Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGehee v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

March 15, 2019

JASON MCGEHEE, STACEY JOHNSON, BRUCE WARD, TERRICK NOONER, and DON DAVIS, Plaintiffs,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge.

         This matter is before the Court on the Plaintiff's Motion to Compel, ECF No. 1, and the Supplemental Index of Evidence, ECF No. 31, submitted by Defendant Nebraska Department of Correctional Services (“NDCS”) in opposition to the Motion to Compel. For the reasons stated below, Plaintiffs' subpoena requests will be modified under Fed.R.Civ.P. 45(d) and the Motion to Compel will be granted, in part.

         BACKGROUND

         The factual and procedural background of this case is detailed in the Court's Memorandum and Order dated January 17, 2019, ECF No. 27, which is incorporated herein by reference. In response to the Court's prior Memorandum and Order, NDCS submitted the Declaration of the President of Pharmacy N (the “Declaration”), ECF No. 31-1. The Declaration is nearly identical to the stricken Declaration of Pharmacy N, ECF No. 14-2, except that it is made by Pharmacy N's president who, as acknowledged in the Declaration, could be held criminally responsible for making false statements.

         Plaintiffs submitted a Supplemental Index of Evidence, ECF No. 28-1, containing communications between the parties regarding the scope of Plaintiffs' request for production of documents. Plaintiffs offered to narrow the scope of the subpoena to the following:

         Information responsive to the following requests, with pharmacy identities and any other identifying information redacted:

1. Communications and documents exchanged between NDCS and Pharmacy N regarding Pharmacy N's decision to supply fentanyl to Nebraska for use in executions;
2. Communications and documents regarding how NDCS was able to identify Pharmacy N and convince Pharmacy N to supply fentanyl to Nebraska for use in executions; and
3. Communications and documents exchanged between NDCS and suppliers other than Pharmacy N, between January 1, 2017, and the present, regarding NDCS's attempts to convince other suppliers to supply fentanyl to Nebraska for use in executions.

         Ex. 19 at 2-3, ECF No. 28-1. NDCS denied the request, explaining that it wanted to ensure that the Court addressed its Eleventh Amendment arguments. Id. at 2. In its sur-reply, NDCS requested that the Court address its jurisdictional challenge.

         DISCUSSION

         I. Sufficiency of the Declaration

         In the Court's prior Memorandum and Order, the Court held that the Declaration of Pharmacy N did not comply with the federal unsworn declaration statute. The statute states that where any matter is required to be “proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same, ” such matter may be supported by an unsworn declaration if the declaration is “in writing of such person which is subscribed by him, as true under penalty of perjury[.]” 28 U.S.C. § 1746. The Declaration of Pharmacy N was deficient because it lacked “any record whatsoever of a witness's identity or their signature, [and the] declarant cannot be held to their statements under ‘penalty of perjury.'” See Doe v. Los Angeles Unified Sch. Dist., No. 2:16-CV-305, 2017 WL 797152, at *9 (C.D. Cal. Feb. 27, 2017).

         The Declaration of the President of Pharmacy N satisfies § 1746 for purposes of this action. The Declaration is made by a readily identifiable person, the President of Pharmacy N, who, according to the Declaration, has executive authority over Pharmacy N and direct knowledge of its business decisions. Id. at 1. The Declaration acknowledges that the President of Pharmacy N could be held criminally responsible if any statements are false. Id. The Declaration explains that the President of Pharmacy N used a pseudonym because using the President's actual name would reveal the identity of Pharmacy N. Id. at 1-2. Based on these assertions, the Court is satisfied that the Declaration meets the requirements of § 1746. See Springer v. I.R.S., No. S-97-0092 WBS GGH, 1997 WL 732526, at *5 (E.D. Cal. Sept. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.