it's number sixteen dish three one four nine in re ohio execution protocol litigation angela fear at all versus john casey and all argument not to exceed thirty minutes per side this burner may proceed for the please the court i am erring gallagher barnhart i represent several appellant directly and i am presenting argument here today on behalf of all the appellant's in this interlocutory appeal i reserve seven minutes for rebuttal before beginning my argument i would like to briefly summarize two very recent developments in the district court that we believe are relevant to this court's consideration in deciding this appeal first defendant's plan to execute plaintiff's phillips tibbets and o t beginning in january under a new protocol this new protocol contains the same two methods as the last protocol that are protected under the protective order at issue in this appeal but it adds in a third new method that's new to ohio this new method uses three drugs my dad's alarm a paralytic and potassium chloride and the state has obtained the drugs it needs for this method work that was approved development in the district court is that these three plaintiffs only are litigating motions for plenary injunction and stays of execution and there's been ongoing discovery disputes we indicated in a letter brief letter filing earlier this week  some of the district court record documents that we think could be relevant to this decision these include that the fenton's have moved for a protective order concerning their acquisition of the drugs for the new method in the new protocol and they've argued that this current protective order covers those drugs even though though that method was not in the part in the protocol at the time this report entered the protective order so now as far as these proceedings we are asking this court to hold that the district court abused its discretion in granting the protective order that allows the app at least to withhold relevant information that's key to several of our claims we believe the district court erred for two reasons first they pelleas did not meet their their burden hundred twenty six to present specific evidence of a particular harm that would justify the protective order and second all of the appleby's legitimate news well i don't think the decision the phillips case has a great deal of effect on this case as you know most of the merits were not reached because it was decided on standing  of what standing concerns there might be ok so the district court justified its protective order on three grounds the first were safety and security threats to the compound that could be a risk if their identities were disclosed publicly the second was to prevent the drug sourced defendants from being subject to litigation in the suit and the third ground was that the state would be unable to carry out executions if they couldn't obtain the drugs so i would like to begin by discussing the type of specific evidence that's being withheld and why the appellant's need it because i think that something in the philips argument that you know was a little more abstract but here in the context of concrete claims it's easy to see that we're talking about much more than the actual name of the supplier so there's several categories i'll start with a couple examples first some of the evidence that we need to prove our claims has to do with how the drugs are stored and handled throughout their supply chain so for  example the drugs that are used in the three drug method one drug has to be refrigerated the other one can't be refrigerated and if these drugs are transported together and stored together that's a problem amendment problem because it can change the quality of the drugs and this is kind of more relevant now than it was before because before the protective order we routinely receive this kind of information lot numbers all kinds of information about where the drugs pass through from the source and what you've received on the new protocol is just the current the names of the drugs interact we don't know anything about where the drugs are coming from we do know for instance again talking about the drugs and the new protocol the defendants are represented in these are manufactured not compounded drugs by an f b f d a approved manufacture well every f d a approved manufacturer has restricted the use of their products in executions because they don't want their drugs being used to kill people well that means than that the defendants can't be getting these drugs directly from the manufacturer they wouldn't sell it to them and different manufacturers have different ways of going about it but when they sell they might have a restricted and use contract prohibiting sale and so on so we don't know who is and how many's hands these drugs have passed through to get to the state and of course these are more irregular channels than stuff that some bought in the open marketplace in public or business there's a breach of contract  manufacturer and intervening party well the way that that becomes relevant is in our civil corruption claims they're brought under ohio's version of the federal rico statute one of the predicate acts  put in this case i don't believe so your honor is the massachusetts the new england compounding pharmacy so that was a federal prosecution as opposed to a private right of action being brought but show the laws of the us local law for civil matters that claim under the what's your best case sure there's a good case that you have on this rico new sort of use of the corrupt practices laws but as far as the authorization to do so it's abundantly clear that private right actions are provided for in those laws and as i mentioned ohio for the for the constitutional claim of cruel and unusual punishment absolutely so that's kind of another category of information that we need it some of that might come out if we find it was improperly stored or handled but also a particular when we're talking about compound of drugs making sterile injectable drugs like the ones at issue here is a very sophisticated technical process and there are many steps along the way where things can go wrong and there's really stringent standards for sterility for refrigeration for all kinds of things like that and the only information that we now can have about a co pound or it's simply that they're licensed by the state and that alone doesn't tell us anything about the kind of violations that we saw in the oklahoma pharmacy the apothecary shop that's referenced in our brief