craig please the court we are here to enforce a third party subpoena that was issued pursuant to a federal civil rights action in the southern district of mississippi between our clients who are to death sentenced prisoners in mississippi and officials of the mississippi department of corrections challenging their method of execution in that state we subpoenaed the department of corrections in virginia to provide documents and deposition testimony relevant to our position in mississippi the department of corrections responded and produced some the time that i have obviously that the briefs will include more and i'm here to answer any of the court's questions but the three points that i most want to cover that demonstrate the district court's abuse of discretion and granting the motion to quash the first is the virginia department of corrections purchase of pentobarbital from texas in two thousand and fifteen the second is the denial of testimony by thirty six deposition five fishelson of the department regarding the documents already produced by the department and then third documents related to the five you quite a bit of stuff  they gave they gave a fair amount of material that's correct should judge a g but they did not give material related to the purchase of lethal injection drugs and that included the transaction between texas and virginia in two thousand and fifteen they did not provide documents related to the five virginia executions which is listed  those documents are listed in our anwar of powers are relevant to what you want to show in mississippi yes your honor in terms of the first the first level of documents the one of the main issues in the mississippi genya relative to that that transaction that transaction is directly relevant to our claim that pena barba tall is available because texas still has has continuously been able to receive and to compound pentobarbital also what do you say about the district court's statement and its opinion the one of the problems they've had with your position is your own failure to reveal what information you have obtained in discovery from the mississippi department of corrections in the underlying litigation i don't know that anyone asked us to provide that information in your honor but we don't have certainly don't have information about the transaction between texas and virginia and twenty fifteen in fact the mississippi attorney general was requested in the hearing on our motion for  in mississippi how it was that texas had and was able to transfer pena barbour to all the other states and the mississippi attorney general said he didn't know and the question the very critical question here unlike in a lot of these lethal injection challenges mississippi we are suggesting should use a single lethal dose of pentobarbital and that's it that's what texas does that's what george it does that's what missouri does not what virginia does it is not what the cheney a judge does your honor however virginia has been able to obtain pent right in the middle of two different sets of attempts that mississippi claims to have made to secure kind of barba tall including from texas and from virginia that's in in mississippi's answers to iraq tours and we provided we actually did provide in response to the motion to quash a lot of information about what was happening in mississippi and the it is available to mississippi if mississippi if it's a matter of money for example have you asked texas for this information we have subpoena texas as well your honor but i think we're entitled to know we don't have the information from texas either  d pardon me if i'm anticipating a question but i think in any commercial transaction you want information from you want information from both parties in weighing abusive to scratch and it seems to me we've got to consider a lot of things what you got and what you didn't get and whether what you didn't get was relevant to virginia's death penalty scheme yes and how would information it seems to me you've got to tell us that the court abused its discretion by not requiring further information from virginia and i haven't heard that yet occurred what you want  are interested in as far as mississippi you want the pen to barbara tell you want the single dose but what did virginia not give you that virginia should have given you virginia did not give us information the exact information could be any number of things it could be because we don't know that the detail right train so how did all say what is your just pantech so how can we say abuse of discretion if it sounds like you're asking for the kitchen sink with regard to texas and virginia virginia's interaction if you see what i'm saying if you're just asking for everything how can we say that's an abuse of discretion to deny i don't think it's very much your honor but it is significant for mation the reason i say that is because we do have the testimony pardon me that was provided by virginia in response to our subpoena of the officials of virginia department of corrections in cases here in virginia in which they gave very very broad i would say fifty thousand foot level responses to questions about that transaction now keep in mind we're talking about one transaction but it's a highly significant transaction because it does not involve private lethal injection drug suppliers it involves a party the state of texas that we know has been a barber tall as recently as last month when they executed somebody with it seems to be considerably narrower than what you asked for is shown on pages twenty and twenty four of the appendix and twenty two and twenty three is recited by the district court because almost all of that seems to be oriented to getting the dentist to ease of the execution team and the name and address of the and you didn't seem to limit what you wanted hardly at all your honor we did ask for we did not ask for information of the identities of virginia's execution team i don't know just like to me reading on page twenty almost every one of the swear you asked for all documents all drug labels all documents all documents all documents all documents that all communications of just about every one of those would have included that i believe