United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to Plaintiffs Phillips, Tibbetts, and Otte
A. Sargus, Jr. Magistrate Judge
Michael R. Merz United States Magistrate Judge
case is before the Court on Defendants' Motion for
Protective Order to Require the Partial Redaction of the
December 2016 Depositions of Defendants Stephen Gray, Richard
Theodore, and Anonymous Execution Team Members No. 9, 17, 21,
31, and 32 (ECF No. 975). Plaintiffs opposed the Motion (ECF
No. 1006) and Defendants have filed a Reply in support (ECF
this Motion has been ripe for decision since March 3, 2017,
the Court had not reached it because of the pendency of other
capital litigation matters, principally motions to add claims
under Hurst v. Florida, 577 U.S.__, 136 S.Ct. 616
(2016), and the most recent decision of the Sixth Circuit in
the Stanley Adams habeas corpus litigation in the Northern
District of Ohio, Adams v. Bradshaw, 826 F.3d 306
(6th Cir. June 13, 2016), cert. den. sub. nom.
Adams v. Jenkins, 137 S.Ct. 814, 106 L.Ed.2d 602 (2017).
Based on the request of Plaintiffs during the telephone
scheduling conference on May 23, 2017, the Court is treating
some of the proposed redactions to the Stephen Gray
deposition on an expedited basis in connection with the
parties' briefing for rehearing en banc in Sixth Circuit
case No. 17-3076.
Gray deposition was filed under seal (ECF No. 905-1). The
portions of the Gray deposition at issue in this expedited
decision are PageID 30226-27 and 30255.
parties note, the depositions taken during the contracted
discovery period preceding the January 2017 preliminary
injunction hearing were permitted to be filed under seal
provisionally without prejudice to eventual full
consideration of whether they should be maintained under
seal. Although the Court indicated it would entertain a
motion from Plaintiffs to unseal (ECF No. 851 granting ECF
No. 849), ultimately the Defendants became the moving party
and sought to maintain the deposition under seal (ECF No.
opposing that Motion, Plaintiffs argue first that the Court
relied on Mr. Gray's deposition testimony in granting
preliminary injunctive relief (AmMemoOpp, ECF No. 1006,
PageID 38753, citing Decision and Order, ECF No. 948, PageID
32229). The relevant passage reads:
There remains the possibility that Ohio can obtain the active
pharmaceutical ingredient of pentobarbital and have it made
into injectable form by a compounding pharmacy. Deposition
testimony established that, to do so, Ohio requires an import
license from the federal Drug Enforcement Administration and
that it has an application for such a license pending, but
that it has no indication when a decision on that application
might be made.
Id. The Court plainly relied on some deposition
testimony in granting preliminary injunctive relief, although
no record reference is given in the Decision and Order.
request of Defendants and with the consent of Plaintiffs, the
Magistrate Judge presided at Mr. Gray's deposition so
that prompt rulings could be made on confidentiality and
attorney-client privilege questions; Mr. Gray is in-house
counsel for the Ohio Department of Rehabilitation and
Corrections. (ECF No. 905-1, PageID 30178.) At the time of
the deposition, District Judge Frost's decision upholding
Ohio's lethal injection secrecy statute was still on
appeal; In re: Ohio Execution Protocol Litig., (Fears v.
Kasich), 845 F.3d 231 (6th Cir. 2016), was
not decided until December 30, 2016, several weeks after the
pages PageID 30226, 30227, and 30255 of the deposition,
Defendants' counsel Mr. Madden, made repeated objections
which the Magistrate Judge understood were based on the
secrecy statute and which were overruled because the
Magistrate Judge concluded that truthful answers would not
violate the statute. (ECF No. 905-1.) Technically, those
rulings were made with the Magistrate Judge presiding as the
officer before whom the deposition was being taken. Although
the deposition took place in a courtroom in the Joseph P.
Kinneary United States Courthouse in Columbus, Ohio, that was
merely as a matter of convenience to the litigants. The
deposition was not an open court proceeding to which the
public has a presumptive right of access. In fact, although
the courtroom was not locked, no person who was not
associated with litigating the case and bound by the
confidentiality order was present at any time.
those rulings were technically made in the course of
discovery, the Court finds no reason to depart from them in
considering whether these three pages of deposition testimony
should be made available to the public. Ohio Revised Code
§ 2949.221(B) protects “any information or record
in the possession of any public office that identifies or
reasonably leads to the identification of the person”
who engages in certain activities described in that statute.
The information disclosed by Mr. Gray on those three pages
does not meet that description.
rightly note the importance of making public matter relied on
by a court in reaching a decision, whether it is open court
testimony or deposition testimony. (AmMemoOpp, ECF No. 1006,
PageID 38753, citing Brown & Williamson Tobacco Corp.
v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983),
and Charvat v. EchoState Satellite, LLC, 269 F.R.D.
654, 656 (S.D. Ohio 2010)(Abel, M.J.). The unsealing of these
three pages meets that requirement without compromising the
anonymity of person who have requested that protection under
Ohio Revised Code § 2949.221.
PageID 30226-27 and 30255 from the deposition of Stephen Gray
are ordered unsealed. Plaintiffs shall promptly file ...