UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: OHIO EXECUTION

PROTOCOL LITIGATION Case No. 2:11-cv-1016

JUDGE GREGORY L. FROST

Magistrate Judge Michael R. Merz

This document relates to: All Plaintiffs.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) Defendants’ motion for a protective order (ECF No. 530), Plaintiffs’ memorandum in

opposition (ECF No. 532), Defendants’ reply memorandum (ECF No. 535), Plaintiffs’ written

closing arguments (ECF No. 549), and Defendants’ written closing arguments (ECF No. 550); 

(2) Plaintiffs’ motion to exclude the testimony and declaration of J. Lawrence

Cunningham (ECF No. 536) and Defendants’ memorandum in opposition (ECF No. 544); and 

(3) Defendants’ motion to exclude the testimony and declaration of Randy P. Juhl (ECF

No. 542).

For the reasons that follows, the Court GRANTS Defendants’ motion for a protective

order (ECF No. 530), DENIES Plaintiffs’ motion to exclude the testimony and declaration of J.

Lawrence Cunningham (ECF No. 536), and DENIES Defendants’ motion to exclude the

testimony and declaration of Randy P. Juhl (ECF No. 542).1

 

1

 Defendants had also previously filed a motion for judicial notice (ECF No. 541), which

this Court orally denied at the beginning of the September 25, 2015 oral argument on the motion

for a protective order. (ECF No. 548, at Page ID # 15094.) This Opinion and Order

memorializes that decision. 

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I. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 26(c)(1) provides that “[a] party or any person from

whom discovery is sought may move for a protective order in the court where the action is

pending . . . .” Fed. R. Civ. P. 26(c)(1). The rule also provides that “[t]he court may, for good

cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or

undue burden or expense . . . .” Id. The Sixth Circuit Court of Appeals “has endorsed the view

that to justify a protective order, one of Rule 26(c)(1)’s enumerated harms ‘must be illustrated

with a particular and specific demonstration of fact, as distinguished from stereotyped and

conclusory statements.’ ” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting

Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (additional internal

quotation marks omitted)). Thus, a party seeking a protective order must specify one of the

harms listed in Rule 26(c)(1) to warrant issuance of such an order. Id.

B. Analysis

The briefing before this Court presents a relatively straightforward issue: whether

Defendants should have to disclose the identities of persons and entities needed to acquire

execution drugs and related materials. Defendants argue that nondisclosure is imperative

because, without it, they will not be able to obtain the drugs, materials, and testing necessary to

carry out a lawful execution. This is because, according to Defendants, persons and entities who

do not have anonymity would be subjecting themselves to risk of harassment, harm, or similar

undesirable consequences that would chill if not preclude their willingness to supply the drugs or

related assistance. Plaintiffs in turn argue that disclosure of the identities is directly relevant to

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many if not all of their claims and is particularly critical to challenging the use of compounded

drugs. Specifically, Plaintiffs argue, if they cannot discover the source of the drugs, they cannot

mount a meaningful challenge to a compounded drug’s use.

As has often been the case in this enduring litigation, the parties have presented this issue

as a battle of the experts. On one side, Defendants offer the opinion evidence of security and

threat assessment expert J. Lawrence Cunningham, who has found that a substantial risk of

threats or harassment exists absent confidentiality. On the other side, Plaintiffs offer the opinion

evidence of security and threat assessment expert Thomas R. Parker, who has found that there is

not a substantial risk of threats or harassment absent confidentiality. Plaintiffs also offer the

testimony of retired professor and pharmacist Randy P. Juhl, who offered his interpretation on

federal and state laws as they relate to execution drugs and the asserted illegality of

compounding pharmacists filling orders for such drugs, and of Sister Helen Prejean, who offered

opinion testimony as an opponent of the death penalty and who opined on the beliefs and

conduct of those involved in that movement. 

All of these witnesses were only somewhat helpful. The Court finds Cunningham

perhaps more persuasive than Parker, although Parker placed much of Cunningham’s testimony

into a different context. For the most part, these individuals cancelled one another out, leaving

some of the evidence upon which they relied perhaps the most persuasive material for this Court.

