IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-695-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

MOTION TO QUASH SUBPOENAS 

DIRECTED TO EMT-1 AND EMT-2 

 The defendants hereby request this Court quash the subpoenas requiring EMT-1 

and EMT-2 to appear at the trial in the above-styled case on October 3, 2007. See Fed. 

R. Civ. P. 45(c)(3)(outlining the situations in which a court “shall quash or modify [a] 

subpoena”). In support of its request, the defendants offer the following: 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 1 of 8
2

 1. The plaintiffs issued subpoenas requiring both EMT-1 and EMT-2 to 

appear before this Court in Montgomery at 9:00 a.m. on October 3, 2007. (Exh. A, B) 

 The purpose of these subpoenas is to compel both EMT-1 and EMT-2 to testify during 

the trial in the above-styled case. (Id.) These subpoenas should be quashed under two 

provisions of Rule 45(c)(3).1 

 2. Rule 45(c)(3)(A)(ii) – 100 mile rule: Under Rule 45(c)(3)(A)(ii), this 

Court “shall quash or modify” a subpoena if it “requires a person who is not a party or 

an officer of a party to travel to a place more than 100 miles from the place where that 

person resides, is employed or regularly transacts business.” 

3. Neither EMT-1 nor EMT-2 live in this district, nor do they live and/or 

work within 100 miles of this Court. EMT-1 testified during his/her deposition that 

EMT-1 will not be within 100 miles of Montgomery on October 3, 2007; in fact, EMT1 will be on a previously planned cruise in the Caribbean. (EMT-1 deposition at p. 

47).2 EMT-2 likewise testified that he/she will not be within 100 miles of

 

1 Plaintiffs also issued subpoenas to Warden Culliver, DOC-1, DOC-2, and RN. With respect to 

DOC-1, DOC-2, and RN, plaintiffs represented that they have no present intention to call those 

persons to testify in court. Defendants therefore will not move to quash the subpoenas to DOC-1, 

DOC-2, or RN at this time. If plaintiffs later decide to seek to enforce those subpoenas, defendants 

respectfully reserve the right to file motions to quash at that time. 

2 The deposition of EMT-1 is attached as Exhibit 4 to the Declaration of Vincent Fitzpatrick, which 

was submitted by the Plaintiffs in opposition to Defendants’ Motion for Summary Judgment. The 

deposition of EMT-2 is attached as Exhibit 23 to the same declaration. In this motion, the 

Defendants will cite directly to the page numbers in their depositions. 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 2 of 8
3

Montgomery during the week of the trial in this case. (EMT-2 deposition at p. 28) 

 4. Neither EMT-1 nor EMT-2 is a party, or an officer of a party, in this case. 

 Neither EMT-1 nor EMT-2 is employed by the Alabama Department of Corrections 

(or any other branch of state government). Instead, EMT-1 and EMT-2 are individuals 

who work for private organizations as trained EMT paramedics. (EMT-1 deposition at 

p. 8; EMT-2 deposition at p. 8) 

 5. Because EMT-1 and EMT-2 are non-party, private citizens that will be 

forced to travel over 100 miles to appear in this Court on October 3, 2007, this Court 

should quash their subpoenas under Rule 45(c)(3)(A)(ii). 

 6. Furthermore, the plaintiffs cannot force the conditional appearance of 

EMT-1 or EMT-2 under the exception outlined in Rule 45(c)(3)(B)(iii), which allows 

this Court to order the conditional appearance of otherwise exempt non-party witnesses 

if the plaintiffs show “a substantial need for the testimony or material that cannot be 

otherwise met without undue hardship.” The issue in this case with regard to EMT-1 

and EMT-2 is whether each person is qualified to insert the IV line during an 

execution. The plaintiffs had the full opportunity to question EMT-1 and EMT-2 on 

this issue during their depositions. Both EMT-1 and EMT-2 testified that they had 

more than 20 years experience initiating IV lines as EMT’s and that they had the 

appropriate certifications; thus, both are qualified to insert IV lines. (EMT-1 

deposition at p. 8; EMT-2 deposition at p. 8) If the plaintiffs disputed this fact, they 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 3 of 8
4

had the opportunity to ask any follow-up question they wanted during the EMT’s 

depositions. To force EMT-1 and EMT-2 to answer the same or similar questions a 

second time is unnecessary/abusive, and the plaintiffs have failed to show “a 

substantial need” to question EMT-1 and EMT-2 a second time. Fed. R. Civ. P. 

45(c)(3)(B)(iii). 

 7. Plaintiffs purported reason to call the EMTs is that a part of their 

deposition testimony is alleged to be “incredible.” Doc. 89 at 18-19; Doc. 90 at 12-13; 

Fitzpatrick’s oral statement to the court during pre-trial conference. The plaintiffs’ 

only specific allegation to support this conclusion is that EMT-1’s testimony that 

he/she takes “five to ten minutes” to establish an IV line is undermined by information 

contained in three execution logs and two autopsy reports. Doc. 89 at 18-19; Doc. 90 

at 12-13. The plaintiffs assert that these execution logs indicate that it took 18 minutes, 

22 minutes, and 29 minutes to install the IV lines for those executions. Id. The 

plaintiffs contend that two autopsy reports indicate one inmate received seven IV 

puncture marks and another had eleven IV puncture marks.3 Id.

