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McGehee v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

January 17, 2019



          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on the Plaintiffs' Motion to Compel Compliance with Subpoena, ECF No. 1, and Motion to Strike Index, ECF No. 17. Also before the Court are the Motion to Dismiss, ECF No. 13, and Motion for Hearing, ECF No. 24, filed by Defendant Nebraska Department of Correctional Services (“NDCS”). The Court has considered the records and evidence and concludes that a hearing is not necessary for disposition of these motions. For the reasons stated below, NDCS's Motion to Dismiss and Motion for hearing will be denied without prejudice to reassertion. Plaintiffs' Motion to Strike will be provisionally granted, consistent with this Memorandum and Order.


         On February 27, 2017, Governor Asa Hutchinson of Arkansas scheduled executions for eight inmates to occur in April 2017. McGehee v. Hutchinson, 854 F.3d 488, 491 (8th Cir.), cert. denied, 137 S.Ct. 1275 (2017). Shortly before the scheduled executions, nine prisoners, including Plaintiffs in this case, filed suit under 42 U.S.C. § 1983 alleging that Arkansas's method of execution violated the Eighth and Fourteenth Amendments to the United States Constitution. Id. The U.S. District Court for the Eastern District of Arkansas preliminarily enjoined the executions. Id. at 494. The Eighth Circuit vacated the preliminary injunction, holding that “we cannot agree with the district court that the prisoners have demonstrated a significant possibility of establishing a known and available alternative that would significantly reduce a substantial risk of severe pain.” Id. at 493. Relevant to this case, the Eighth Circuit reasoned that “[t]he possibility that Arkansas could acquire pentobarbital for use in executions is too speculative to justify stays of execution.” Id. After remand, Plaintiffs filed an amended complaint asserting that “[m]ultiple alternative execution methods are feasible, readily available, and would significantly reduce Plaintiffs' suffering.” McGehee v. Hutchinson, 4:17-cv-179, ECF No. 117 at 11 (E.D. Ark. June 21, 2018).

         Arkansas proposes to execute Plaintiffs[1] Stacey Johnson, Bruce Ward, Terrick Nooner, and Don Davis by the serial intravenous injection of three drugs: (1) midazolam, (2) vecuronium bromide, and (3) potassium chloride. To prevail in their Eighth Amendment challenge, Plaintiffs are required to establish the existence of a “known and available alternative” to midazolam. Glossip v. Gross, 135 S.Ct. 2726, 2737-38 (2015); Johnson v. Precythe, 901 F.3d 973, 977-78 (8th Cir. 2018). To meet their burdens, Plaintiffs served subpoenas on the correctional departments of several states, including NDCS. ECF No. 4-1, seeking information about lethal injection substances in those states' execution protocols and the suppliers of such substances. In addition to NDCS, Plaintiffs served subpoenas on departments of corrections in Texas, Missouri, and Florida.

         The subpoena directed to NDCS seeks information regarding fentanyl, which was used in the August 14, 2018, execution of Carey Dean Moore, see ECF No. 4-7 at 1, and was planned for use in the execution of Jose Sandoval, see ECF No. 4-5 at 1. Plaintiffs contend that the protocol currently administered by the State of Nebraska-a four-drug cocktail including fentanyl, instead of a three-drug cocktail including midazolam-is a potential alternative to the Arkansas method of execution, and Plaintiffs seek additional discovery on its availability. To establish that fentanyl is available to Arkansas for use in its execution protocol, Plaintiffs have sought discovery from NDCS relating to its knowledge of, and communications with, any supplier of fentanyl.

         Plaintiffs' subpoena requests that NDCS produce documents related, in part, to when, how, and from whom Nebraska has secured or tried to secure lethal injection drugs, including fentanyl. ECF No. 4-1. During the meet-and-confer process Plaintiffs agreed to narrow the scope of the subpoena. The two requests for which Plaintiffs seek an Order from this Court are Document Requests Nos. 1 and 4:

1. All Documents, Communications, and Things arising from or related in any way to Nebraska's efforts to obtain fetanyl for use in Executions in Nebraska, including but not limited to information about Nebraska's current supply of fetanyl, when Nebraska expects to obtain additional fetanyl, and the source(s) of fetanyl.
4. All Documents, Communications, and Things Related to any Supplier of fetanyl, including but not limited to Communications Related to the availability of fetanyl for use in Executions; Documents, Communications, or Things identifying Suppliers of fetanyl; Documents, Communications, or Things Related to any Supplier's present, past, or future willingness to supply fetanyl to any State for use in any Execution.

