not
opened again until 9:27. Gray's lawyer, Elizabeth
Peiffer, with the Virginia Capital Representation Resource
Center, said following the execution that "I do have
great concern ... it was a very unusual amount of time."
(Id.)However, this same newspaper report
revealed that, during the 33-minute interval between 8:54 and
9:27, no lethal injection drugs were administered. The delay
flowed from difficulty citing intravenous lines or conducting
other preliminary procedures, but the remainder of the
newspaper article, which Plaintiffs' themselves cite, did
not report any untoward "incident" that occurred
during the actual injection of the lethal
When the curtain was reopened, Gray declined to make a
statement and at 9:28, the first of the three chemicals was
introduced. Gray lifted his head up, looked around, moved his
toes and legs. At 9:29, his eyes were closed. He appeared to
take a number of deep breaths and he appeared to make snoring
or groaning sounds 
At 9:32, an officer checked to make sure Gray was
unconscious. At 9:33, all his body movements appeared to have
stopped. At 9:41, the physician came out from behind the
curtain and used a stethoscope to listen to his chest. He was
pronounced dead at 9:42.
own source recounts that within five minutes of injecting the
first chemical, all of Gray's bodily movements had
stopped. And within fourteen minutes Gray was pronounced
dead. Plaintiffs fail to plausibly suggest that
Virginia's execution utilizing midazolam as the first
drug in a three-drug protocol was fraught with the sort of
problems admittedly experienced by other states. Cf The
Estate of Lockett by & through Lockett v. Fallin,
841 F.3d 1098, 1105-06 (10th Cir. 2016), cert, denied sub
nom. Lockett v. Fallin, 137 S.Ct. 2298 (2017) (citation
omitted) (describing an execution that lasted 43 minutes and
where the inmate said, "something's wrong, "
"buck[ed] and writhe[d], " and "clench[ed] his
teeth and grimac[ed] in pain").
Plaintiffs' Amended Complaint as It Pertains to the
Mississippi's Three-Drug Protocol Is Similar to that
Used by Virginia
Mississippi Department of Corrections ("Mississippi
DOC") intends to execute Plaintiffs using a three-drug
protocol similar to that which Virginia employs. In their
September 28, 2015 Amended Complaint filed in the Southern
District of Mississippi, Plaintiffs contend that:
there is a substantial risk that the first drug injected in a
three-drug series will not be administered correctly, will
not be sufficiently potent, pure, and rapid in onset, and is
not chemically capable of rendering the prisoner unconscious
and insensate so he does not feel the painful effects of the
second and third drugs, [therefore] the execution will cause
severe, torturous pain for the prisoner, in violation of the
Eighth and Fourteenth Amendments.
(Am. Compl. ¶ 55, ECF 2-1.) Plaintiffs assert that no
need exists to use the second and third drugs and that
"[e]xecutions may be carried out through the use of a
single-drug anesthetic-only injection, a protocol now used in
most executions nationwide and which has proven effective in
executing over one hundred (100) prisoners to date."
(Id. ¶ 66.)
do not challenge the "entirety of the lethal injection
protocol promulgated by [the Mississippi DOC]."
(Id. ¶ 6.) Instead, Plaintiffs insist they
the use of compounded drugs (including but not limited to
compounded pentobarbital) and midazolam in lethal injection
executions conducted by [the Mississippi DOC]. Further this
civil action specifically challenges the use of a three-drug
lethal injection procedure. Lastly, this civil action
challenges [the Mississippi DOC's] intent to have the raw
ingredients for pentobarbital compounded into an injectable
solution on the grounds of the ... [p]enitentiary... where
there is no pharmacy suitable for compounding sterile drugs.
(Id.) Plaintiffs contend:
there is a high risk that either: (a) the Defendants intend
to use a degraded form of compounded pentobarbital for the
execution[s] of the Plaintiffs; (b) the Defendants have
obtained only the raw ingredients for pentobarbital and
intend to compound the pentobarbital at the Mississippi State
Penitentiary [where no licensed pharmacy exists]; or (c) the
Defendants have devised some other unknown and heretofore
untested method of making pentobarbital.
(Id. ¶ 155.)
in July of 2015, the Mississippi DOC's execution protocol
changed to permit the "use of midazolam in executions by
[the Mississippi DOC] where a sufficient quantity of
pentobarbital is unavailable. Defendants have stated that
[the Mississippi DOC] is unable to obtain pentobarbital in
any form. However, other state departments of corrections
continue to obtain and utilize compounded pentobarbital in
lethal injection executions." (Id. ¶¶
185-87 (paragraph numbers omitted).) Unable to obtain
pentobarbital, the Mississippi DOC has "purchased
midazolam to be used as the first drug in the three-drug
series." (Id. ¶ 203.) Plaintiffs insist
midazolam "cannot be relied upon to render a person
anesthetized and insensate to pain."
also argue that the "Mississippi protocol does not
provide for any procedural safeguards which have been added
to the revised lethal injection protocols of other
jurisdictions in an effort to reduce the ... harm that can
result from failures in the administration of lethal
injection drugs." (Id. ¶210.)
contend there exists "a feasible alternative which could
substantially reduce the risk of severe pain and serious harm
presented by the continuous intravenous administration of
compounded pentobarbital in combination with a chemical
paralytic agent and potassium chloride." (Id.