Juhl was informative in some respects but presents an unusual view that the government itself

has made executions by lethal injection impossible, a minority view that once again fails to

persuade this Court. Given the notably limited weight to be afforded these witnesses, the Court

is inclined to dispose of the parties’ attempt to strike testimony on Daubert concerns in the same

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manner it was when it read the parties’ motions, which is to say much ado about nothing. The

parties devoted briefing to support striking or permitting evidence from several of the opinion

witnesses, but the parties’ arguments go more to the weight to be afforded the testimony and

declarations then to the admissibility of the same. Given this fact and the ultimately limited

value of the targeted testimony and evidence, extended discussion of the briefing would be

unproductive. This Court DENIES the unnecessary motions to exclude. (ECF No. 536, 542.) 

Although all the witnesses who were asked agree that there has not been a single known

threat against a compounding pharmacy that might supply drugs to Ohio, their conclusions vary

wildly. What the Court takes from all of the testimony involved is that some of Defendants’

assertions of burdens or prejudice connected to disclosure are largely speculative or conclusory,

if not outright hyperbolic. But the testimony also persuades the Court that this much is true:

disclosure of the information sought indeed presents a tangible burden on Defendants and would

be unduly prejudicial. 

One of Plaintiffs’ own witnesses, death penalty opponent Sister Helen Prejean, testified

that she was not aware of any death penalty opponent who would use violence to advance his or

her goals against the death penalty. She later stated that she had never met or experienced an

opponent of the death penalty who was willing to use violence on any moral issue. In other

testimony, however, Sister Prejean stated that “there will always be some extremist groups that

take a beautiful principle of religion like pro life or loyalty and love of God and translate it in an

extremist, violent way. You will find that it any group.” (ECF No. 548, at Page ID # 15157.) 

After drawing a distinction between the extremists and those who share the same core opposition

to the death penalty in a non-violent way, she testified that “[i]t will always be a mixed bag of

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how people interpret and do things using the same label.” (Id.)

The mere possibility of a fringe group of extremists does not invariably translate into a

burden or prejudice sufficient to warrant issuance of a protective order. It is nonetheless some

evidence that cannot be reasonably disregarded. Such a possibility then took a more concrete

form during the oral argument in the form of Hearing Exhibit M. 

That exhibit, which is an email sent to an Oklahoma compounding pharmacy by a citizen,

evinces an undeniable (and perhaps even faith-based) risk to pharmacies or compounders,

including the personnel that work at such entities. The exhibit reads:

Your site says nothing about pentobarbitol. Do you compound it for the state of

Missouri’s department of corrections, as has been publicly alleged in an [Associated

Press] story that ran this morning, and if so, now that the story has gone public, do

you think that is prudent? Seems to me that manufacturing a drug expressly to kill

people flies in the face of one of those commandments Moses got from Jehovah on

Sinai, but maybe I’m just being old-fashioned. Still, were I you I’d at least want to

beef up my security not that you’ve been put in the spotlight as a likely supplier and

failed to issue a flat denial. As the folks at the federal building can tell you, it only

takes one fanatic with a truckload of fertilizer to make a real dent in business as

usual. In your place, I’d either swear to the nation that my company didn’t make

execution drugs of ANY sort, and then make dang sure that’s true, or else openly

accept the burden of putting my employees and myself at unacceptable (and possibly

uninsurable) risk. Just sayin’.

(Defs. Hrg. Ex. M.) On its face, this email presents a reasonable inference, if not an express

declaration, of a threat or intimidation. If the question is whether a reasonable pharmacy owner

or compounder would feel burdened by receiving such an email, the answer is likely if not

certainly yes. And by burdened this Court means likely scared to the point of electing not to

help Ohio in the state’s lawful quest to kill.

