IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

WILLIE McNAIR, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) 

 ) No. 2:06-cv-00695-WKW-SRW

RICHARD ALLEN, Commissioner, ) 

Alabama Department of Corrections, ) 

And GRANTT CULLIVER, Warden, ) 

Holman Correctional Facility ) 

 ) 

 Defendants. ) 

MOTION FOR PROTECTIVE ORDER

 Defendants Richard Allen, in his official capacity as Commissioner of the Alabama 

Department of Corrections, and Grantt Culliver, in his official capacity as Warden of the Holman 

Correctional Facility (“Defendants”), who are also counter-plaintiffs in this action, respectfully 

move this Court for a Protective Order with respect to confidential documents and information 

that may be at issue in this litigation. In support of this Motion, Defendants state as follows: 

1. Plaintiff, a death-row inmate, filed this action pursuant to 42 U.S.C. § 1983, 

claiming that the procedures used by the State of Alabama in the administration of capital 

punishment by lethal injection are unconstitutional. Defendants deny Plaintiff’s claim and have 

asserted a counter-claim to request a judgment declaring that the said procedures do not violate 

plaintiff’s rights. 

2. The Alabama Department of Corrections, the State of Alabama, and the 

Defendants (collectively, “the State”), have a vital and compelling interest in protecting the 

confidentiality of the procedures and all aspects of the manner of enforcing a death sentence in 

Alabama. 

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3. To the extent Plaintiff is allowed to inquire into the identity or qualifications of 

persons who participate in the enforcement of death sentences, the State has a vital and 

compelling interest in protecting the confidentiality of such information, and such persons have 

privacy interests in any information that may be used to identify them. 

4. To protect such confidentiality, Defendants request that this Court enter a 

protective order that will govern how such information or documents can and cannot be used and 

disclosed. Defendants request that the Protective Order prohibit any disclosure that does not 

comply with such Order; that it prohibit any disclosure to the Plaintiff in this action; and that it 

require that wherever disclosure is permitted, such as to counsel of record or retained experts, 

that such persons sign an affidavit expressing knowledge of the Order and an agreement to 

comply with the Order. Further, in light of the electronic filing requirements that govern other 

actions in this Court, Defendants request that the Order address how the parties should file 

pleadings or exhibits into the court, where pleadings or exhibits contain confidential information. 

5. Defendants propose an order, attached hereto as Exhibit A, for the Court’s 

consideration. 

Respectfully submitted, 

TROY KING (KIN047) 

ATTORNEY GENERAL 

BY: 

s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007)

Assistant Attorney General 

s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

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OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: jimdavis@ago.state.al.us 

 

CERTIFICATE OF SERVICE

This is to certify that on the 1st day of November, 2006, a copy of the foregoing has been 

electronically filed with the Clerk of the Court using the CM/ECF system, which will 

electronically send a copy of the same to the following: 

Cathleen I. Price 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

cprice@eji.org

Randall S. Susskind 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

rsusskind@eji.org

s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: jimdavis@ago.state.al.us 

Case 2:06-cv-00695-WKW-CSC Document 16 Filed 11/01/2006 Page 3 of 3
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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

WILLIE McNAIR, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) 

 ) No. 2:06-cv-00695-WKW-SRW

RICHARD ALLEN, Commissioner, ) 

Alabama Department of Corrections, ) 

And GRANTT CULLIVER, Warden, ) 

Holman Correctional Facility ) 

 ) 

 Defendants. ) 

PROTECTIVE ORDER

IT IS HEREBY ORDERED: 

 This matter concerns the constitutionality of the procedures used in executions by 

lethal injection by the State of Alabama and its relevant agencies. The Court finds that 

the State and its relevant agencies have a compelling interest in preserving the 

confidentiality of such procedures and other information related to such procedures. This 

Order ("Protective Order") shall govern the use and dissemination of all material or 

information designated as Confidential produced within this action. 

