IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
)
)
)
In re: Missouri Department of Corrections. )
)
)
)
)

Case No. 16-3072
Related Cases:
W.D. Mo.: 2:16-MC-09005
S.D. Miss.: 3:15-CV-00295

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF
PROHIBITION OR MANDAMUS
Proposed Intervenor M7, for its Motion for Leave to File Petition for Writ of
Prohibition or Mandamus, states as follows:
1.

On July 7, 2016, the Missouri Department of Corrections

(“Department”) filed a Petition for Writ of Prohibition or Mandamus, seeking an
order prohibiting the enforcement of a subpoena requiring the disclosure of M7’s
identity as a supplier of drugs used for lethal injections for executions in Missouri.
The Department filed its Supplemental Petition for Writ of Mandamus/Prohibition
on July 21, 2016 (collectively referred to as the “Writs”).
2.

On September 2, 2016, this Court entered its Order denying the Writs.

3.

On September 7, 2016, the Department filed its Petition for Rehearing

or Rehearing En Banc.

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 4.

On September 9, 2016, M7 filed its Motion to Intervene along with

M7’s Petition for Rehearing or Rehearing En Banc, asking the Court to allow M7
to intervene and rehear the Writs in order to permit M7 the opportunity to assert its
First Amendment rights.
5.

On September 13, 2016, this Court granted M7’s Motion to Intervene

and granted the petition for panel rehearing. The Court also granted M7 the right
to submit additional evidence on or before September 23, 2016.
6.

In accordance with this Court’s September 13, 2016 Order, M7

desires to submit additional evidence for the Court’s consideration.
7.

In addition to submitting new evidence in support of the Department’s

Writs, M7 seeks leave to file its own Petition for Writ of Prohibition or Mandamus
in order to formally assert its rights and seek an order from this Court prohibiting
the enforcement of the subpoena.
8.

Respondents Ricky Chase and Richard Jordan will not be prejudiced

by the granting of this motion as they were provided, pursuant to this Court’s
September 21, 2016 Order, until September 30, 2016 to respond to the Writs.
9.

Conversely, if M7 is not permitted to file a Petition for Writ of

Prohibition or Mandamus in this matter, it will deprive M7 of an opportunity to
assert its independent rights as only the Department’s Writs are currently pending
before this Court.
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 10.

M7’s Proposed Petition for Writ of Prohibition or Mandamus is filed

contemporaneously herewith.

By:

/s/ Aaron W. Sanders
Teresa Dale Pupillo, #42975
Aaron W. Sanders, #16-0219
120 South Central Ave., Suite 1500
St. Louis, Missouri 63105
(314) 863-1500
(314) 863-1877 (facsimile)
tpupillo@bbdlc.com
asanders@bbdlc.com

Counsel for Intervenor M7

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 CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 23rd day of September, 2016,
the above was filed with the Clerk of the Court for the United States Court of
Appeals for the Eighth Circuit under the CM/ECF system. Participants in the case
who are registered EM/ECF used will be served by the CM/ECF system.
/s/ Aaron W. Sanders

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 IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
)
)
In re: Missouri Department of Corrections. )
)
)
)
)
)

Case No. 16-3072
Related Cases:
W.D. Mo.: 2:16-MC-09005
S.D. Miss.: 3:15-CV-00295

M7’s PETITION FOR WRIT OF PROHIBITION OR MANDAMAS

Respectfully submitted,
BLITZ, BARDGETT & DEUTSCH, L.C.

Teresa Dale Pupillo, #42975
Aaron W. Sanders, #16-0219
120 South Central Ave., Suite 1500
St. Louis, Missouri 63105
(314) 863-1500
(314) 863-1877 (facsimile)
tpupillo@bbdlc.com
asanders@bbdlc.com
Counsel for Intervenor M7

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 I.

Introduction
At issue in this matter is whether the discovery process can be used to find

out the names of lethal chemical suppliers so that anti-death penalty activists may
harass and boycott those suppliers in an effort to coerce them into not supplying
lethal chemicals. As with other controversial topics such as abortion, politics or
same-sex marriage, the issue of the appropriateness of the death penalty engenders
strong feelings on both sides of the issue. The United States Constitution has long
protected the advocacy of both public and private points of view, particularly
controversial ones, by its guarantee of the freedoms of expression, speech and
association through the First Amendment.

See U.S. CONST. amend. I.