It would obviously have been more helpful to this Court if Defendants had presented

evidence from pharmacy owners or compounders, for example, that these individuals or the

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entities involved would not work with Ohio to enable the execution process knowing of this

email or if they suspected that they would receive one like it. But such evidence is unlikely

because if pharmacy owners or compounders testified to such a position, they would be

presenting the inference that, with nondisclosure guaranteed, they would assist Ohio. Absent a

guarantee that such testimony would be protected from disclosure, those who would fear

recrimination would likely elect not to testify. 

Without such testimony, the Court is left with two considerations. One is the fact that

Defendants have submitted to this Court a privilege log that indicates the existence of persons

who have applied for statutory protection from disclosure. The existence of such confidentiality

rights applications informs the question of whether there are actually entities that likely do not

want their identities disclosed and answers whether Defendants’ concerns are wholly

speculative. The Court reaches such a qualified inference because some entities might apply for

protection even if they might assist Ohio even if confidentiality were not obtained. At the least,

the Court accepts that there are entities with an interest in assisting Ohio and an interest in

securing confidentiality.

The second core consideration is that, if an email such as the Oklahoma email (or the

threat of such an email) would produce the likely result of necessary entities being scared to the

point of electing not to help Ohio’s execution endeavors, then Defendants have demonstrated the

existence of a burden or prejudice that the discovery sought would cause. Plaintiffs argue that

the email is of little evidentiary value because there is no evidence that it was intended as a

threat and, in fact, there is some evidence supporting that it was not so intended. They note, for

example, that the author of the email included his name, that he does not know anything about

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making bombs, and that he allegedly intended the email to be a note of concern. But unlike

Plaintiffs, a pharmacist is unlikely to have the benefits of a hired investigator to discover all of

this. Actual intent is therefore not dispositive of the parties’ debate, however, when apparent

intent can provide the chilling effect on suppliers and others that Defendants seek to avoid. If a

relevant person or entity would be frightened by such an email, regardless of how it was actually

intended, then it simply does not matter whether the email’s author intended to be frightening. 

The end result can be the same. 

Plaintiffs’ framing of the protective order issue nonetheless inherently poses the question

of which must come first to warrant nondisclosure, disclosure with negative consequences or a

risk of sufficient negative consequences stemming from disclosure. Plaintiffs select the former. 

But this binary paradigm rings false. It overlooks or under plays the chicken-or-the-egg nature

of the issue before this Court today. Absent a record of prior disclosure, the question is not

necessarily just whether there have been threats made, intimidation, or harassment in Ohio, or

just whether there would likely be threats made, intimidation, or harassment if the information at

issue were disclosed. Instead, everything is at issue, and the inquiry unavoidably involves some

degree of estimating probabilities. Until information is disclosed, no one can say for a certainty

whether that disclosure would without question lead to the issues that Defendants seek to avoid. 

To require absolute proof of problematic consequences of disclosure without there having been a

disclosure therefore asks too much. There is an inherent degree of speculation that unavoidably

accompanies both Defendants’ and Plaintiffs’ positions.

Potentially buttressing the evidence presented in favor of Defendants’ burden and

prejudice arguments is the fact that Ohio has passed secrecy legislation related to executions. In

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another case, this Court previously explained that statutory scheme as follows:

This statutory framework, enacted via Substitute House Bill No. 663 (“H.B. 663”)

in November 2014, amends Ohio Revised Code § 149.43 and creates two new

statutes, Ohio Revised Code §§ 2949.221 and 2949.222.

The amendment to § 149.43 modified the definition of “public record” so that

it does not include “information and records that are made confidential, privileged,

and not subject to disclosure under divisions (B) and (C) of section 2949.221 of the

Revised Code.” Ohio Rev. Code § 149.43(A)(1)(cc).

The newly created § 2949.221 provides:

(A) As used in this section:

(1) “Person” has the same meaning as in section 1.59 of the Revised

Code.

(2) “Licensing authority” means an entity, board, department,

commission, association, or agency that issues a license to a person

or entity.

(3) “Public office” has the same meaning as in section 117.01 of the

Revised Code.