1. The following information, documents, or other tangible items, if 

produced in this action, are and shall be “Confidential” without further action by this 

Court and whether or not so designated by the producing party (such matters are not 

made admissible or discoverable by inclusion within this Order; rather, the parties have 

reserved all arguments related to admissibility and discoverability). All such items are 

hereinafter referred to as “Confidential Information” and shall include the following: 

a. The written execution procedures of the State of Alabama, the 

Alabama Department of Corrections, or any other relevant state 

agency or subdivision (hereinafter “the State”), and any drafts or 

amendments to such documents; 

b. The current or past procedures used by the State to carry out 

executions by lethal injection including without limitation the 

chemicals used in such procedures, the manner of administering such 

chemicals, and the identity or qualifications of persons who monitor or 

carry out execution procedures; 

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c. Any record describing any past or current procedure used in 

executions; 

d. The identity of any individual who has, or is expected to, participate in 

any execution, including without limitation such person’s name, 

address, training, credentials, qualifications, and experience; 

e. Any data, records, or documents related to any execution conducted by 

the State; 

f. All testimony, expert opinions, or expert reports that quote, or include 

specific information about, the information or documents described in 

this paragraph or any subsection thereof; 

g. All testimony or documents referring to the State’s procedures with 

respect to Death Row inmates which identify or discuss security 

procedures, security personnel, or pre-execution schedules; and 

h. Any other document or information not specifically listed herein but 

which contains, discusses, reveals, or refers to the specific manner of 

enforcing a death sentence in this State. 

2. The State shall use its best efforts to identify any document or other 

tangible item that is subject to this Order by stamping or marking the protected material 

as follows: 

 CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 

Such markings shall be made on the face of the original or photocopy of the document, 

information, or other tangible item, and upon each page so designated if practicable. The 

inadvertent failure to mark such document, information, or other tangible item shall not 

be a waiver of its confidentiality and shall not relieve any party or covered person from 

his or its obligations under this Order. 

3. Confidential Information shall not be disclosed other than as expressly 

authorized in this Order and may be disclosed only to: 

a. This Court and its personnel; 

b. Counsel of record in this litigation, provided that prior to disclosure, 

such Counsel shall execute the Affidavit attached hereto as Exhibit A 

or shall either represent to the Court on the record, or advise the Court 

in writing, that he or she has read this Order, understands it, and is 

bound by its terms; 

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c. Up to two staff persons employed by Counsel of record, provided that 

prior to disclosure, each staff person having access to Confidential 

Information shall execute the Affidavit attached hereto as Exhibit A; 

and 

d. Any Expert who is assisting in the preparation and trial of this 

litigation, but only to the extent reasonably necessary to enable such 

Expert to render such assistance; provided that Counsel for the party 

contemplating such disclosure shall determine that (i) disclosure to an 

Expert of particular Confidential Information is, in that counsel's good 

faith judgment, necessary to that party's prosecution of the case; (ii) 

counsel has formed a good faith belief that the individual has not 

previously violated any confidentiality agreement or order and is not 

likely to violate the terms of this Order. Prior to disclosure, each such 

expert must execute the Affidavit annexed hereto as Exhibit A. 

4. No person subject to this Order may disclose Confidential Information to 

any person not qualified under Paragraph 3 of this Order, including parties to this action. 

If a party wishes to disclose any material designated as Confidential to any person not 

described in Paragraph 3 of this Order, permission to so disclose must be requested from 

the State in writing, directed to counsel of record for the State in this litigation, and such 

permission if given must be in writing from the State or its counsel. The person to whom 

such Confidential Information is shown must execute the Affidavit annexed hereto as 

Exhibit A prior to such disclosure. 

5. Where any Confidential Information or material summarizing, reciting, 

containing, or reflecting Confidential Information is included in any papers filed with the 

Court or in a deposition, such papers or depositions shall be marked in words that in 

substance state "CONFIDENTIAL -- PROTECTIVE ORDER" and be placed in a sealed 

envelope marked with the caption of the case and held under seal in accordance with the 

local rules and practices of this Court for such pleadings and documents. Such envelope 

shall contain a statement substantially in the following form: 

THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A 

PROTECTIVE ORDER ENTERED IN THIS CASE. IT IS NOT TO BE 

OPENED, NOR ARE ITS CONTENTS TO BE DISPLAYED, 

REVEALED, OR MADE PUBLIC, EXCEPT BY ORDER OF THE 

COURT. 

 A copy of this Protective Order shall be submitted to the Clerk of the Court with 

the materials filed under seal. Unless otherwise ordered by the Court, appropriate steps 

shall be taken to preserve the confidentiality of Confidential Information during this 

action and at any hearing or other proceedings at which confidential information may be 

referred to or disclosed. 

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 For purposes of this action, and to the extent a matter to be filed in court contains 

Confidential Information, the parties are not obligated to comply with the electronic 

filing rules of this Court to the extent such rules are inconsistent with this Order. 

6. If any deposition is taken in this case, the transcript or recording of such 

deposition is subject to this Order and shall be treated as Confidential Information. 