That

protection applies regardless of which point of view a speaker advocates, and First
Amendment protections cannot be discarded simply because one side does not
agree with the other’s viewpoint. Moreover, the United States Supreme Court has
“repeatedly held that compelled disclosure [of an individual’s identity] in itself,
can seriously infringe on privacy of association and belief guaranteed by the First
Amendment.” Buckley v. Valeo, 424 U.S. 1, 64 (1976).
As in the instant case, where a discovery request implicates First
Amendment rights, the party seeking discovery must show that the information
sought is related to a compelling government interest that outweighs any burden on
protected rights. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1147, 1160-61 (9th
2

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 Cir. 2009). Here, Respondents purport to seek the identity of M7 in order to find
an available alternative method of lethal injection in the state of Mississippi.
However, M7 will not sell lethal chemicals without anonymity so M7’s identity is
irrelevant to the Mississippi proceeding. See Declaration of M7 ¶ 6, 7 (Ex. A to
M7’s Petition for Rehearing or Rehearing En Banc) (hereinafter “M7 Declaration
I”). Thus, Respondents’ cannot establish a sufficient need for the information so as
to counterbalance the infringement of M7’s rights.
Of even greater concern, however, is that it is likely that Respondents’
purported reason for obtaining the information is nothing more than a sham. The
fact that the identities of chemical suppliers are sought so that anti-death penalty
proponents may harass and attempt to coerce suppliers into not providing the drugs
has been freely admitted by litigants seeking this information in other cases before
the Eighth Circuit. See In re Lombardi, 741 F.3d 888, 889-890 (8th Cir. 2014).
Respondents’ desire for the identities of chemical suppliers in order to coerce those
who do not agree with their views is not a compelling government interest.
Instead, it is the very reason why First Amendment protections are provided.
Thus, M7 respectfully requests that this Court grant a writ of prohibition or
mandamus quashing the District Court’s order allowing discovery which would
lead to the disclosure of the identity of M7.

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 II.

Background Facts and Procedural History
In this case, Mississippi death row inmates have served a third-party

subpoena on Missouri in order to discover M7’s identity.

The Missouri

Department of Corrections (“Department”) filed a motion to quash in the United
States District Court for the Western District of Missouri. The District Court
denied the motion and the Department sought mandamus review from a panel of
the Court. On September 2, 2016, the panel declined to intervene. M7 first
learned of the existence of the subpoena, the foregoing proceedings and the
existence of the very real threat that its identity would be disclosed on September
2, 2016 when it was informed of these matters by the Department.

See M7

Declaration I ¶ 4.
On September 9, 2016, M7 filed its Motion to Intervene along with M7’s
Petition for Rehearing or Rehearing En Banc, asking the Court to allow M7 to
intervene and rehear the Writs in order to permit M7 the opportunity to assert its
First Amendment rights. On September 13, 2016, this Court granted M7’s Motion
to Intervene and granted the petition for panel rehearing. The Court also allowed
M7 the right to submit additional evidence on or before September 23, 2016.
Concurrent with submitting additional evidence, M7 has filed its Motion for Leave

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 to File Petition for Writ of Prohibition or Mandamus so that M7 may formally
assert its rights in this matter.
III.

Argument
A. The Applicable Standard

The exceptional circumstances presented by this case warrant this Court
exercising its jurisdiction to issue a writ of mandamus. See Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380 (2004). To obtain a writ of mandamus, the petitioning
party must satisfy two prerequisites: (1) entitlement to the writ must be clear and
indisputable, and (2) there must must be ‘no other adequate means to attain the
relief he desires. See Cheney, 542 U.S. at 380-81. As set forth below, M7’s
entitlement to the writ is both clear and compelling and M7 has no adequate means
to otherwise obtain relief.
B. M7’s Entitlement To Relief Is Clear and Compelling Because
The Disclosure Of Information Regarding M7’s Identity Is An
Undue Burden on M7 And M7’s Identity Is Not Relevant.
a. Disclosure of M7’s Identity is an Undue Burden.
Under Federal Rule of Civil Procedure 45(d)(3)(A)(iv), a third-party
subpoena must be quashed when it presents an undue burden on the non-party.
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197
F.3d 922, 925 (8th Cir. 1999). Here, there can be no doubt that the subpoena