(B) If, at any time prior to the day that is twenty-four months after the

effective date of this section, a person manufactures, compounds,

imports, transports, distributes, supplies, prescribes, prepares,

administers, uses, or tests any of the compounding equipment or

components, the active pharmaceutical ingredients, the drugs or

combination of drugs, the medical supplies, or the medical equipment

used in the application of a lethal injection of a drug or combination

of drugs in the administration of a death sentence by lethal injection

as provided for in division (A) of section 2949.22 of the Revised

Code, notwithstanding any provision of law to the contrary, all of the

following apply regarding any information or record in the

possession of any public office that identifies or reasonably leads to

the identification of the person and the person’s participation in any

activity described in this division:

(1) The information or record shall be classified as confidential, is

privileged under law, and is not subject to disclosure by any person,

state agency, governmental entity, board, or commission or any

political subdivision as a public record under section 149.43 of the

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Revised Code or otherwise.

(2) The information or record shall not be subject to disclosure by or

during any judicial proceeding, inquiry, or process, except as

described in division (B)(4) of this section or in section 2949.222 of

the Revised Code.

(3) The information or record shall not be subject to discovery,

subpoena, or any other means of legal compulsion for disclosure to

any person or entity, except as described in division (B)(4) of this

section or in section 2949.222 of the Revised Code.

(4)(a) If the information or record pertains to the manufacture,

compounding, importing, transportation, distribution, or supplying of

any of the items or materials described in division (B) of this section,

the person or entity that maintains the information or record shall

disclose the information or record to the Ohio ethics commission and

the commission may use the information or record, subject to division

(B)(1) of this section, only to confirm the following:

(i) That the relationship between the person and the department of

rehabilitation and correction is consistent with and complies with the

ethics laws of this state;

(ii) That at the time of the specified conduct, the person has all

licenses required under the laws of this state to engage in that conduct

and the licenses are valid.

(b) If the Ohio ethics commission receives any information or record

pursuant to division (B)(4)(a) of this section, the commission shall

complete its use of the information or record for the purposes

described in that division within fourteen days of its receipt and shall

promptly report its findings to the director of rehabilitation and

correction.

(C)(1) If, at any time prior to the day that is twenty-four months after

the effective date of this section, an employee or former employee of

the department of rehabilitation and correction or any other

individual selected or designated by the director of the department

participates or participated in the administration of a sentence of

death by lethal injection, as provided for in division (A) of section

2949.22 of the Revised Code, subject to division (C)(2) of this

section and notwithstanding any other provision of law to the

contrary, the protections and limitations specified in divisions (B)(1),

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(2), and (3) of this section shall apply regarding any information or

record in the possession of any public office that identifies or

reasonably leads to the identification of the employee, former

employee, or other individual and the employee’s, former

employee’s, or individual’s participation in the administration of the

sentence of death by lethal injection described in this division.

(2) Division (C)(1) of this section does not apply with respect to

information or a record that identifies or reasonably leads to the

identification of the director of rehabilitation and correction or the

warden of the state correctional institution in which the

administration of the sentence of death takes place.

(D) The protections and limitations specified in divisions (B)(1), (2),

and (3) of this section regarding information and records that identify

or may reasonably lead to the identification of a person described in

divisions (B) or (C) of this section and the person’s participation in

any activity described in the particular division are rights that shall

be recognized as follows:

(1) With respect to a person that is an individual, without any

requirement for the person to take any action or specifically apply for

recognition of such rights.

(2) With respect to a person that is not an individual, the rights do not

exist unless the person requests to have the rights recognized by

applying in writing to the director of rehabilitation and correction.

The director of rehabilitation and correction by rule shall establish

the procedure according to which a person who is not an individual

may apply in writing for the rights described in divisions (B)(1), (2),

and (3) of this section. The director shall approve an application that

is submitted in compliance with the rules. A person whose

application is approved is entitled to the rights for twenty years after

the person ceases the qualifying activity as contemplated by the first

paragraph of division (B) of this section. The director shall notify

any person, who is not an individual and who is entitled to the rights,

of the application procedures.

