Federal court grants discovery regarding lethal injection

Today, a Magistrate in the Middle District of Florida issued an Order on motions to compel filed by death row prisoners seeking information about Florida's lethal injection.

Several prisoners on Florida’s death row have filed “nearly identical actions” in federal court against the Secretary of the Department of Corrections (FDOC) (and others) “challenging the constitutionality of Florida’s legal injection protocol.”

Defendants (state officials, who we’ll call the “State”) unsuccessfully sought to dismiss the action, and the case proceeded to discovery. Plaintiffs (prisoners) filed motions to compel the production of documents and information from the State, arguing that the State refused to comply with their obligations in responding to Plaintiffs’ discovery requests. The requests seek information regarding the drugs used in Florida’s lethal injection protocol, including the manufacturers of the drugs, information about the specific drugs purchased by FDOC, etc.

Today, a Magistrate Judge in the U.S. District Court for the Middle District of Florida issued an Order on Plaintiffs’ motions to compel requiring the State to disclose much of the requested information.

Source of Drugs

As to the identity of the manufacturers, pharmacies, and sources of the drugs, the Court said it could not say that the requested information “is not relevant” to Plaintiffs’ claim, as the State argued. Instead, the Court said that “whether a manufacturer or supplier has had issues with the safety or purity of a drug seems relevant to whether using that drug would pose a substantial risk of serious harm.” However, the Court found the State’s interest in maintaining the confidentiality of such information compelling and concluded that the State “established that the burden of disclosing the identities of the manufacturer, pharmacy, or source of the lethal injection drugs outweighs the likely benefit of that disclosure.” Weighing the interests, the Court held that the State must respond to Plaintiffs’ requests “without disclosing critical manufacturer or source identification information.”

As to information regarding the drugs possessed by FDOC (lot numbers, expiration dates, etc.) and information related to the packaging of the drugs, the Court granted Plaintiffs’ motion to compel, determining that the requested information is relevant to Plaintiffs’ Eighth Amendment claim and the State did not show that their burden in disclosing the information outweighs its relevancy. The Court did allow “appropriate redactions in the State’s production of information.

FDOC Personnel

Another category of information requested by Plaintiffs related to the FDOC personnel involved in the lethal injection process. While the Court recognized Florida’s statute “prohibiting disclosure of identifying information” of those involved in the process, it said that the statute does not, “by itself, give rise to a federal privilege.”

As to information regarding FDOC officials involved in lethal injection, the Court agreed with the State that “[t]he relevancy of” information regarding FDOC officials who adopted certain portions of the State’s lethal injection protocol “is weak at best” and denied Plaintiffs’ motion.

Further, the Court determined that information regarding the execution team “is relevant to Plaintiffs’ Eighth Amendment claim.” While the Court agreed that the State showed “a need to protect the identities of training personnel,” it said it did “not show[] a need to completely withhold general information about how the execution team is trained.” Therefore, the Court granted the motion to compel generally but allowed the State to redact identifying information of personnel.

Similarly, the Court granted Plaintiffs’ motion to compel regarding how FDOC stores and maintains lethal injection drugs but allowed the State to redact identifying information of personnel involved in those processes.

Lethal Injection Protocol

Plaintiffs requested various categories of information related to the reasoning behind FDOC’s switch in the drugs used in the lethal injection protocol in 2017. The Court determined that such information is not relevant to Plaintiffs’ claim, which focuses on the effects of the current protocol itself. The Court granted Plaintiffs’ motion to compel “only to the extent that [the State] must produce documents and information about efforts to obtain pentobarbital or compounded pentobarbital, with appropriate redactions.” The Court made the same limitation to Plaintiffs’ request for information regarding FDOC’s efforts to obtain lethal injection drugs.

Prior Executions

Plaintiffs requested information related to several prior executions that used the current lethal injection protocol. The Court found that the requested information—regarding training of FDOC personnel and the inmates—”might be helpful and relevant to Plaintiffs’ claim” and granted the motions for those requests.

As to information regarding the witnesses for the executions, the Court determined that the relevancy of the requested information was “marginal at best.” The Court granted the motions “to the extent that [the State] must produce the witness lists for these seven executions, with redactions of identifying information for victims’ family members, and denied to the extent that Plaintiffs request Defendants to produce the FDOC’s witness policies or guidelines.”

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The full Order can be downloaded here.