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 places an undue burden on M7 given that it is M7’s identity as a supplier of lethal
chemicals that will be revealed if the subpoena is not quashed.
Courts have recognized that revealing the identity of the supplier often leads
to pressure from death-penalty opponents to pressure and harass drug suppliers to
refuse to sell drugs used for lawful executions. For example, in In re Lombardi,
741 F.3d 888, 894 (8th Cir. 2014), the Eighth Circuit cited to a letter in the record
“from a compounding pharmacy in Texas that demanded the Texas Department of
Criminal Justice return a supply of compounded pentobarbital sold for use in
executions, because of a ‘firestorm,’ including ‘constant inquiries from the press,
the hate mail and messages,’ that resulted from publication of the pharmacy’s
identity.” Indeed, the plaintiffs in the underlying case in In re Lombardi, a group
of death row inmates in Missouri, alleged that maintaining confidentiality
prevented “‘the suppliers’ associations, customers, and prescribing or referring
physicians from censoring or boycotting them,’ and unreasonably restricts the
associations of health-care professionals ‘from de-certifying or otherwise
censuring them or boycotting them.’” Id. at 889-90. See also Zink v. Lombardi,
783 F.3d 1089, 1106, 1113 (8th Cir. 2015) (en banc); Landigran v. Brewer, 625
F.3d 1132 (9th Cir. 2010) (noting that twenty-four hours after the state attorney
general conceded that lethal drug was imported from Great Britain, one journalist

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 suggested that the supplier might be criminally liable under EU regulations)
(dissenting opinion).
M7 has safety concerns with respect to M7’s physical well-being, as well as
the safety of those close to M7, and M7’s economic well-being. Specifically, M7
fears that should its identity be revealed, M7 will face physical threats and
economic sanctions at the hands of death penalty opponents, including boycotts of
M7’s business as well as harassment of M7’s vendors and customers. Indeed,
these very purposes have been acknowledged, and even celebrated, by opponents
of the death penalty as an effective way to intimidate and scare away lethal
chemical suppliers from exercising lawful economic activity. See, e.g., Exhibit 5
to September 23, 2016 Declaration of M7 (attached to the Notice of Additional
Evidence as Exhibit A1 and hereafter referred to as “M7 Declaration II”); Exhibit 6
to M7 Declaration II (expressing a desire to “target drug companies”); Exhibits 8,
9, and 11 to M7 Declaration II (advocacy groups urging investors to stay clear of
companies whose medicines are used in executions); Exhibit 17 to M7 Declaration
II at ¶¶383-84 (indicating a desire to use a pharmacist’s identity to censure and
boycott the pharmacy).
M7 is aware of similar conduct occurring to other suppliers whose identity
has been revealed as a provider of lethal chemicals. For instance, an Oklahoma
pharmacy providing chemicals for use in executions in Missouri received a threat
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 hinting at a possible attack by a “fanatic with a truckload of fertilizer” that could
“make a real dent in business as usual.” See Exhibit 1 to M7 Declaration II;
Exhibit 3 to M7 Declaration II.

In addition to threats of physical violence,

suppliers are also likely to face a plethora of harassing messages if its identity is
revealed. See, e.g., Exhibit 2 to M7 Declaration II. This has led other suppliers to
share M7’s concerns and no longer supply the drugs.

See Exhibit 4 to M7

Declaration II.
M7’s fears are supported by more than M7’s own subjective concerns for
M7’s safety and well-being. Experts in similar cases have agreed that revealing
the identity of a lethal drug supplier creates a substantial threat to the supplier. The
executive Director of the Texas Department of Criminal Justice, Brad Lingston,
has indicated a belief that “pharmacies and other suppliers who supply lethal
injection drugs to [the Department] face a substantial threat of physical harm if
their identity is disclosed.” See Exhibit 3 to M7 Declaration II. Mr. Livingston
has also cited examples of “hate mail and threats to the pharmacists” and
concluded that “revealing the identity of pharmacists, pharmacies, other drug
suppliers, and those involved in the supply of drugs, including the drug testing
company, would only serve to jeopardize their personal physical safety and the
public safety.” See Exhibit 13 to M7 Declaration II. Similarly, the Executive
Director of the Texas Department of Public Safety, Steven McGraw has assessed,
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 based on his years of experience in assessing threats, “that there is absolutely a
substantial threat of physical harm that would result from the release of the name
of the supplier of the execution drug.” See Exhibit 14 to M7 Declaration II. Mr.
McGraw has also stated:
Pharmacies by design are easily accessible to the public and present a
soft target to violent attacks. It is our assessment that publicly linking
a pharmacy or other drug supplier to the production of controlled
substances to be used in executions presents a substantial threat of
physical harm to the pharmacy, other drug supplier and its personnel
and should be avoided to the greatest extent possible.
See Exhibit 12 to M7 Declaration II. Mr. McGraw and Mr. Livingston have both
provided testimony concerning the threat to pharmacies that arises out of revealing
the identity of a drug supplier. See Exhibits 15 and 16 to M7 Declaration II.
Evidence of the threats and harassment M7 will be subjected to is not left
merely to the experiences in other cases referenced above.