that had close to violations dealing with contamination sterility problems and these are not minor ticky tack things these are people weren't wearing gloves or you know goggles they instead of walking to the refrigeration unit where they needed to store these drugs at a specific temperature they had just a personal igloo cooler at the side of their desk where they were keeping them the through the drug or compound or not so the current protocol has just the fandoms have represented that they can't purchase those drugs f d a manufactured and so in reality it would have to be compound it now the third drugs they've as i said they've for the protected the judge frost made that clear in the order he issued in response to our motion to modify the protective order and he specifically said that one of the harms that the orders designed to protect against is that the drug source defendants would be subject to suit so i is there a concern that that isn't a sufficient i'm trying to understand exactly  he variety of claims that could be brought as a result of the secrecy statute so this is the defendants are protecting themselves or the defendant right and that's actually the only reason that we truly need to know vir identity like the name of the drug source defendant is needed so we can serve process them them and sue them and there's just one type of claim that's our civil corruption practices claims that requires that information so what is so what we all the way through the and how you understand the connector of the two the denial or the grant of a protective order to the state defendants on the basis that their drug suppliers might be subject to sued so the the connection that the district court made connection upon which the district court is will live right under that protect you know the the court isn't explicit about that and part of that might be because of the the way that the defendants framed their motion for a protective order as you know they're required to identify specific harms with particularities and in this case the defendants have it quoted here said that the harm was that the exposing the identities of the drug source defendants quote will expose them to potential harm oppression annoyance or harassment so that's what they've specifically alleged in the portion of their motion that has to deal with a protective order if i am following you this gets into the particular and specific demonstration of the kind of harms that will result and on that point i think that the recent eight circuit case that has gone through a couple  iterations both parties have supplemented through twenty eight day letters this court with information about that case i think that perfectly illustrates why the information that evidence presented here is insufficient so in that case basically the order i believe that by vacating i guess i'm not entirely positive but my understanding was that they then gave the relief that the defendants were seeking and so they have blocked the discovery and then they only block that discovery after the anonymous drug supplier intervened and proceeded under a pseudonym and then presented a declaration that specifically said the harm that was just speculative before would come about but if their identity was revealed they wouldn't produce the execution drugs the nets that's what i'm trying to understand here you do not have a drug manufacturer and say now the defendant in this case for act so rule twenty six  that you might protect a party who and there is none for you in this case from the manufacturer or person from annoyance embarrassment oppression or undue burden or expense and then it says what you can do what is it in this lawsuit that the defendant must prove i presume a bad itself since there is no drug manufacturer in this litigation yet that would enable the proof necessary to obtain a protective order so i think or what do you think they fought by proved i think they thought or that they they argued that they would not be able to carry out executions if drugs were on available and the drugs would be unavailable if the drugs or suppliers wouldn't produce them because they were fearful or or because they didn't want to be subject to suit but as your question identifies there is zero evidence to prove that and that's the difference between this case and the eighth circuit case is even when the defendants in the eighth circuit offered declarations which is more right off the bat when the defendants did hear offer declaration saying sort of general terms that well if it's revealed we won't be able to carry out executions that circuit rejected that because it was speculative it wasn't specific and as it turned out they were right to be suspicious because when the drugs are supplier finally did intervene and into their own declaration it became clear that as the eighth circuit suspected the prime and hadn't talked to the drug supplier they hadn't said that they wouldn't provide it they were just speculating and that's not enough under the federal rules to justify relief and i would submit particularly in this case where some of the relief that has been granted by the district court and upheld by this court was on the basis of things that the defendants weren't doing what they said they would do so they said trust us we're following the protocol will do this and time and time again they didn't and so particular here there's precedent that it's not enough to accept the defendant saying it's it's fine believe us  and it goes beyond simply you know whether they've introduced you know that evidence like for instance there's thirty three now three methods and there are protocols there are two before even if the defendants had offered evidence from a single supplier because of the discovery block we have no idea how many suppliers they talk to whether the reason the suppliers don't want to supply drugs is simply because the defendant i haven't offered to pay enough for them or because they're not going to do it at any cost because it violates their morals the ethical rules of their profession there's a lot of reasons why the supplier might be in that sabean's supplying drugs and the defendants haven't offered the evidence to show that it is the reason that they've argue before the new drug protocol when they were exploring or talking to people it's pretty that we are the negotiation about that is pending right now before judge murders and the district court and we've designated the exactly exactly he said he wouldn't think going to give them carte