         ECF No. 4-1 at 5, 7.

         NDCS objects to the subpoena on three grounds: (i) that the United States District Court for the Eastern District of Arkansas does not have Article III jurisdiction to issue the subpoena, as Nebraska “is shielded from any obligation to comply with the subpoena pursuant to the Eleventh Amendment and the State's underlying sovereign immunity;” (ii) that Plaintiffs' subpoena seeks information that is “fundamentally irrelevant to any issue in the underlying litigation;” and (iii) that the subpeona subjects the NDCS to an undue burden by requesting documents confidential under Nebraska law, including “lethal substance provider(s) for noticed executions” and would disrupt the NDCS's “ability to obtain fentanyl and other lethal injection substances from existing supplier(s).” ECF No. 4-2 at 1-2.

         The parties represent that they have attempted to confer and narrow the scope of Plaintiffs' requests to avoid litigation. On June 22, 2018, Plaintiffs sent an email to NDCS offering to narrow the scope of Plaintiffs' requests. ECF No. 4-3. Specifically, Plaintiffs agreed to seek information responsive only to the two requests described above. Plaintiffs acknowledge that both of their narrowed requests are focused on identifying suppliers of fentanyl. Pl. Br. at 4, ECF No. 2. Plaintiffs also renewed their previous offer to enter into a supplemental protective order to ensure all information is adequately protected. ECF No. 4-3.

         Based on its objections, NDCS has not provided any information responsive to Plaintiffs' requests, nor has it provided a privilege log or other information about the documents withheld. Plaintiffs now move this Court under Fed.R.Civ.P. 45 to compel NDCS to comply with Plaintiffs' narrowed requests for information and documents.


         “[T]he scope of discovery under a subpoena is the same as the scope of discovery under Rules 26(b) and 34 and is subject to the rules that apply to other methods of discovery.” Quiles v. Union Pac. R.R. Co., No. 8:16CV330, 2018 WL 737403, at *1 (D. Neb. Feb. 6, 2018) (quoting Desert Orchid Partners, LLC v. Transaction System Architects, Inc., 237 F.R.D. 215, 217 (D. Neb. 2006)). 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); see also Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (“discovery may not be had on matters irrelevant to the subject matter involved in the pending action”). When a party issuing a subpoena makes a threshold showing that the discovery sought is relevant, a person or company resisting the subpoena bears the burden of showing that its objections are valid by providing specific explanations or factual support as to how the requested information is improper. See Kinzer v. Remington Arms Co., No. 8:11-cv-75, 2011 WL 1659883, at *3 (D. Neb. May 3, 2011) (denying third-party motion to quash subpoena).

         A subpoena will be quashed only “if the subpoena requires the disclosure of privileged matters or subjects a person to undue burden.” Juarez v. Walker Mfg. Co., No. 8:17CV497, 2018 WL 1955117, at *2 (D. Neb. Apr. 17, 2018). Rule 45(d)(1) requires that a party seeking discovery through 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). Rule 45(d)(3)(A)(iv) likewise prohibits the discovery of information “where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.” In re Missouri Dep't of Corr. (MDOC II), 839 F.3d 732, 736 (8th Cir. 2016).


         The principal argument before the Court is whether the identity of NDCS's fentanyl supplier is relevant to Plaintiffs' case pending in the Eastern District of Arkansas. NDCS argues that the most basic reason to overrule and dismiss Plaintiffs' motion to compel is that NDCS's supplier is out of the lethal injection substance business entirely and will not make future sales of such substances to any state correctional department for use in executions, including NDCS. Thus, according to NDCS, the information sought from NDCS is not relevant to the Plaintiffs' Arkansas litigation. Because this issue is central to each of the motions pending, the Court will first address whether the information is relevant. The Court will then address Plaintiffs' Motion to Strike and NDCS's Motion to Dismiss.[2]

         I. Relevance ...

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