NEWYORK 6266547 (2K) 

IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

Plaintiff/Counter-Defendant, ) 

) 

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

 ) 

RICHARD ALLEN, et al., ) 

) 

Defendants/Counter-Plaintiffs. ) 

___________________________________ 

 ) 

JAMES CALLAHAN, ) 

 ) 

Plaintiff/Counter-Defendant, ) 

 ) 

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

 ) 

RICHARD ALLEN, et al., ) 

) 

Defendants/Counter-Plaintiffs. ) 

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 

OBJECTION TO MAGISTRATE JUDGE’S ORDER 

FILED ON AUGUST 23, 2007

 Plaintiffs Willie McNair and James Callahan respectfully submit this opposition to 

Defendants’ Objection to Magistrate Judge’s Order Filed on August 23, 2007 (the “Order”, Doc. 

86) denying Defendants’ motion to compel responses to certain interrogatories (the “Motion”, 

Doc. 78) (the “Objection”, Doc. 88). 

 The issue addressed by the Order is whether the Defendants can compel the Plaintiffs to 

“describe how they contend the [execution] procedures must be fixed [to meet constitutional 

standards.” Order, Doc. 86 at 2. As Judge Coody noted, in response to Defendants’ 

Interrogatory No. 3, Plaintiffs set out in detail their contentions regarding the deficiencies in 

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 1 of 6
NEWYORK 6266547 (2K) - 2 - 

Alabama’s method of execution by lethal injection. Id. Although Defendants contend that 

Plaintiffs should be required to specify how Alabama’s execution protocol must be “fixed” in 

order that Defendants can better defend themselves, the Defendants improperly seek to require 

Plaintiffs to speculate concerning hypothetical execution procedures and practices not employed 

by Alabama. This is an improper use of interrogatories under Federal Rule of Civil Procedure 

(“F.R.C.P.”) 33. See Plaintiffs’ Opposition, Doc. 83 at 3-4. Moreover, “the law is clear that 

identifying an alternative, constitutional method of execution is not an essential element of a 

capital litigant’s § 1983 claim.” Order, Doc. 86 at 2 (citing Hill v. McDonough, 126 S.Ct. 2096, 

2103 (2006). Specifying how the protocol must be “fixed” is not an obligation of Plaintiffs. It 

would be as if a plaintiff in a product liability case were asked how a non-defective product 

could be designed. Obviously that is inappropriate, and the same demand is inappropriate here. 

When a state decides to execute people, that state, and not the people the state intends to kill, has 

the responsibility of devising a method that is not cruel and unusual. See Order, Doc. 86 at 3 

(“the principles of federalism and comity as well as prudential concerns dictate that the 

defendants be given the initial opportunity to develop a remedy.”). 

 As the issue currently before this Court already has been the subject of full briefing with 

a few minor exceptions that are addressed below, Plaintiffs rely on the arguments set forth in 

their Opposition to the Motion (Doc. 83), and upon the rationale set forth in Magistrate Judge 

Coody’s Order (Doc. 86). 

ARGUMENT

I. THE MAGISTRATE JUDGE’S ORDER IS NEITHER CLEARLY ERRONEOUS 

NOR CONTRARY TO LAW 

 Pursuant to 28 U.S.C. § 636(b)(1)(A), “[a] judge of the court may reconsider any pretrial 

matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is 

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 2 of 6
NEWYORK 6266547 (2K) - 3 - 

clearly erroneous or contrary to law.” Such standard is not met here. Magistrate Judge Coody is 

highly experienced in dealing with discovery disputes and has entered an order that is legally 

well-founded. 

 F.R.C.P. 33 requires that the contentions or legal opinions of an interrogate relate or 

apply to a fact. Kendrick v. Sullivan, 125 F.R.D. 1, 3 (D.C. Cir. 1989). Here, Defendants seek to 

require Plaintiffs to speculate concerning a constitutionally compliant execution protocol. Thus 

the responses sought by Defendants do not concern relevant facts; they concern speculation and 

conjecture. Federal discovery rules are broad but they are not without limit, and this is an 

improper use of interrogatories under F.R.C.P. 33. See Plaintiffs’ detailed argument on the scope 

of F.R.C.P. 33 in their Opposition, Doc. 83 at 3-4. In these circumstances, there is no basis for 

this Court to overturn Judge Coody’s Order. 