blanche to do it ever they want he's balancing the need for the plaintiffs to know what the defendants are doing even if they can't get the specific information just know what's going on with that and so he made crystal clear the moment they pursued drugs that are outside the protocol they're acting outside of the protection and so we don't believe that the protocol i'm sorry that the current protective order should block information about these new drugs but the defendants are using it for that right now and so we're waiting to see how that litigation turns out in the district court because i don't think the timing of it affects the greatly i mean we're less than two months away from phillips execution and pending in the district court proceedings were stated that they were not under obligations to supplement their discovery and so they've provided a few a handful of productions but they have simply stated that they've withheld the so far seventy pages of documents that's it they haven't provided a privilege log we don't know if there's other things that might be relevant that they're not including in that you know the type of permission was previously provided to the drug protocol itself so the protocol is publicly filed so that it's available but the type of information that was previously provided about exactly and that's more than just the drugs this this protective order is so broad it covers execution team members and previously i think i have an example of that here the district court ruled that in from for instance there was a team member who was undergoing a health condition and because of treatment and medications and other things that is a court ruled that could be relevant to his ability to keep fit fulfill his role under the protocol and conform to it and we deserve discovered that well the defendants haven't provided any update that initial disclosure about the team member either and so it's not just about the drugs it's about so many entities and people that are involved in the execution process there's all part of this  well that's that's part of this appeal because it is it goes to the scope of the protective order itself and i guess you know in the district court there's kind of two actions one more  even under the current protective order and then second we're saying you so that's kind of ongoing discovery that we had requested long ago and routinely have been given but we haven't gotten in about a year then we are also saying we need discovery about the new drugs that you have recently acquired they're refusing to provide that as well one pointing to the current protective order and then alternatively moving for a new protective order to cover that if if the if the current protective order does that  if i could i guess talk a little bit more about some of the other information one thing i want to point out as well and i i'm just going to be very careful because it involves pleadings that have been filed under seal in the district court and we've noted those on our designation so i not going to speak to the substance of that but claims raised in those sealed supplements to the complaints also involved evidence that is for heavy did from being disclosed under the protective order and we would be happy to file a brief letter brief laying that out in more detail if the court wishes i just obvious they can't speak about it in open court you know what those claims are that are being raised but there's evidence that would be directly relevant to that that is blocked by the protective order as well so that's another example of things that we can't get and then the other category that has been very important in the past for instance in the smith and the the rain cases are documents that are generated during an execution now those don't exist yet because there hasn't been an execution and so we don't know but the defendants have not assured anybody that you're going to get all of that stuff that you got to get word to jim because i thought maybe you muted your line to you had a question and i couldn't tell whether you're trying to ask a question or you're just talking to the other person in your room so we can hear you now i'm not sure we can hear you and when the queen and the plaintiffs were terms if you would like to add in you hear other questions we will extend the time as needed if dixie if you would be sure to watch the monitor and interrupt us court abused its discretion and issuing a protective order which essentially keeps from disclosure in discovery information which would lead to the identities of the sources of ohio's interest in developing their claims really was not materially affected the prisoners was they they had the opportunity to litigate their claims and as a result that's a very important consideration in terms of balancing the interests here in the lawsuit versus gross the supreme court the united states recently affirmed that ability to block these plans from getting the information they are seeking and this discovery or yes well give me your best argument  argument is this state's interest here can be really seen in one incontrovertibly fact as the supreme court recognized the availability of execution drugs is an obstacle which has significantly a significantly impact on the state sovereign ability to carry out its criminal judgments i thought that there was a good bit discovery that hides people who choose to sell it to the state when the state has its own haven't you of supplying and creating the drugs itself you are numerous courts have recognized that the threat of public disclosure to the sort the sources of state the state's execution and drugs prevents those states from obtaining the drugs from attaining the drugs  manufacturer but how does that have anything to do with their ability if they're not satisfied with the availability in the open marketplace how does that have anything to do with their ability to manufacture their own drugs you honor i suppose that's theoretically possible but as far as i know no state has ever resorted to that particular alternative and no court has ever held nor the supreme there were years in which drug manufacturers were willing to manufacture these drugs and sell them for the purposes of execution but as a result of either changing standards of of human thought in our nation or or other as a result of the pressure of making public what what the drug manufacturers are selling those individuals in those companies have chosen to no longer supply those drugs in that context i'm at a loss