our response to the motion to quash made clear that we did not object to redacting members of the execution teams but it's your burden to follow judge keenan's question on showing abuse of discretion and under the terms of the rules for a subpoena to narrowly focus it and i'm not seeing where you narrowly focused it cover what you're asking for today i believe in art i beg to differ your honor i do believe in our response to motion we made it clear that there were different categories of documents that we were seeking and i do think we it is a broad subpoena but i don't think it was overly broad they were capable of responding to it and the documents they to me just a second about the eleventh amendment issue that you sort of distinguish baron oil all by saying well it's different for the state versus the f right and it anything it seems like the opposite because the eleventh the memo specifically refers to sovereign immunity of the states the federal sovereign immunity is more a structural issue that we sort of in you know pull out of the constitution so why is that that distinction you just sort of a den apply it but you don't explain why that distinction would matter so why would it be that we would look at bear on oil and say oh well that applied to federal  i think there are two points one is because there is no opinion of a court of appeals that that addresses or that considers the eleventh amendment to cover subpoenas for documents or testimony in federal civil rights case or actually i think in any and we and we discussed that so part of it is a simple distinction that that would that want to make that point i think it makes a difference your honor because of the necessity in a federal civil rights case to determine the facts in in a federal civil rights case important i agree let me assure you yes right but that doesn't distinguish the direction that we're going right so barren oil says a state no matter how important the case civil rights like little kids puppies doesn't matter right the state can't go get documents from the us because of sovereign immunity right and so i want to flip around and you tell me why it matters that the thread being you know the federal court is allowed to go to the state to get those doc the same documents merely be in is the only distinction you're making is what these are really important documents because that doesn't seem to matter in barren oil i think i think it does matter just  have a different discussion about whether that would be permissible but that's not what you did we dutch correct your honor we issued subpoena against a federal against a state agency under thirty six our position is that the  that there is a difference between the state litigant seeking documents from the federal sovereign which is because because it's not particularly governed by the eleventh amendment is is unlimited so far as we're concerned and the eleventh amendment which be plainly not unlimited well i don't think federal immunity is unlimited it's not it's not i take that back your i appreciate  let me just say that i think that the that the eleventh amendment in a civil rights case against a state government should not prohibit discovery against other coordinate state have on this piece let me just make sure i have mentioned in my opening argument that we had also asked for deposition testimony so that even if the even if there were no other documents that we were permitted to receive on the basis of our subpoena we should be able at a minimum to ask questions of the people who produced the documents about the documents and i and that i don't think that this is an issue that is going to go away increasingly and have what he's asked and sort of a somewhat specific question which is are you asking us to pass on the  first and regardless or are you not there's some suggestion the case all that that's a choice that you may make as to whether you're asking us to pass on that question or are you not are you sort of reserving that question only if you need it kind of scenario and we need to know which of those i am in other words if you win on the district under the terms of the court's order and go  fish i am asking the court to rule on the merits of the the mint and unity argument and i'm doing that because you know regardless of whether it's this case or a case a year down the road or two years down the road i think that the virginia department of corrections and state agencies need guidance on where the cause of action arose if the state had any sort of tangential connection to the litigation occurring in the foreign jurisdiction tell us help us understand what attention connection give us something more than that right what does that mean because i think concern is one that i share which is what is how do we have somebody who maybe is not a party technically but who has a sufficient connection that we're concerned about immunizing them from providing doc and this is all just perhaps these are my suggestions i would note that in the federal context and foreign oil it didn't matter that in that case for example the f b i was involved in the investigation that the litigant the state law to consider trying to seek but i would say in this particular context perhaps if the state were involved in an investigation the other jurisdiction had said officials to the other jurisdiction are before you go on i mean you now ask us to rule on this and i think you need to answer with gr specificity exactly what it is you think the courts say i believe the court should say that the issuance of a third party subpoena against a foreign state a sovereign state intrudes upon the sovereignty of that state and absent a compelling reason to breach or waive that sovereign immunity state is entitled to claim that immunity and not respond to the third party discovery for what's a compelling reason as i stated before perhaps if the state had  opponent there's a difference on the federal side and i think on the state side as well and direct part a young with individuals as opposed to agency so imagine this scenario obviously we're not present it with here and may well make very clear that we're not trying to reach questions that were not presented but i want to