IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

WILLIE MCNAIR, *

*

Plaintiff, *

* Civil Action No. 2:06-cv-695-WKW

v. *

*

RICHARD ALLEN, et al., *

*

Defendants. *

PLAINTIFF’S RESPONSES TO

DEFENDANTS’ MOTIONS FOR PROTECTIVE ORDER,

FOR CONSOLIDATION, AND FOR A SPEEDY HEARING

Plaintiff Willie McNair respectfully submits the following in response to

Defendants’ Motion for Protective Order, and Defendant’s Motion toConsolidateand

for Speedy Hearing.

I. Response to Motion for Protective Order.

Defendants have moved this Court to adopt its proposed protective order which

attempts to shield every aspect of this litigation from the public view, from all but two

staff personnel associated with undersigned counsel, and from the named plaintiff

himself. Despite the extraordinarily sweeping nature of its proposed order, the

Defendants made no arguments in support of it. They have not provided citation to

any statute, rule, or case, nor have they provided any argument as to why such blanket

secrecy is necessary.

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1Another problem with the proposed protective order is that it contemplates

making everything about the execution process secret, including "written execution

procedures," the "chemicals used," the "manner of administering such chemicals,"

and "[a]ny data, records, or documents related to any execution." Proposed

Protective Order, pp. 1-2. The Defendants' assertion about the need to protect the

"identity" of people involved in the execution process is not a justification for making

non-personnel related information secret.

2

The only thing the Defendants have offered is their mere assertions that the

State has a “vital and compelling interest” in protecting the confidentiality of people

who participate in executions, and that these public officials have “privacy interests”

in information that identifies them. Defendants’ Motion for Protective Order, p. 2.

Such an assertion is not enough to overcome the general rule that legal

proceedings are open. See Farnsworth v. Proctor & Gamble, 758 F.2d 1545, 1546-7

(11th Cir. 1985) (“The law's basic presumption is that the public is entitled to every

person's evidence.”); see alsoEstate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184

F. Supp. 2d 1353, 1362 (N.D. Ga. 2002) ("What happens in the halls of government

is presumptively public business.") (quoting Union Oil Co. of California v. Leavell,

220 F.3d 562, 568 (7th Cir.2000)). 

More importantly, a mere assertion is not adequate to satisfy the requirement

of “good cause” under Rule 26(c) of the Federal Rules of Civil Procedure, the rule

which governs this issue.1 See In re Alexander Grant and Co., 820 F.2d 352, 356

(11th Cir. 1987) (“the sole criterion for determining the validity of a protective order

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is the statutory requirement of ‘good cause.’”).

Without any arguments offered in support of the Defendants’ request for

confidentiality, Plaintiff’s position is that, at this point, it would be inappropriate to

order blanket secrecy in this case and, accordingly, inappropriate to adopt the

extensive and burdensome protective order the Defendants have proposed. It is

possible that some kind of protective order would be appropriate in this case, but that

decision should be based on a consideration of the factors courts have identified as

being relevant in determining whether good cause exists: 1) the severity and the

likelihood of the perceived harm; 2) the precision with which the order is drawn; 3)

the availability of a less onerous alternative; and 4) the duration of the order. See In

re Alexander Grant and Co., 820 F.2d 352, 356 (11th Cir. 1987). In addition, the

Eleventh Circuit has required a “balancing of interests.” Farnsworth v. Proctor &

Gamble Co., 758 F. 2d 1545, 1547 (1985). 

Plaintiff is certainly amenable to joint development of a protective order

regarding confidentiality with respect to those facts for which there is a demonstrable

State need for secrecy. Indeed, Rule 26(c) expressly contemplates an attempt by the

parties to work toward a protective agreement without court involvement.

Undersigned counsel intends to discuss the issue of protective order with opposing

counsel prior to the status conference that is scheduled for November 28, 2006, at

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which point arguments can be presented to the Court about issue on which the parties

are unable to reach agreement. 

II. Response to Defendants’ Motion for Consolidation and for Speedy

Hearing.

Plaintiff has no opposition to consolidation with James Callahan's case,

recognizes the State's concern for an expeditious review of the issues in this case, and

does not oppose a fair time line for resolving them. A reasonable time in which to

complete discovery, though, is appropriate. The issues are complicated and scientific,

will necessarily require the assistance of medical experts, and will likely involve

significant legal and factual disputes. More importantly, the issues are

unquestionably important. Constitutional questions about whether the State's current

method for carrying out the most severe punishment in our legal system are worthy

of this Court's careful consideration and should be decided with no undue haste. The

claims in this case should be resolved expeditiously and fairly, after adequate

discovery of the facts surrounding the issues, and after those facts have been

thoroughly analyzed and carefully presented to the Court.

Pursuant to this Court’s Order dated November 2, 2006, we will confer with

the State to develop and hopefully agree upon a joint Rule 26(f) discovery plan, and

we will be prepared to discuss these issue at the status conference scheduled for

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November 28, 2006.

Respectfully submitted,

s/Randall S. Susskind

Randall Susskind (SUS002)

s/Cathleen I. Price

Cathleen I. Price (PRI056)

Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

rsusskind@eji.org

cprice@eji.org

Counsel for Plaintiff Willie McNair

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CERTIFICATE OF SERVICE

I certify that on November 8, 2006, I electronically filed the foregoing with the

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

filing to the following: J. Clayton Crenshaw and James W. Davis.

s/ Randall S. Susskind

Randall S. Susskind (SUS002)

Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

(334) 269-1806

rsusskind@eji.org

Counsel for Plaintiff Willie McNair

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