II. DEFENDANTS’ NEW ARGUMENT ABOUT AN IMPROPER SUCCESSIVE 

HABEAS PETITION IS BASELESS 

 In a last-ditch attempt to buttress their Motion, the Defendants assert a new ground for 

compelling Plaintiffs’ responses: “if the only procedures that plaintiffs would agree to be 

constitutional are so onerous that no State could possibly adopt them, that would tend to show 

that plaintiffs’ real purpose is to block their execution, and this would support defendants’ 

argument that the claim is in essence an improper successive habeas petition.” Objection, Doc. 

88 at 2. Defendants similarly argue that “the plaintiffs’ failure to suggest an alteration to 

Alabama’s execution procedures . . . turns the lethal-injection claim into a challenge against the 

sentence, a claim which sounds in habeas.” Id. at 2-3. 

Judge Coody has in effect disposed of Defendants’ arguments. Defendants moved to 

compel Plaintiffs to spell out what they contend would be a constitutional method of execution, 

despite the fact that Plaintiffs have set forth their contentions as to the flaws in the current 

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 3 of 6
NEWYORK 6266547 (2K) - 4 - 

method in great detail. Judge Coody flatly rejected the Motion, holding that Plaintiffs were not 

required to set forth such a contention at least at this time. Judge Coody also observed that, 

“[t]he law is clear that identifying an alternative, constitutional method of execution is not an 

essential element of a capital litigant’s § 1983 claim. Order, Doc. 86 at 2, citing Hill v. 

McDonough, 126 S. Ct. 2096, 2103 (2006). 

Plaintiffs do not contend that it is impossible to devise a constitutional method of 

execution by lethal injection. Plaintiffs challenge the circumstances of their sentences (§ 1983 

claims), and not the sentences themselves (habeas claims). Thus there is absolutely no basis for 

treating Plaintiffs’ § 1983 actions—explicitly authorized by the Supreme Court in Hill—as 

habeas petitions (an argument specifically rejected by the Supreme Court in Hill). As Judge 

Coody held, it is for Defendants to propose a constitutional method and, of course, the Court 

may have something to say about it. There is nothing to be gained from, and it is improper 

discovery to seek, Plaintiffs’ opinions on the subject. 

CONCLUSION

 Plaintiffs respectfully request that the Court affirm Judge Coody’s Order and deny 

Defendants’ Objection. 

Date: September 10, 2007 

/s/ Vincent R. FitzPatrick, Jr.

VINCENT R. FITZPATRICK, JR. 

HEATHER K. MCDEVITT 

STEPHANIE COHEN 

Bar Numbers (SDNY): 

VF2907; HM9973; SM7006 

Counsel for Plaintiff Willie McNair 

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 4 of 6
NEWYORK 6266547 (2K) - 5 - 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com

hmcdevitt@whitecase.com

stephcohen@whitecase.com 

 - and - 

RANDALL S. SUSSKIND (SUS002) 

CATHLEEN I. PRICE (PRI056) 

Counsel for Plaintiffs Willie McNair 

and James Callahan 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

Telephone: (334) 269-1803 

Facsimile: (334) 269-1806 

rsusskind@eji.org

cprice@eji.org

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 5 of 6
NEWYORK 6266547 (2K) - 6 - 

CERTIFICATE OF SERVICE

 I certify that on September 10, 2007, a copy of the foregoing was filed electronically with 

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

the following: J. Clayton Crenshaw, James W. Davis, Corey Maze and Jasper Roberts. 

 /s/ Stephanie Cohen 

STEPHANIE COHEN 

Bar Number (SDNY): SM7006 

Counsel for Plaintiff Willie McNair 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

stephcohen@whitecase.com 

Case 2:06-cv-00695-WKW-CSC Document 96 Filed 09/10/2007 Page 6 of 6