ask you about it is what if they had subpoenaed your director instead and demanded that your director perspectively provide  information is there a difference in your mind between a subpoena of an individual even acting in their official capacity and an agency or an official arm of the state they may very well be and i recognize ongoing violation of federal constitutional law in a discovery dispute there's no allegation of any sort of ongoing federal constitutional violation that would trigger ex parte young i don't think that that kind  using as examples sure we do see in other contexts where we treat individuals differently and scrap billeted for example instead of a thirty six of the state to take a deposition of your director may well be a different question  d may very well be yes yes and with respect to judge richardson your questions before on applying different standards to the federal you know federal versus state why should it make a difference if it's flip flop i don't think it makes a difference that it's flip flopped and i wanted to point out that the court the tenth circuit recently addressed this very issue in a case involving tribal immunity which is narrower than states offer an immunity and in that case the tenth start circuit  five or more sorry bonnett versus harvest holdings seven forty one three eleven fifty five and that is a tribal community case but the quote from the cases in order to hold the tribe is not immune in this case which dealt with their party subpoenas we would have to find the same term suit two different things depending on whether judicial process is being exercised against the united states or against a tried declined to do and i think that that logic directly carries over here when you take the rationale of born oil that you can't sue the federal you know that state entities can't subpoena the federal government you have to apply to different standards to put you know if your lead again that is imposing you know a lawful court order of execution and that's part of the state's criminal justice system it is an interest that the united states supreme court has recognized as being very compelling and compelling and important to the state when circuit they said we're not we're actually not going to touch it right now what is your position regarding whether we can decline to address it if you agree we can decline to address it if we agree with you on the merits i wish i could say yes but i think that it does it's a circuit sometimes reach the merits and sometimes not i would have to look at the facts of the specific case perhaps there was a waiver thinking about the stronger case in two thousand and two i'm not familiar with that case  it was really worrying me about this case is that you are and you said that you want us to say that issuance of a third party subpoena against the state on any subject intrudes on that state's sovereign immunity and then you're arguing in this case you're concerned about protecting for junior's right to carry out its debts a tory duty upon a quagmire you've got to be more specific if what you're asking us pertains only to the death penalty today then yeah i think you have to be more specific as to what you want us to say regarding constant that don't seem to embrace what you have told us to do today but yet you're unable to distinguish those cases for us in terms of why the necessity of r immunity when there's alternative grounds for more than we actually want us to adopt well the rule that i want the court to adopt perhaps i wasn't clear was that state agencies states come with a virginia is entitled to claim us what if they had wanted to go to the state is there a state avenue that they could have gone through freedom of information act otherwise to get information to get similar information maybe not exactly from you what are those other avenues that a litigant or an individual could use to get information from a state agency like certainly when there is the state freedom of information act the state freedom and the formation act to be fair  now but yes tell me on the freedom of information act context can you get a court order compelling prompt response i mean i don't know if sometimes those things seem to drag out but in cases where there is a necessity of prompt information is that an avenue that you can go to a state court and see sort of oh you know what i would think i was a forthwith order asking an agency like b t o city to address  absolutely under the bridge in your freedom and that's mason act you have five business days to submit a crisp on's if you think you think the agency thinks they need more time they communicate with the request or and they can extend by a plea of up to ten business days if the request or and uniform out of state deposition act virginia is a party to that so if you're an out of state resident involved in out of state litigation and you want to subpoena an individual or information within the come out of virginia you act pursuant to that uniform know for sure so that said i'm happy to talk more about community but i would like to briefly touch upon a couple of issues that my opposing counsel raised with respect to the court the district court s analysis in terms of the undue burden as one of your honor's noted in till we were standing here in court today the comment approaching it wasn't actually sure what it is that we hadn't provided on that they were still interested in there it was also addressed in the testimony of the gravy mcauliffe case that particular transcript which was before the court as well for consideration it was also addressed although this is this document i don't believe made virginia is not attempting to be to frustrate civil rights litigation in other jurisdictions i we're not trying to hide or sit on our publicly available material we recognize that civil rights cases in other jurisdictions can be important and so when we receive these discovered requests we do try to voluntarily see what it is they need and provide balance in the interest of the state our interests and not disclosing some information with the interests of those out of state litigants so in the alabama case for example and this is referenced in the e mail that is