(E) If a person or entity that, at any time prior to the day that is

twenty-four months after the effective date of this section,

participates in, consults regarding, performs any function with respect

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to, including any activity described in division (B) of this section, or

provides any expert opinion testimony regarding an execution by

lethal injection conducted in accordance with division (A) of section

2949.22 of the Revised Code is licensed by a licensing authority,

notwithstanding any provision of law to the contrary, the licensing

authority shall not do any of the following as a result of that

participation, consultation, performance, activity, or testimony by the

person or entity:

(1) Challenge, reprimand, suspend, or revoke the person’s or entity’s

license;

(2) Take any disciplinary action against the person or entity or the

person’s or entity’s licensure.

(F) A person may not, without the approval of the director of

rehabilitation and correction, knowingly disclose the identity and

participation in an activity described in the particular division of any

person to whom division (B) of this section applies and that is made

confidential, privileged, and not subject to disclosure under that

division or of an employee, former employee, or other individual to

whom division (C)(1) of this section applies and that is made

confidential, privileged, and not subject to disclosure under that

division. Any person, employee, former employee, or individual

whose identity and participation in a specified activity is disclosed in

violation of this division has a civil cause of action against any

person who discloses the identity and participation in the activity in

violation of this division. In a civil action brought under this

division, the plaintiff is entitled to recover from the defendant actual

damages, punitive or exemplary damages upon a showing of a willful

violation of this division, and reasonable attorney’s fees and court

costs.

(G) If division (B), (C), or (D) of this section applies to a person with

respect to any conduct or activity of the person occurring at a time

prior to the day that is twenty-four months after the effective date of

this section, the expiration of that twenty-four month period does not

affect, add to, or diminish the protections and limitations specified in

division (B) or (C), division (D), and division (E) of this section with

respect to their application to that person.

Ohio Rev. Code § 2949.221.

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Finally, the newly enacted § 2949.222 provides: 

(A) As used in this section, “seal a record” means to remove a record

from the main file of similar records and to secure it in a separate file

that contains only sealed records accessible only to the court.

(B) The court promptly shall order the immediate sealing of records

containing information described in division (B) or (C) of section

2949.221 of the Revised Code and the person’s participation in any

activity described in the particular division, whenever the records

come into the court’s possession.

(C) If a record containing information described in division (B) or

(C) of section 2949.221 of the Revised Code and the person’s

participation in any activity described in the particular division, is

subpoenaed or requested by a court order, the director of

rehabilitation and correction shall provide the record. If the court

determines that the record is necessary for just adjudication, the court

shall order the director to appear at a private hearing with a copy of

the record and any other relevant evidence. The information is not

otherwise subject to disclosure unless the court, through clear and

convincing evidence presented in the private hearing, finds that the

person whose identity is protected appears to have acted unlawfully

with respect to the person’s involvement in the administration of a

lethal injection as contemplated by the first paragraph of division (B)

and by division (C)(1) of section 2949.221 of the Revised Code.

Ohio Rev. Code § 2949.222.

Phillips v. DeWine, 92 F. Supp. 3d 702, 705-08 (S.D. Ohio 2015). Interpreting these statutes,

this Court previously explained that “the statutory scheme simply cuts off Ohio and its

employees as a source of specific information for both proponents and opponents of the death

penalty.” Phillips, 92 F. Supp. 3d at 711. It also specifically “cuts off government-provided

discovery as the source of the information.” Id. at 713. 

What all this means is that the identities of persons–individuals and entities that are not

individuals but successfully apply for nondisclosure protection–would not be disclosed by Ohio

and its employees without running afoul of the statutory scheme. See Ohio Rev. Code §§

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2949.221(B), (C)(1), and (D)(1) and (2); Ohio Rev. Code § 2949.222(B) and (C). If the statutory

scheme matters, then this operation matters because, at the outset of the oral hearing on the

motion for a protective order, Defendants submitted to this Court a privilege log that featured

such applications, evincing that there are actual and not just hypothetical entities that seek the

protection from disclosure afforded by the statutory confidentiality rights. Absent a protective

order, this Court would be compelling Defendants to violate the statutory scheme.

