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In re Ohio Execution Protocol Litigation

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 21, 2019

IN RE OHIO EXECUTION PROTOCOL LITIGATION This document relates to Plaintiff Cleveland Jackson

          Edmund A. Sargus, Jr. Chief Judge

          DECISION AND ORDER DENYING MOTION TO QUASH OR MODIFY RULE 30(b)(6) SUBPOENA OF DEFENDANT OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

          Michael R. Merz United States Magistrate Judge

         This case is before the Court on Defendants' Motion to Quash or Modify the Fed.R.Civ.P. 30(b)(6) subpoena ad testificandum served upon Defendant Ohio Department of Rehabilitation and Corrections (“ODRC” or “DRC”) (“Motion to Quash, ” ECF No. 2381). Jackson has filed a memorandum contra (ECF No. 2382, citing ODRC Subpoena, ECF No. 2370-1). For the reasons stated below, the Motion to Quash is DENIED.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On July 15, 2019, Jackson propounded discovery upon all Defendants through Defendant and Southern Ohio Correctional Facility (“SOCF”) Warden Ron Erdos (Discovery Requests, ECF No. 2266-1). The parties agreed that all discovery requests would be submitted to “Erdos, who will provide answers that will be responsive as to all discovery recipients, and that any other State Actor Defendants may provide additional individualized responses as applicable.” Id. at PageID 110708 n.1. Pursuant to Fed.R.Civ.P. 34, Jackson made the following document requests

Demand For Production No. 1:
All documents, communications, and materials regarding or related to any actual or potential changes to ODRC's execution policies and procedures between January 1, 2016 and the present. This includes, but is not limited to, any documents, communications, and materials regarding or related to any effort to obtain any imported execution drugs or compounded execution drugs, and any correspondence or other documentation to or from any other agency, State or federal, regarding the possibility of obtaining or using imported execution drugs.
Demand for Production No. 2:
All documents, communications, and materials regarding or related to your responses to the Requests for Admissions and Interrogatories above. This includes, but is not limited to, all documents, communication [sic], and materials related to any of Plaintiff Jackson's alleged alternatives. This also includes any documents, communications, and materials related to the allegations and arguments asserted in the Brief of the States of Tennessee, Alabama, and Arkansas as Amicus Curiae in Support of State Appellees, Henness v. DeWine, 6th Cir. Case No. 19-3064, Doc. No. 35 (July 5, 2019).

Id. at PageID 110767.

         In addition to discovery requests under Rules 33, 34, and 36, Jackson also listed two subject matters for an anticipated Rule 30(b)(6) deposition:

Information regarding the “alternative execution manner or method” requirement under Baze/Glossip/Bucklew, as to Jackson's alleged first four alternative execution manners and methods in all respects. This includes, but is not limited to, matters related to the availability of his alleged alternatives, such as whether those alternatives are or should be with ordinary transactional effort accessible and readily implemented relatively easily and reasonably quickly. This also includes, but is not limited to, matters related to the comparative risks of severe pain and needless suffering posed by Ohio's current three-drug midazolam protocol and Jackson's alleged alternatives. This also includes, but is not limited to, DRC's knowledge about matters such as IV-injected overdoses of midazolam as used in executions, the effects of those overdoses on the condemned inmates, and their intention to continue using the three-drug midazolam protocol rather than any other alternative.
Information regarding the factual bases for the arguments and allegations asserted in the Brief of the States of Tennessee, Alabama, and Arkansas as Amicus Curiae in Support of State Appellees, Henness v. DeWine, 6th Cir. Case No. 19-3064, Doc. No. 35 (July 5, 2019).

Id. at PageID 110768.

         On August 6, the parties agreed that the Rule 30(b)(6) deposition of ODRC would take place the week of August 19, 2019 (Motion to Quash, ECF No. 2381, PageID 114842). On August 14, 2019, Defendants responded to Jackson's discovery requests, and Erdos signed the verification page on behalf of Defendants (ECF No. 2348, PageID 114453). On August 16, 2019, Defendants emailed counsel for Jackson, asking him to prepare and transmit a list of Rule 30(b)(6) deposition topics, “describ[ing] with reasonable particularity the matters for examination . . . by 4:00pm (sic) on Monday August 19, 2019.” (ECF No. 2382-1, PageID 114858). At 4:23 p.m. on August 19, counsel for Jackson emailed counsel for Defendants with a copy of the subpoena ad testificandum it was serving on DRC (Subpoena, ECF No. 2370-1; Email, ECF No. 2382-2, PageID 114859-60). The subpoena listed the following topics for deposition: (1) “Defendants' purported answers provided in Defendant Erdos's Responses (ECF No. 2348) to Jackson's written discovery requests”; (2) “the effects of Ohio's current lethal injection protocol on the condemned inmate”; (3) the alternative methods alleged by Jackson, including their bases for claiming that the alternative methods of firing squad, shooting at the brainstem, secobarbital, and the four-drug combination are unavailable, not feasible or readily implemented, unlikely to significantly reduce the risk of severe pain and suffering vis-à-vis the current protocol, and any other reasons for which Defendants could ...


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