to understand how what you're saying the protective order can do is to say even though you could make your own drugs because public opinion now suggest that manufacturers no longer want to sell them to you or we can enter a protective order that will that will say you don't have to make your own drugs we will hide the names of the drug manufacturers even though those manufacturers have stated that they don't want to sell their drugs for execution you say this that virtually every conceivable argument has been advanced against the states execution methods and the drugs that have been used in the  past i can imagine it would be your very foreseeable that if the state engaged in the straw ordinary extraordinary process of manufacturing or producing its own execution drugs that would generate an incredible amount of litigation and time and complaint that in itself a deterrent here your honor we i think i must go back this is not this is not a new question this question has been faced by many many courts and those courts have virtually universally balanced the interests in favor of the state those courts recognize as the supreme court of the united states recognized that the states have a legitimate interest in carrying out capital punishment and through obstacles and that's a word that the supreme court the united states used obstacle beyond the states control the states have been in pieces and in carrying out that interest and the state's interests outweighs the interests in prisoners who challenge the state's method of execution whether petitioner here suggested that that the state standing in for the drug manufacturers and they ought to p this is a catch twenty two situation which the district court addressed the state's interest paramount interest here is getting the drugs the state can't do that if if the sources will not cooperate now suppose that the state said oh we need someone to testify to come into court to testify that oh yes i'm afraid well that's the money offered behind  screen they're not not that has been with respect to execution team members but those are still like this in execution cases confidentiality has been protected by testimony behind a screen i honor there's a difference between a person who is a member of the execution team and or who has volunteered to participate in this very very difficult task as opposed to a commercial business person who's concerned about his reputation his business and the of the idea of being your honor is by asking the person if they would be willing to testify the result could very well be there's a lawsuit i've got to testify no way i'm cooperating and that recent case is a very good example not counsel said look this is a case where they receive protection because the manufacturer intervened in think case and said they needed the protection well if you look at that case very carefully that was a mandamus case and the panel initially said that due to the high burden of mandamus that more was needed that's when enough they also noted that the state in that case didn't ask for a protective order initially so what by the time it got on appeal you were looking at mandamus standard which is much higher now is true what the manufacturer did come in intervene anonymously and did say that but the question is do you think the state what was the reason for that why would the state do that well i would submit the state was reluctant to go to that person that manufacture or that supplier going to work that source because that in and of itself could have resulted yes  purely whatever runner ups the bush states the state's written execution protocol specifically provides for testing mandatory testing for compound  honor i would of course the written directive provides for the the state doing the testing but that's a matter your honor that the protective order doesn't address and conceivably that could be that that's not that is not drugs has not been eliminated by the protective this protective what this protective order does is that it protects information which could lead to the identification of the sources of the drugs now what that information is it that's a question for the district court in applying the protective order here the question presented here really comes down to this is this is are going to be in order to apply because if there's no protective order then there's nothing for the district court to apply the district court still retains the discretion to utilize that order and to make appropriate and keep it within a limited scope in this case i have to say this in this case it's a fact it's been over three years since ohio has conducted an execution principally because of the difficulties of getting execution drugs in this case so much information has been provided as to how drugs are administered and in two thousand and nine in this case the question the question is what happens going forward we understand that there was a great deal of information that's provided in the past but the position that the state takes now and may take under the protective order is that that information is no longer going to be supplied and the question before us is did the protective order was it properly issued was it an abuse of discretion and that's why we're talking about the other circuit cases and district cases and  looking at the district court's order itself where it says it found your assertions of burdens are prejudiced to be largely speculative or conclusory if not outright hyper did that based on your experts extrapolating the risk by looking at best surfing the internet about abortion in animal rights in the morning after pill and and in light of his testimony that he was unaware of any known threat in ohio to implementing the death penalty so the question that's before us does that meet the requirements of rule twenty six c and the burden that is on you to provide particular and specific evidence that is supportive of the burden that you bayer in this litigation will say three things your honor first  district court also noted other evidence presented by the state and the district court didn't know the incident where a compound in pharmacist received an e mail which essentially that that's correct but but your honor the second thing is is that as a district court recognized again if we look if we go back and we look at what was the evidence presented in other proceedings what the district court recognized here was the state's primary interest is people at getting execution drugs fit from sources that may feel