J. Lawrence

Cunningham, an expert security consultant, has analyzed the threat to M7 should
M7’s identity be revealed.

Mr. Cunningham’s vast experience as a 20-year

member of the United State Secret Service with an additional 21 years of
experience in performing security-consulting services, along with his review of
pertinent data and information, helped Mr. Cunningham formulate his opinions on
the threat to M7. See J. Lawrence Cunningham Declaration, attached to M7’s
Notice of Additional Evidence as Exhibit B1. Mr. Cunningham also noted past
examples of violence and indicated that “officials involved in controversial
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 actions” are often involved in “a pattern of escalating risk” and are “vulnerable to
acts of violence, intimidation, or harassment.” Id. Ultimately, Mr. Cunningham
has opined to a reasonable degree of professional certainty that withholding the
identities of person engaged in the supply of lethal drugs is necessary to ensure the
supplier’s safety and security against physical harm or harassment. Id. at ¶29. He
also opines that “there is a significant and substantial threat of physical harm to the
compounding company or retail pharmacy, delivery personnel and pharmacist, as
well as others in the vicinity of the compounding company or retail pharmacy if
the identity of the compounding company, pharmacy, or pharmacist is publicly
disclosed.” Id. at ¶30.
Finally, also weighing against disclosure is the fact that M7 agreed to
provide lethal chemicals with a reasonable expectation that its identity would be
kept confidential.

See M7 Declaration I, ¶ 3.

M7 agreed to provide lethal

chemicals based on assurances from the Department that its identity would be kept
confidential. See id.

Moreover, M7 relied on MO. REV. STAT. §546.720 in

agreeing to provide lethal chemicals. See id. Pursuant to that statute, the Director
selects an execution team, whose identities are to be kept confidential. See MO.
REV. STAT. §546.720. The Director has named the supplier of lethal chemicals to
Missouri’s execution team. In re Lombardi, 741 F.3d at 889.

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 Based on the foregoing, there can be no doubt that the disclosure of M7’s
identity in response to Respondents’ subpoena places an undue burden on M7 and
should be quashed.
b. The Requested Information is Not Relevant.
Not only does the subpoena place an undue burden on a non-party, the
requested information—namely the identity of M7—is not relevant to the
Mississippi proceeding. The burden of demonstrating relevance is on the party
seeking discovery. See Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.
1992).

United States Supreme Court precedent requires that the Mississippi

inmates propose an alternative method of execution that is “available.” Glossip v.
Gross, 135 S. Ct. 2726, 2738 (2015). M7’s identity is not relevant as an alternative
source for lethal chemicals because M7 will not supply lethal chemicals to the state
of Mississippi if its identity is revealed. See M7 Declaration I, ¶ 7. In fact, M7
will not supply lethal chemicals at all if its identity is revealed. See id.
Thus, even under basic principles regarding third-party discovery, the
subpoena seeking the identity of M7 should be quashed. However, as set forth
below, the discovery sought implicates M7’s First Amendment rights, and thus, the
standard for disclosing M7’s identity is even more rigorous and this Court should
direct the District Court to grant the motion to quash.

