United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This Order relates to All Plaintiffs
A. SARGUS, JR. CHIEF JUDGE.
DECISION AND ORDER GRANTING IN PART PLAINTIFFS'
MOTION FOR AN ORDER REGARDING DISCOVERY
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
§ 1983 capital case is before the Court on
Plaintiffs' Motion for Discovery Order (ECF No. 1145),
Defendants' Memorandum in Opposition (ECF No. 1162) and
Plaintiffs' Reply in Support (ECF No. 1172). Counsel made
additional argument about the Motion during th4e telephonic
status conference on August 29, 2017.
Released to the Media
seek first to have the Court reduce to writing an oral order
made by District Judge Gregory Frost on April 29, 2010, while
this case was assigned to him which required Defendants to
produce to Plaintiffs' counsel materials related to any
particular execution no later than the time when those
materials were provided to any members of the media.
Defendants note that there is no record evidence of this
order, but do not deny that Judge Frost made it.
of record proof of the content of any such oral order,
Plaintiffs have shown good cause for expedited discovery of
“materials related to any particular execution which
are provided to the media, ” to wit, that the schedule
of executions set over the next several years does not allow
enough time between executions for discovery to proceed on
the schedule ordinarily involved in civil litigation. To the
extent that each completed execution provides or may provide
evidence relevant to the claims of the next person scheduled
for execution, the usual thirty-day response period is too
counterargument is that there is insufficient personnel in
the Attorney General's Capital Crimes Unit to perform the
required review of documents to release them on the schedule
Plaintiffs request, to wit, four trial attorneys and one
paralegal “to ensure that [responsive materials] are
properly redacted or withheld and identified on a privilege
log.” (ECF No. 1162, PageID 43566).
short answer to this counterargument is that all of the
concerns which would caution against release to
Plaintiffs' counsel (“inadvertent production of
material that is sensitive, privileged, or protected”)
apply also to release to the media. If material is released
to the media, any privilege relating to that material would
be waived by that release, so no further review by counsel
would be needed before providing the same material to
longer or deeper answer is that the Defendants cannot escape
discovery obligations in this case by pleading lack of
resources. Capital punishment is a very expensive government
program and most of the expense is litigation-related. The
litigation is specialized and therefore managed on both sides
by specialists. Counsel make very few concessions to the
demands of the other side. As Judge Frost earlier put it,
“[i]f Ohio is going to be in the business of executing
individuals and if Defendants are interested in defending
themselves in this lawsuit, then the state actors involved
must accept the consequent burdens that this at time
entails.” (ECF No. 396, PageID 11901). The Court
appreciates that the particular Defendants in this case are
under orders from various state judges to execute those whose
death sentences have survived appellate and habeas review.
But death sentences cannot be unfunded mandates. If Ohio
wishes to proceed with executions at the currently scheduled
rate, it must adequately fund defense of this litigation. So
far as this Court is aware, there is no shortage of
employable attorneys or paralegals.
the media are not legally entitled to any consideration
greater than that afforded the litigants. Assuming that
materials furnished to the media are “public
records” within the meaning of the Ohio Public Records
Act (Ohio Revised Code § 149.43), Defendants would be
required to produce them, but not instantaneously
(“promptly prepared and made available”).
Defendants may produce materials to the media faster than the
Public Records Act would require in the interest of
governmental transparency, but they have no less
responsibility to be transparent to Plaintiffs' counsel.
During the telephone conference on August 29, 2017,
Defendants confirmed their willingness to provide these
materials to those of Plaintiffs' counsel who are present
at the Southern Ohio Correctional facility for any execution
at the same time they are provided to the press and
Defendants are hereby ORDERED to do so. The same materials
shall be furnished to counsel for any Plaintiff who is not
present for the execution within twenty-four hours after they
are furnished to the press.
second request is for “a new order reflecting the same
expedited discovery production deadlines in Judge Frost's
order issued December 23, 2014 (ECF No. 507), namely that
Defendants must produce any existing supplemental discovery
materials within [fourteen] calendar days of the [entry of]
the new order and must produce any supplemental discovery
materials created on or after the date of the order within
[seven] calendar days of the creation of such
materials.” (Motion, ECF No. 1145, PageID 43398; Reply,
ECF No. 1172, PageID 44309).
no explicit reference is made to the Rule, the Court
confirmed during the August 29, 2017, telephone conference
that the parties in this section of their argument discussing
supplementation are referring to the obligation imposed by
Fed.R.Civ.P. 26(e) on a party responding to a discovery
request to supplement a response to a discovery request
discovered to be incomplete or incorrect “in a timely
manner.” That is, the Court does not understand
Plaintiffs to be seeking shortened response times on new
discovery requests made in the case. As to any such new
requests, Defendants are entitled to the response times
provided in the Federal Rules of Civil Procedure absent a
court order shortening the time with a showing of good cause
as to any such new request.
as to supplemental production as defined in Fed.R.Civ.P.
26(e), Plaintiffs' request is quite reasonable. That is
to say, given the existing execution schedule, production of
all now-existing supplemental material within fourteen days
of this Order and production of such material ...