7. No one may attend, or review the transcripts or recordings of, any 

deposition taken in this case, other than the court reporter (who shall first have executed 

the Affidavit annexed hereto as Exhibit A), counsel of record, counsel for the State, the 

deponent, and counsel for the deponent (provided deponent and deponent's counsel have 

previously executed the Affidavit annexed hereto as Exhibit A), except that an expert 

who is qualified under Paragraph 3(d) of this Order and who has executed the Affidavit 

annexed hereto as Exhibit A may review the transcript of such deposition. 

8. Unless otherwise ordered by the Court, any presentation of Confidential 

Information orally in Court prior to trial shall be made in the presence of only the 

presiding judicial authority and court staff, and such persons qualified under Paragraph 3 

above who have previously executed the Affidavit annexed hereto as Exhibit A. 

9. Confidential Information covered by this Order shall be used by counsel 

and other persons qualified under Paragraph 3 above for the sole purpose of representing 

the parties to this lawsuit, with respect to the claims in this lawsuit, and for no other 

purpose. 

10. All Confidential Information and copies or extracts thereof shall be 

maintained in the custody of counsel of record for the parties in a manner that limits 

access to qualified persons. 

11. Except to the extent expressly authorized in this Order, no party to this 

action receiving Confidential Information shall use or disclose it for any purpose other 

than the preparation for trial, pretrial proceedings, and trial of this case and/or any appeal 

therefrom. 

12. In the event that any copy, notes, summary, or compilation contains 

Confidential Information, or any electronic image or database contains Confidential 

Information, such Confidential portion(s) shall be subject to the terms of this Order to the 

same extent as the material or information from which such copy, summary, compilation, 

electronic image, notes, or database was made or derived. 

13. Inadvertent failure either to designate any information pursuant to this 

Order or to assert a claim of privilege and/or work-product immunity shall not constitute 

a waiver of any otherwise valid claim for protection. 

14. Nothing in this Protective Order shall be deemed to restrict in any manner 

the use by the State of any information in its own documents and materials. 

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15. If another court or administrative agency subpoenas or orders production 

of Confidential Information that a party has obtained under the terms of this Protective 

Order, such party shall, at least 7 days before the date given to respond to the subpoena or 

order, notify the State of the pendency of the subpoena or order in writing, and shall not 

produce the Confidential Information until the State has had reasonable time to take 

appropriate steps to protect the material. 

16. This Protective Order is without prejudice to the right of any party to seek 

modification of it from the Court. It shall remain in effect until such time as it is 

modified, amended, or rescinded by the Court. 

17. Counsel for the party obtaining the person's signature on an Affidavit 

pursuant to this Order will retain the original signed Affidavit. If there is a claimed 

violation of this Protective Order, the party that claims the violation may apply to the 

Court to review the Affidavits signed pursuant to this Order in the possession of Counsel 

who has retained any original signed Affidavit and written record kept pursuant to this 

Order. 

18. This Protective Order is intended to provide a mechanism for the handling 

of Confidential Information. It shall not be deemed to be a waiver by any of the parties 

of any objections to admissibility, relevancy, materiality, or discoverability, nor a waiver 

of any right or protection otherwise afforded by the Federal Rules of Civil Procedure or 

the Federal Rules of Evidence. 

19. This Court shall have continuing jurisdiction to modify, amend, enforce, 

interpret, or rescind this Order notwithstanding the termination of this action. 

20. Within 10 days after conclusion of this action, all documents and materials 

containing Confidential Information (other than exhibits to the official court record), and 

all copies thereof, shall be returned to the State or, at the sole option of the State, 

destroyed. Counsel for any party or third party receiving Confidential Information shall 

make written certification of compliance with this provision and shall deliver the same to 

counsel for the State within 30 days after the conclusion of this action. 

Done this ____ day of _________________, 2006. 

 ______________________________ 

 WILLIAM KEITH WATKINS 

 United States District Judge 

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EXHIBIT "A" 

AFFIDAVIT

I have reviewed the Protective Order approved by the United States District Court for the 

Middle District of Alabama on the ____ day of _____________, 2006, in Docket Nos. 

__________________________________, and agree to be bound by the terms and 

conditions of such Order. 

_____________________________________ 

Signature 

Name: _______________________________ 

Residence Address: _______________________________ 

Employer or Firm: _______________________________ 

Business Address: _______________________________ 

Party: _______________________________ 

Date: _______________________________ 

SWORN AND SUBSCRIBED this ____ day of _______________, 20___. 

 _____________________ 

 Notary Public 

My Commission Expires ___________ 

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