threatened may feel  intimidated may not cooperate and that and that is something that the state so in other words when you're talking about what's that what evidence is necessary to show that the state's interest is being armed well this is not a case  the state is protecting a witness and wants a particular security for someone this is a state case where the state's primary interest is derivative or affected by what other people perceive and when it again i would note that the availability of execution drugs has been an obstacle and that obstacle has in part been because drug sources do not wish to because you conclude they fear it your opponents may conclude that they have just decided that that's an improper hues of a product that they create and they do not want to be involved in the execution without the hard evidence in ohio that it's because there they would sell it to you but they're afraid verses your opponents argument that no they don't want to sell it to you because they want to be out of the death business honor again the most compelling circumstance here is is the fact incontrovertibly fact that ohio's executions have been delayed for almost three years because of the situation the statement when the state was confronted with this situation the state determined that it was going to be necessary unfortunately to delay executions because of this problem the state recognized it right away and i as i want to say this well your honour's that this is something that the state has always been if you will up front on an informative to the district court in two thousand in going back to two thousand and nine two thousand when two thousand and ten when this problem first surfaced the state was very up front with judge for us to saying that this could be a problem as a matter of fact one of the reasons one of the things that was done in this case was the state agreed to give prisoners thirty days notice at least when the state changed its execution protocol to allow for them to have notice as to what as to what if the state changed to drugs what those drugs would be your conduct of executions but rather the rather limited issue of the protective order secondly i can only point to just one of the most recent decisions of judge frost where after a very thorough injunction motion he essentially said that the state's safeguards it had they had put in place has been remarkable and the state has conformed very well with its execution execution not not change the facts that are before this case your honor there has been no there has been no hearing there's been no judicial proceeding on that execution it is a matter of debate as to as the as to what happened in that execution the one thing we can say is not a matter of debate and that is the the care with which ohio and i was execution personnel the department of  rehabilitation correction has taken and these cases it's a matter of fact your honor i don't i don't think anybody fears that ohio is trying to do botched executions no one  titles difficulties that that we see in the executions that have occurred of light perhaps the perhaps we could move on i'm also concerned about this risk of litigation that we had discussed with your opposing counsel that and i would like your take on what is the risk of litigation that under the decision to grant this protective order the district court properly recognized that one of the concerns that potential execution sources have is they will be sued that they will be embroiled in litigation now from the states again as i was talking about before your honor the state's interest is derivative but the reason why that matters to the state is not the state wants to make sure people don't get sued what matters to the state is the fear of suit by those sources will prevent them from assisting the state with carrying out executions and so that is a real that is a real threat as a matter o of the courts one of the cases that we cited in our brief in which there was it was it was held that the identities could be protect cited that very fact they said the minute that there was a source found out he was going to be named as  as a as a defendant in a lawsuit if i was it he said i'm not doing this i'm not going to get involved so help me understand we all agree that state privileges are not federal prison which is correct i think you raise no objection to granting a federal rule twenty six protective order if a state privilege is all it is a very low ball to foreclose information in this way isn't the federal government be and functionally granting to any state privilege law the ability to foreclose discovery in the different litigation before a federal sovereign yeah right like to make clear that a judge frost did not judge frost did not adopt ohio's recent statute as as a privilege which he applied he explicitly did not do that what he did do reasonably was yonder stood the considerations which led to the the passage of that statute and he considered those order clearly say that it is the secrecy statute that and the protections from that that under law his protective order what it i believe it says your honor is that the concerns which  led the ohio legislature to conclude that this type of confidentiality was necessary informed his decision as to whether a protective order should issue but again he made a very explicit and  there was that it was sufficient evidence presented and he also by the same token he examined the other side of the scale and he also said that the interests that the plaintiffs they had not shown any real interest compelling or any kind of substantial interest in meeting this information a good example is this he dismissed out of hand he dismissed out of hand the plaintiffs citation to their claims that they needed to know the identities of the drug sources to see if they could were complying with federal drug laws that was completely his dismissal out of hand was completely consistent with the law this court held in the door vs strickland case affirmed the dismissal of of a prisoner's claim that ohio was violating federal drug laws judge frost held that there was no private right of action in those in those cases and this court upheld that decision in his balancing of the burden hasn't judge from last year or two orders that in this situation but we understand the burden that occurs on the plaintiff's post it is easy is in order to prove that this is cruel and inhuman punishment must provide this information to the court and wasn't judge frost to see it and that