Plaintiffs urge this Court to disregard the statutory scheme on the grounds that the Court

should not recognize a state privilege as controlling in this federal forum. Plaintiffs’ premise is

that a state privilege cannot apply in a federal question case, but this position arguably forgets

that Plaintiffs have asserted numerous state law claims to which the state statutory scheme might

be relevant. This Court need not resolve the state statute issue conclusively, however, because

regardless of the statutory scheme, Defendants have presented good cause for a protective order. 

It is not because there is a state secrecy statute creating a privilege that Defendants are entitled to

a protective order, but rather because the same concerns that apparently led to the creation of the

statute exist: the burden on and prejudice to the state that disclosure presents. Any statutory

protection is simply an add-on. To be clear, the Rule 26(c) considerations warrant a protective

order, whether taken alone or in conjunction with Ohio’s secrecy statute.2

 

Plaintiffs argue that Defendants are raising Rule 26(c) concerns by proxy, conflating

burdens on and prejudice to non-party persons or entities with Defendants’ interests. This

contention ignores that the burden is on Defendants and the prejudice is a loss of the ability to

2

 This conclusion moots many of Plaintiffs’ arguments regarding application of the state

statutory scheme, including their retroactivity argument.

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pursue, much less fulfill, a lawful duty. A protective order is necessary in this case to protect

Defendants from being unduly burdened and unfairly prejudiced by Plaintiffs obtaining via

discovery the identities of those individuals and entities necessary to Ohio’s securing the drugs

or materials necessary to fulfill the lawful implementation of the death sentences imposed on

Plaintiffs and other non-party inmates. The Court does not reach this conclusion lightly, and as

with many of the issues that have been manifest in this long litigation, today’s issues presents a

close call. This Court is cognizant of the competing interests at issue here, both those presented

by the claims asserted in this case and those overarching goals inherently underlying the instant

dispute. 

The surface dispute is clear. Defendants seek to fulfill a legal duty, but can only do so if

they obtain the drugs and materials necessary to enable the implementation of their execution

protocol. Plaintiffs in turn argue that Ohio cannot obtain drugs or materials without violating the

law, and that even if they could, any meaningful challenge to the use of the drugs or materials

obtained must by necessity include the practices of the entities involved. In other words,

Plaintiffs argue, if they cannot test the drugs or materials that Ohio obtains in light of the source

and practices of the entities from which the drugs or materials are obtained, then they cannot

know precisely what to look for and cannot consequently mount a truly meaningful challenge.

The underlying dispute is also clear. Defendants argue that Plaintiffs are trying to do by

extrinsic means that which they have been unable to do in this litigation–that is, to delay further

or even end executions in Ohio by making it too logistically difficult or impossible for the state

to obtain the necessary drugs and materials. Such an end game is not the point of this litigation,

at least not from this Court’s view. Plaintiffs focus on unproven premises such as the need for

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source information to enable any meaningful testing of the execution drugs,3

 but certainly

Plaintiffs know the extended consequences and likely chilling effect of what obtaining such

source information would be. But the Court is charged with resolving the claims brought before

it and not with assisting any litigants with using the federal courts as a mechanism to obtain that

which the law currently does not or cannot afford them.

At this juncture, Plaintiffs have failed to present a persuasive case for the proposition that 

source knowledge is necessary to mount a meaningful, much less comprehensive, challenge to

Ohio’s execution protocol. Although the information Plaintiffs seek is undoubtedly of some

relevance or likely to lead to the discovery of relevant evidence, the burden on and prejudice to

Defendants as discussed above outweighs Plaintiffs’ interests. 

This is not to say that Defendants are entitled to carte blanche in their efforts to obtain

drugs and materials for executions. The parties have curiously left the issue of the full scope of

any protective order outside much of their briefing and oral arguments. But this Court is

concerned about issuing a blanket protective order that enables Defendants to exceed the scope

of Ohio’s execution protocol and secrecy statute. Given the overarching value of transparency

that most often should accompany government action, this Court concludes that Defendants are

3

 There is scant evidence supporting Juhl’s contention that source identification is

necessary for the testing that would inform the constitutional and other issues involved in this

litigation. Although it may be true that this information would help in some testing, it remains

unproven that such information is indispensable to any meaningful testing. Moreover, the need

for such testing, much less testing beyond that provided by the protocol, remains an assumption

by Plaintiffs ill-supported by persuasive evidence.

