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In re Virginia Department of Corrections

United States District Court, E.D. Virginia, Richmond Division

November 10, 2017

IN RE VIRGINIA DEPARTMENT OF CORRECTIONS Petitioner,
v.
RICHARD JORDAN and RICKY CHASE, et ah Respondents.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE .

         This 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.).[1] 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.

         I. Pertinent Procedural Background

         Mississippi 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[2] asserting that execution under the above protocol violates the Eighth Amendment.[3] "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.)

         The 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.[4] 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 method-of-execution protocol.

A. Two Courts Have Quashed Subpoenas from Plaintiffs When Plaintiffs Sought Materials from Single-Drug Protocol States

         Prior to this motion, Plaintiffs sought information from two other states in addition to Mississippi itself.[5] 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.

         In 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)).

         Second, 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).[6]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.[7] Id. at 4.

         The 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

         After 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 team.

(Mem. Supp. Mot. Quash 18, ECF No. 2.)

         Plaintiffs assert that the VDOC's arguments lack merit. Plaintiffs, however, fail to direct the Court to any decision from any federal court of appeals[8] 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).[9] 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 disclosed.[10]

         II. Relevant Legal Principles Regarding the Motion to Quash

         A. Federal Rules of Civil Procedure 26 and 45

         The 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).[11] 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." Fed.R.Civ.P. 45(a)(1)(A)(iii).

         Rule 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).

         "A 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).

         Rule 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 discovery.

In re Subpoenas for Documents Issued to Thompson McMullan, P. C, 2016 WL 1071016, at *5.

         In 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 burden
[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).

         Critically, 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).

         B. Eighth Amendment Principles in Method of Execution Claims

         In the 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, "[12] 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).

         Despite 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).[13] 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).

         To 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.

         III. Factual and Procedural Principles Regarding the Motion to Quash

         A. Lethal Injection in Virginia

         "As 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.

         Earlier 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 (citation omitted).[14]

         Ultimately, 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.

         The 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.

         In 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.)[15]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 chemicals:[16]

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 [17]
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.

         Plaintiffs' 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").

         B. Plaintiffs' Amended Complaint as It Pertains to the VDOC

         1. Mississippi's Three-Drug Protocol Is Similar to that Used by Virginia

         The 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.)

         Plaintiffs do not challenge the "entirety of the lethal injection protocol promulgated by [the Mississippi DOC]." (Id. ¶ 6.) Instead, Plaintiffs insist they challenge only:

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.)

         Furthermore, 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." (M¶201.)[18]

         Plaintiffs 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.)

         Plaintiffs 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. ¶ 226.)

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 Pain

         At 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), [19] 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.[20] Indeed, the VDOCs production to date likely includes much of the relevant responsive information Plaintiffs are due under the rules.

         Second, 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.)

         Third, 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).

         These 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 follows.

         IV. Plaintiffs* Notice of Deposition, Subpoena Duces Tecum, and the VDOC's Response

         Plaintiffs' 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 ...


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