which is necessary convincing argument that knowing the identity of the state's drug sources was necessary to prove their claims and if you come down to this your honor is that there is nothing in this order if the district judge finds it appropriate there's nothing in his order to doesn't prevents testing conceptually testing could be done without revealing the identity of the source the bottom line is that how how in the world can you say that knowing the identity the actual name of the manufacturer or supplier or distributor or compound or factors in to approve a need to prove a violation of the eighth amendment that that is what des the private right of action is specifically limited to damages to business and property there's no allegations of damage to business or property it's even conceivable here this court has held that and in a fairly recent case this court held that the rico statute civil remedy is held to that the these these prisoners do not fit within the zone of interest that that statute was designed to protect it's even debatable it's a matter it's an open question whether you can addressed in the context of of another suit what the reach of the civil rico statute is and the court noted that it's a limited to it showed in this particular case about the ruling of the district court is there a particular case or i would have to say this the most compelling case is the landrigan case and in that case the super the district court issued a stay of execution because arizona would not give specific drug information in it to a prisoner in the lawsuit that was affirmed on appeal the supreme court vacated that stay of execution saying that because it was totally speculative it was the prisoner who was speculating as to what the importance of the identity was they vacated the stay again that's a compelling case because in essence the supreme court said not hstanding the the the issuance of state by district judge in essence the supreme court said the state's interest in carrying out this execution was was was over was overwhelming and was determinative and that th a very powerful case i think it does reflect many other cases we cited in our brief where this is not an unusual circumstance many many cases of issued protective orders on that for that very reason based on evidence that is as least is not perhaps even as compelling as the evidence that was before the district court here those cases show that by and large the courts have balanced the interest in favor of the state and most importantly they recognize that this is not necessary to prove the prisoner's claims if that's true in some cases where there are even some cases your honour's where the states have not given any details on their execution protocol here defendants have given so much information in the way of much was made of the recent use of three drugs which in which judge frost then found that constitutional standards much has changed since then but what most of that has been additional safeguards put in place to  guard the guard the rights of the prisoners additional safety you have any further questions interrupt just for a moment just north can you hear me ok i can lance's notice and i do believe this is correct whenever we're speaking into any of our microphones it is muting judge nor is the system for some reason so as we haven't gotten to that point yet your honor we just you know it's been just a little more than a month since the new protocol was issued and so we filed amended complaints and t r o motions and then we're about to do discovery so i think very well particularly because we believe that the testing that the defendants propose is in adequate are reply brief had an example of boiled don't you just go do work together test or so or so i'm not sure that we won't ask for that at the appropriate time but second here's how the testing works you can't just submit an unknown substance and say test it and give us a green light on it you have to know what you're looking for so we certainly know we could ask for endo toxin and x the toxin testing ph balance things that could be problematic that the state's testing wouldn't account for but as far as contaminants i mean it would be the universe of things that could be contaminants that would have to be in the testing protocol which is infeasible now if we knew that the the compound or the manufacturer was also making some other substance that could be toxic we could design a testing protocol to detect that substance but the defendants refused to provide that kind of information under the evidence that could reasonably lead to the identification because they say well we could deduce who the compound r s are if we know enough about their other activities so at this point we don't have the information necessary to design meaningful testing although there is as i said definitely testing that could be accomplished and i suspect we will be requesting that i must not have communicated properly it's not a stalling technique if we had the information the testing could be accomplished without any delay with the protective order in place we can't get the information we need to do complete meaningful testing you don't have access to these drugs correct oh absolutely not there in the states possession right you know order to do any of the testing even with limited test you're going to have to petition these are the can't even the state unless the state agrees or asked the court to order it that's correct and the testing we asked for before and mcguire would have been after the execution to test the basically the residue that was left of the drugs but you're right that strength that's an entire another jurisdiction whole unpractical hurdle that we would have to overcome the jurors to do have another question  about let's talk about immunizing parties from suit and then generally the burden under rule twenty six so first philips was about a constitutional right to access information and the  majority rejected at least a component of that claim here we're talking about the right to discover relevant information i mean relevancy as this court knows is such a low bar compared to something that you're constitutionally entitled to so that's why i say phillips doesn't impact you know philip doesn't decide whether this information should be disclosed in discovery don't have standing in the case or do you have standing y there's just your state claims at this point no your honor the standing as i understand it simply had to do with raising the first amendment