part of the joint appendix between counsel counsel for the alabama inmates serve a very similar thirty six deposition notice of deposition and request for documents on the virginia department of corrections and we worked with the parties  to fill out an affidavit that contained all of the information about that pentobarbital transaction that they were so concerned about virginia certainly would have been willing to do the same thing in this case if the mississippi litigants had stepped up to the plate and said this is what we need  they didn't do that and so we couldn't figure out what else it is that they wanted that wasn't encompassed by the materials that were already pretty close in counsel's response of course and i ask about the district court's statement that one of the things that bothered the court plaintiff failure to reveal what information they have obtained in discovery in mississippi and he said that they were never asked to really show that is that accurate or you know i don't know i know that when they filed their response to my motion to quash that is information that could have been put in their response to my motion for chua you know we have stopped we tried to get that because you need to show for real forty five subpoena or one of the things the court could consider ability of the information from another source and so that's why the district court judge said i find that this information could be available through mississippi and they haven't alleged or pleaded or you know made any representations that is not available through mississippi and i think that wasn't an appropriate consideration for the district court to make that also ties into the reasoning on the notice of deposition versus the corresponding subpoena duces tecum for documents and the court kind of treated those hand and hand memorandum opinion and addressed the broad categories of the notice the deposition with the documents the notice the deposition with the documents because the court is trying to determine is the information available from another source the extensive testimony that was provided in the grave in the call of case and that was provided to counsel the extensive testimony it was provided in prieta was given to counsel is an alternative source of information and that's something that's appropriate for the court to consider in its rule forty five bal now ultimately honors if you strip away all of the descriptive in this case you take away lethal injection you take away execution you take away you know death row all of that stuff and you just consider this discovery dispute on its base  clear that the judgment below should be affirmed the out of state litigants who issued an overbroad not narrowly tailored extraordinarily link the rule thirty six notice that a deposition on a sovereign state the state attempted and a good faith effort to avoid having to come to court attempted to give them what they needed they weren't satisfied and they pressed for more the district court did a very detailed and  so this may be a replay on the ground from before but if you think that is required to address the eleventh amendment issues raised by the commonwealth no your honor for at least three reasons first a cover the bad reason first if if the court of firms the district court in all respects in granting the motion to quash then the eleventh the memmott issue is really not before the court because the district court didn't address it and so anything that the court would say if it were to anything that the court would say that word addressed eleventh memet could be considered and this is not the appropriate case for court is correct in all respects and we need not consider the length of the memmott issue in that context i agree with you that the court can rice it but why is that you have support for that i mean i understand the statement district court let me just say that that two other reasons that i think are pretty solid as well the first is in we issued the subpoena but the party that invoked the jurisdiction of the district court in virginia was the virginia department of corrections they didn't object to disappear and ask in require us to file a motion to compel they affirmative us to file a motion to compel and then assert the eleventh amendment in defense that's not what they did here they filed affirmatively a motion to quash you can't that's one of the challenges that you can't wait but conduct right so the same reason they could have just waited and raised it and we we would recognize it and that it's not i don't think of that as waiver your honor i think of it as the same as if the state of virginia had grounds that's our position because because you are invoking the jurisdiction of the court to enter an order quashing the subpoena so if you're saying the court doesn't have jurisdiction you don't have the power to do that and there is other vehicle thir is yes yes it is the third reason the third reason is similar to that which is which would be a conduct based reason which is that they provided they responded to the they didn't object in toto they responded they provided documents but they did not provide us a vehicle for inquiring about the documents that they submitted to us let me just take for an example  the testimony counsel opposite referred to that were excerpts from the testimony of cases in virginia about that twenty fifteen texas transaction they provided the testimony  prior testimony which which we can't use it's not necessarily admissible in the mississippi action nor would an affidavit in the in the actual trial on the merits but they did provide the documents in and we think that that is plenty enough reason for this court to decline to consider the eleventh amendment in this context i don't think that the issues are are fleshed out with any level of specificity to allow this court to write what would be probably the first opinion of its type related to a state software it's just not the right case for there are plenty of reasons to decline to address that that issue i w and that we are entitled to the documents related to the texas transaction and the documents listed on their privilege log which we briefed related to execute actual executions in