Plaintiffs offer a number of other unavailing arguments against issuance of a protective

order, including their everything-against-the-wall efforts to end executions by becoming

enforcement agents of federal and state laws despite no apparent mechanism permitting such

conduct. These arguments and the claims behind them fail to defeat the undue burden on and

prejudice to Defendants. 

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not entitled to a protective order that exceeds the scope of Ohio’s execution protocol. Rather, a

limited protective order would serve the state’s interests but also provide Plaintiffs and the

public at large with information as to what course Ohio is pursuing, even if disclosure of the

consequent details of that action are then necessarily curtailed.

The current execution protocol contemplates the use of pentobarbital and thiopental

sodium. (ECF No. 521-1, at page ID # 14167.) Any other drug that Ohio tries to obtain for

purposes of conducting executions exceeds that provided for in the Ohio Department of

Rehabilitation and Correction policy that “establish[es] guidelines for carrying out a courtordered sentence of death.” (Id. at Page ID # 14160.) A core component of this policy, or

protocol, from which there can be no departure is that “[t]he drugs required by this policy shall

be used.” (Id. at Page ID # 14162.) Thus, the moment Defendants pursue drugs or compounding

materials other than those constituting pentobarbital and thiopental sodium, Defendants are

pursuing drugs extrinsic to the protocol and are outside the protections necessary to

implementation of that protocol. 

Additionally, to whatever extent it matters, Defendants would also be operating outside

the limited scope of the state secrecy statute. Ohio Revised Code § 2949.221 provides that its

protections extend to drugs and numerous materials “used in the application of a lethal injection

of a drug or combination of drugs in the administration of a death sentence by lethal injection as

provided for in division (A) of section 2949.22 of the Revised Code.” Ohio Rev. Code §

2949.221(B). Any drug other than those provided for in Ohio’s written protocol is not a drug

that can be used in a lawful § 2949.22 execution. 

If execution by lethal injection is legal, and the United States Supreme Court has

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repeatedly said it is, then it follows that there must be some manner of carrying it out. A court

should then regard discovery that overly burdens or outright prevents a state from obtaining the

drugs, materials, or assistance needed to execute by lethal injection as suspect and consequently

drill down into the parties’ arguments on each side of the issues. The specific, albeit limited,

evidence before this Court and Ohio’s secrecy statute together present good cause for issuance of

the requested protective order. Having concluded that Rule 26(c) considerations, taken both

alone and in conjunction with Ohio statutory law, support a protective order, this Court need not

and does not discuss Defendants’ moot and likely unpersuasive argument that a general publicinterest confidentiality privilege supports nondisclosure of the protected information.

II. Conclusion

For the foregoing reasons, the Court GRANTS Defendants’ motion for a protective order

(ECF No. 530), DENIES Plaintiffs’ motion to exclude the testimony and declaration of J.

Lawrence Cunningham (ECF No. 536), and DENIES Defendants’ motion to exclude the

testimony and declaration of Randy P. Juhl (ECF No. 542). The Court therefore ORDERS that

any information or record in Defendants’ possession, custody, or control that identifies or

reasonably would lead to the identification of any person or entity who participates in the

acquisition or use of the specific drugs, compounded or not, that Ohio indicates in its execution

protocol it will use or will potentially seek to use to carry out executions is protected and not

subject to discovery.4

 This protective order is intended to extend to those persons who or entities

4

 At this time, “the specific drugs, compounded or not, that Ohio indicates in its

execution protocol it will use or will potentially seek to use to carry out executions” means

pentobarbital and thiopental sodium, compounded or not. If Ohio alters its execution protocol to

include or substitute other drugs, those drugs would fall under the scope of this protective order

unless Plaintiffs persuade this Court that the new drug(s) present some specific necessity for the