¶ 223.) That alternative requires "[t]he use of an
FDA-approved, ultra short-acting barbiturate in a single-drug
protocol" (Id. ¶ 224.) Alternatively, if a
non-compounded, FDA approved barbiturate such as
pentobarbital is "not legally available, and only in
that event, " the use of a compounded barbiturate
"used in a single-drug anesthetic-only protocol (without
a paralytic agent or potassium chloride), is a feasible and
available alternative which would significantly reduce the
substantial risk of severe pain presented by
Mississippi's current procedure." (Id.
2. VDOC Properly Challenges Whether the Subpoena
Seeks Information that Could Support or be Relevant to any
Claim About an Alternative Method of Execution that Likely
Could Significantly Reduce a Substantial Risk of Severe
base, much of the information Plaintiffs seek from the VDOC
appears to be irrelevant to the claims they raise in
Mississippi. Such a finding would render any further
production unduly burdensome. In re Subpoenas for
Documents Issued to ThompsonMcMullan, P.C., No.
3:16-MC-1, 2016 WL 1071016, at *5 (E.D. Va. Mar. 17, 2016).
First, because Virginia's current lethal injection
protocol is similar to Mississippi's contemplated
protocol criticized by Plaintiffs, it becomes hard to fathom
how additional information from the VDOC would
support Plaintiffs' claim that Mississippi is
ignoring a "known and available alternative"
method of execution that is "significantly [likely to]
reduce a substantial risk of severe pain, "
Glossip, 135 S.Ct. at 2737 (quoting Baze,
553 U.S. at 61),  or how any additional response could be
"relevant to [that] claim, " Fed.R.Civ.P. 26(b)(1).
Both states contemplate using midazolam as the first
drug. Indeed, the VDOCs production to date
likely includes much of the relevant responsive information
Plaintiffs are due under the rules.
to the extent Plaintiffs seek information about an
alternative method, the VDOC readily provided Plaintiffs with
transcripts from evidentiary hearings in which Arnold David
Robinson, the Chief of Corrections Operations for the VDOC,
testified that the VDOC has been unable to obtain
pentobarbital in recent years. Prieto v. Clarke,
3:15CV587-HEH, ECF No. 27 (E.D. Va. 2015) and Gray v.
McAuliffe, 3:16CV982-HEH, ECF No. 30 (E.D. Va. 2016).
Those transcripts include extensive testimony from Robinson
regarding the VDOCs efforts to obtain pentobarbital,
midazolam and other lethal injection drugs. (Prieto Tr.
64-78; Gray Tr. 91-96, 98-99, 104-05.)
because VDOC has efficaciously utilized a three-drug protocol
employing compounded midazolam as the initial drug, the VDOC
would not appear to be a source of relevant information to
support Plaintiffs' claim that Mississippi's similar
proposed method of execution "presents a risk that is
sure or very likely to cause serious illness and
needless suffering, and give rise to sufficiently
imminent dangers." Glossip, 135 S.Ct.
at 2737 (internal quotation marks omitted) (quoting
Baze, 553 U.S. at 50).
three observations, the significant information the VDOC
already has provided to Plaintiffs, and the Plaintiffs'
own failure to reveal what information they have obtained in
discovery from the Mississippi DOC in the underlying
litigation, all cut against Plaintiffs' need for the
additional discovery sought from the VDOC. See Wyoming v.
U.S. Dep 't of Agric, 208 F.R.D. 449, 452 (D.D.C.
2002) (citations omitted) (explaining that in assessing undue
burden, courts consider non-party status and "the need
for discovery against the burden imposed on the person
ordered to produce documents"). Plaintiffs have been
particularly opaque as to why the VDOC, a non-party to the
underlying action, is a better source of information than the
Mississippi DOC. These circumstances taken together tend to
undercut any claim by Plaintiffs that they need the
additional discovery sought. Instead, the record indicates
that requiring the VDOC to provide additional material would
pose an undue burden. The Court will not draw such a
conclusion definitively, however, without considering the
subpoena and any response to it in detail. That evaluation
Plaintiffs* Notice of Deposition, Subpoena Duces Tecum, and
the VDOC's Response
Notice of Deposition of a Nonparty Organization (Notice Dep.
2-8, ECF 2-2) requires the VDOC to designate one or more
persons to testify as to a variety of topics, the specifics
of which are described below. See infra Parts
IV.A-IV.D. Plaintiffs also ...