 8. The reasons offered by the plaintiffs to require the EMTs to testify should 

be rejected by this Court. First, the plaintiffs had the execution logs and autopsy 

reports when they questioned the EMTs and should have asked questions concerning

 

3 None of these allegations, even if true, establish a constitutional violation. 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 4 of 8
5

those reports. Second, the information contained in the execution logs and EMT-1’s 

testimony that it took him/her “five to ten minutes” to install an IV line is not 

inconsistent. The execution logs are not indicating when the EMTs attempted to gain 

IV access, rather they are indicating when the EMTs initially come into the execution 

chamber and begin the process of loading their supplies onto a cart. Thus, the reason 

given by the plaintiffs to require in-court testimony from the EMTs is implausible. 

This Court should quash their subpoenas. 

 9. Rule 45(c)(3)(A)(iv) – “Undue Burden” rule: Rule 45(c)(3)(A)(iv) 

requires this Court to quash or modify a subpoena if the subpoena “subjects a person to 

undue burden.” Forcing EMT-1 and EMT-2 to appear in this Court on October 3, 

2007 subjects both persons to an “undue burden” for at least two reasons. 

 10. First, as outlined above, both EMT-1 and EMT-2 live and work over 100 

miles away from Montgomery. In fact, EMT-1 will be on a cruise in the Caribbean on 

October 3, 2007 on a previously planned vacation. (EMT-1 deposition at p. 47) EMT2 will be at work over 100 miles away on that date. (EMT-2 deposition at p. 28) It is 

an undue burden to force EMT-1 to cancel his/her previously planned trip, and to force 

EMT-2 to miss work and travel over 100 miles, to appear before this Court to give 

testimony similar to the testimony they have already given in a deposition. 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 5 of 8
6

 11. Second, and perhaps more importantly, forcing EMT-1 and EMT-2 to 

appear in this Court places an undue burden on their significant privacy interests. 

EMT-1 and EMT-2 are individuals who are contracted by the Department of 

Corrections to assist in executions. As this Court has acknowledged, these individuals 

have a significant interest in remaining anonymous with regard to their connection with 

executions. Forcing EMT-1 and EMT-2 to appear at trial would hinder their valid 

interest in remaining anonymous, and it would likely defeat the whole purpose of 

having them previously submit to protected depositions. Again, EMT-1 and EMT-2 

have testified during depositions concerning their connections to the Plaintiff’s 

pending executions, and it would be an undue burden to force them to publicly appear 

in this Court to give the same (or similar) testimony a second time. 

 12. In short, the Plaintiffs have had a full and fair opportunity to question 

EMT-1 and EMT-2 regarding the issues before this Court. This Court has their 

depositions to review when deciding this case. There is no valid reason to force these 

non-party, private citizens to 1) travel over 100 miles and 2) risk losing their 

anonymity to answer questions that have already been asked or could have already 

been asked. Subjecting the EMTs to in-court testimony could cause them to forgo 

future assistance in executions; thus, hindering the defendants’ legal obligation to carry 

out executions. The insufficient reasons given by the plaintiffs to require in-court 

testimony from the EMTs should be rejected. 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 6 of 8
7

 For the foregoing reasons, the defendants respectfully request this Court quash 

the subpoenas directed toward EMT-1 and EMT-2. 

Respectfully submitted, 

Troy King 

Attorney General 

/s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007) 

Assistant Attorney General 

/s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 7 of 8
8

CERTIFICATE OF SERVICE 

I hereby certify that on September 13, 2007, I electronically filed the foregoing 

with the Clerk of the Court using CM/ECF system which will send notification of such 

filing to the following: Stephanie L. Cohen, Vincent R. Fitzpatrick, Jr., Heather 

K. McDevitt, Randall Susskind, and Cathleen Price.

 

 /s/ J. Clayton Crenshaw 

 J. Clayton Crenshaw 

 Assistant Attorney General 

ADDRESS OF COUNSEL: 

Office of the Attorney General 

Capital Litigation Division 

Alabama State House 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 Office 

(334) 353-3637 Fax 

ccrenshaw@ago.state.al.us

jimdavis@ago.state.al.us

Case 2:06-cv-00695-WKW-CSC Document 100 Filed 09/13/2007 Page 8 of 8
Case 2:06-cv-00695-WKW-CSC Document 100-2 Filed 09/13/2007 Page 1 of 3
Case 2:06-cv-00695-WKW-CSC Document 100-2 Filed 09/13/2007 Page 2 of 3
Case 2:06-cv-00695-WKW-CSC Document 100-2 Filed 09/13/2007 Page 3 of 3
Case 2:06-cv-00695-WKW-CSC Document 100-3 Filed 09/13/2007 Page 1 of 3
Case 2:06-cv-00695-WKW-CSC Document 100-3 Filed 09/13/2007 Page 2 of 3
Case 2:06-cv-00695-WKW-CSC Document 100-3 Filed 09/13/2007 Page 3 of 3