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that have not waived or forfeited its protection and who manufacture, compound, import,

transport, distribute, supply, prescribe, prepare, administer, use, or test the compounding

equipment or components, the active pharmaceutical ingredients, the execution protocol drugs or

combination of drugs, the medical supplies, or the medical equipment used in carrying out any

execution under Ohio Revised Code § 2949.22.5 This protective order governs discovery only in

this litigation and does not apply outside this litigation or (in the increasingly unlikely event)

after this litigation concludes.6

Plaintiffs have asked that if this Court enters a protective order, it then certify the issue

for immediate appeal under 28 U.S.C. § 1292(b). Although a discovery order is at issue, the

Court recognizes that the United States Supreme Court has held that “[t]he preconditions for §

1292(b) review . . . are most likely satisfied when a privilege ruling involves a new legal

source-and identity information Plaintiffs would seek.

5

 While arguing that the Court simply cannot rely on the state secrecy statute to provide

Defendants the confidentiality they seek, Plaintiffs also ask this Court to rely on that same statute

to limit any confidentiality ordered today. Putting aside that curious cognitive dissonance, the

Court is not inclined to tie the scope of its order to the statute in either regard. Instead, the Court

recognizes that if a party otherwise protected by today’s order takes action evincing a disregard

for its confidentiality, then that party has waived or forfeited coverage under this protection

order. This is because the Rule 26(c) considerations underlying today’s decision would not

apply to that individual or entity. For example, if a compounding pharmacy engaged in

advertising indicating an involvement with the execution process, for any reason including a

desire to attract death penalty proponents who might patronize the business to support a supplier

of execution drugs, then discovery could not be said to present a chilling effect supporting

confidentiality for that compounding pharmacy. Similarly, if a person other than an individual

fails to request confidentiality under the statutory scheme, that entity not only falls outside the

statute, but it also removes itself from the scope of today’s protective order.

6

 In other words, Defendants cannot assert after this case has ended that today’s

protective order enables them not to provide information sought by other litigants in future cases. 

The Court has not recognized a perpetual privilege against disclosure, but has instead granted a

limited protective order that remains subject to modification or discontinuation in this litigation. 

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question or is of special consequence, and district courts should not hesitate to certify an

interlocutory appeal in such cases.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11

(2009). This Court finds that this “order involves a controlling question of law as to which there

is substantial ground for difference of opinion and that an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” Id. 

To conclude otherwise would be to ignore the debatable and unsettled issues surrounding

today’s decision and the importance of those issues to this litigation and to Ohio’s ability to

secure drugs for the executions set to resume in 2017. If Ohio is correct and it cannot procure

the requisite execution drugs without confidentiality, then a decision against confidentiality

might lead to the end of lethal injection in the state and the ultimate termination of this case

based on mootness. The specific questions of law are apparent and include whether Ohio’s

secrecy statute applies in this litigation and whether Plaintiffs are correct that granting the

motion for a protective order means that this Court has essentially and summarily immunized the

unnamed pharmacy defendants and others from the claims asserted against them in this case. 

The consideration of these and other issues would not entail much, if any, review of the relevant

portion of the record by the court of appeals. This Court is also cognizant that upon the

undersigned’s forthcoming retirement, this litigation will transfer to another judicial officer who,

like the undersigned, would no doubt benefit substantially from the Sixth Circuit’s guidance on

the legal issues involved. 

Accordingly, the Court CERTIFIES this Opinion and Order for interlocutory appeal and

STAYS this Opinion and Order and all further proceedings before this Court pursuant to §

1292(b), except for consideration of the two pending motions for voluntary dismissal. (ECF

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Nos. 552, 587.) With the exception of the default briefing schedule related to these two motions,

this Court VACATES all other case deadlines, including those related to the recent amended and

supplemental pleadings. If Plaintiffs do not effectuate a timely appeal, the Court shall hold a

status conference and proceed to schedule new deadlines.

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE 

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