claim and we don't have a first minute claim about this and that was challenging the statute itself we're talking about a protective order going to the discovery of evidence relevant to our substantive clean's attacking the state's execution of claimants were the men and we have quite a few we have eighth amendment equal protection claims as i mentioned the ohio corrupt practices claims which just to clarify the restrictions counsel was talking about with federal rico are irrelevant to the ohio corrupt practices act so you know the lack of business and property interest that there's precedent for withholding this information are not on point those cases were either vacating stays of execution which again was based on the lack of a constitutional right to this information not the discovery right or they involve cases where claims are being dismissed for other reasons like a failure to state a claim twelve b six reasons or failure to allege a proper alternative so nothing to do with with the information and then one of the cases they cite which is the south dakota  case versus weber that actually grant what we want here restricted discovery and it's not the only case that does that we've cited chester vs beard recently in florida the case is one of the would vs rank cases that actually caption first amendment coalition this was just at the end of october the case number there is sixteen dash and see dash twenty five restricted discovery was was granted so those are just in the lethal injection contest contacts the coons versus allentown case that we said in our brief from pennsylvania involves abortion clinics with much more substantial harms being alleged on a controversial issue and in that case the court decided most of the information should be publicly disclosed but some sensitive information about you know paying to i'm sorry about patients confidentiality or security things could be disclosed attorney's eyes only and that's what we want to hear and that relates to you know counsel talked about the oklahoma e mail that the f rejected as any credible threat and that the state's own expert said even with that evidence all of the concerns would be allayed by attorneys and only disclosure there is just simply no evidence at all to justify denying that kind of limited disclosure where we are we are a federal case with two sets of litigants and we are under rule twenty six  for the federal rules of civil procedure and our question is has the state offered has the state established and carried its burden of proof as required by rule twenty six in order to attain this protective order i believe your position is they have not they have not and look at counsel's own words he said oh there may be problems or he said her time what he said i think it's  i think it could very well be that if they went to the supplier and said we need to do a declaration it would scare them off that alone tells you that it's speculative it's generalized it's not sufficient under rule twenty six and as far as the idea of immunizing a party from suit we're not aware of any authority that allows that the council mentioned i think i think it was referring to the sink versus one party case that in dicta kind of mentioned that but i haven't found a single case that says yes it's legitimate to basically use a motion for a protective order as a dispositive motion in disguise because that's what happens when you allow a party to immunized from suit the claim it gets dismissed because we can't prosecute it so that's not a proper use for a protective order and finally as far as just generally balancing things under rule twenty six a lot of a counsel said is not appropriate to consider here like the boches it absolutely is because it's a balancing test and our need to get this information is informed by the reality that ohio and many other states have a long history of botched executions i i refer the court to justice french on the house supreme court's dissent in broome or earlier this year where she lays out ohio's history that's a fifty one and a three d six twenty and going back to the burden you know just say that it's clear ohio can't get these drugs the house has to prove it other states are getting drugs in georgia executed someone this week texas is executing people florida was before they stopped because of hearst issues so executions are being carried on by other states and there's just zero proof that the state can't get the drugs like other states are able to get it  protocol and i'm just i believe texas has the i think but i'm i don't want to say for sure about those facts so yes the same protocols that ohio has are being represented in different states that are that are executing or getting these drugs to do don't know where there's a civil case in those places so murder you're right i'm sorry you don't know that there's a case in those murders of this one against the state of iowa i guess simply sort of expanded their definition of execution team members to include the compound or so that there are a lot of different variations there so at the beginning i said there were three bases for the district court's order the first would be the threat we've already discussed that's completely taken care of by attorneys eyes only the second the suit we've talked about how that's not a legitimate reason and then finally the state can't carry out executions and as we've discussed there's no evidence of that and i'd just like to conclude by saying you know we know executions are constitutional we're not disputing that here but as judge frost said in the smith decision he said that it's wholly lawful to execute capital inmates but it's wholly unlawful to even attempt to do so in a manner that violates the constitution and that's what the claims that the plaintiffs have here that are legitimate claims that have not been dismissed out of the law suit are attempting to do it the right to this information is so clear in civil discovery and the only way to not give us the information is for the state to meet their burden under rule twenty six and they simply haven't done that so for these reasons we ask that the court vacate the protective order or at a minimum remand with instructions that attorneys eyes only discovery be provided so that the interest can be properly balanced in this case thank you you thank both of you will be appreciate your argument and your work you written documents we will take this under advisement and try to move quickly because we understand that there is a short order here