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 C. M7’s Identity is Protected By The First Amendment.
a. M7’s Sale of Lethal Chemicals Implicates the First
Amendment Rights of Freedoms of Speech, Association
and Expression.
The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech...or the right of the people peaceably to
assemble.” U.S. CONST. AMEND. I. The protections of the First Amendment have
been construed broadly “to assure [the] unfettered interchange of ideas for the
bringing about of political and social changes desired by the people.” Roth v.
United States, 354 U.S. 476, 484 (1957). The right to act in support of, or against,
any particular social or political issue is one that has been strongly protected. See
John Doe 1 v. Reed, 561 U.S. 186, 194-95 (2010) (compelled disclosure of
signatory information on referendum subject to First Amendment review because
“[a]n individual expresses a view on a political matter when he signs a petition
under … referendum procedure.”); McIntyre v. Ohio Elections Comm’n, 514 U.S.
334, 346-47 (1995) (First Amendment protects the handing out of leaflets in the
advocacy of a politically controversial viewpoint which is the essence of First
Amendment expression). “[T]he expression of a political view implicates a First
Amendment right.” John Doe 1, 561 U.S. at 195. Moreover, the expression of a
political view is afforded the highest level of protection under the First

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 Amendment.

Meyer v. Grant, 486 U.S. 414, 422, 425 (describing the First

Amendment protection of “core political speech” to be “at its zenith”).
Here, M7’s sale of lethal chemicals to the Department is motivated by M7’s
political views with respect to the death penalty. See M7 Declaration II, ¶ 3. The
sale of such chemicals is an expression of political views, no different than signing
a referendum petition or selling a t-shirt. Thus, M7’s actions in expressing its
views regarding the death penalty through the sale of lethal chemicals, which
necessarily involves communications and speech, are protected under the First
Amendment.
The fact that M7’s expression of political views involves a commercial
transaction does not diminish M7’s First Amendment rights. Numerous courts,
including the United States Supreme Court, have held that expressive materials,
speech and associations do not lose their First Amendment protection merely
because they are offered for sale. See, e.g., Heffron v. International Soc. for
Krishna Consciousness, Inc., 452 U.S. 640 (1981) (no dispute that the oral and
written dissemination of the Krishnas’ religious views and doctrines is protected by
the First Amendment and that the protection is not lost because the written
materials are sold instead of distributed); Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council Inc., 425 U.S. 748 (1976) (advertisements by
pharmacists entitled to First Amendment protection); Ayers v. City of Chicago, 125
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 F.3d 1010, 1014 (7th Cir. 1997) (“there is no question that the T-shirts are a
medium of expression prima facie protected by the free-speech clause of the First
Amendment, and they do not lose their protection by being sold rather than given
away”); Gaudiya Vaishnava Soc’y v. City and County of San Francisco, 952 F.2d
1059, 1064 (9th Cir.1990) (sale of merchandise in conjunction with other activities
to disseminate organization's message is fully protected speech); ISKCON of
Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C. Cir. 1995) (citing Virginia State Bd.
of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
As the ISKCON Court noted, “Indeed, the Court long ago reminded us ‘that the
pamphlets of Thomas Paine were not distributed free of charge.’” 61 F.3d at 954
(quoting Murdock v. Pennsylvania, 319 U.S. 105 (1943)).
Indeed, in Village of Schaumburg v. Citizens for a Better Environment, 444
U.S. 620, 632 (1980), the United States Supreme Court noted, “[S]olicitation is
characteristically intertwined with informative and perhaps persuasive speech
seeking support for particular causes or for particular views on economic, political,
or social issues and . . . without solicitation the flow of such information and
advocacy would likely cease.”
b. The First Amendment Protects M7’s Anonymity.
Furthermore, a component of the First Amendment is the right to speak or
express oneself with anonymity. See, e.g., Buckley v. American Constitutional
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 Law Found., 525 U.S. 182 (1999) (invalidating on First Amendment grounds, a
Colorado statute that required initiative petition circulators to wear identification
badges); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (“recognizing
tradition of anonymity in the advocacy of political causes” in overturning on First
Amendment grounds Ohio law that prohibited distribution of campaign literature
that did not contain the name and address of the person issuing the literature);
Talley v. State of California, 362 U.S. 60 (1960) (First Amendment violated by
requirement that publicly distributed handbills contain the names of authors and
other involved persons). “The decision in favor of anonymity may be motivated
by fear of economic or official retaliation, by concern about social ostracism, or
merely by a desire to preserve as much of one’s privacy as possible.” McIntyre,
514 U.S. at 341-43.
First Amendment concerns are particularly heightened where there is fear of
reprisal or harassment as there is here. In NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 461 (1958), the Supreme Court held that Alabama could not compel
the NAACP to disclose the names of its membership. There, the NAACP showed
that on past occasions revelation of the identity of its rank and file members had
exposed these members to economic reprisal, loss of employment, threat of
physical coercion, and other manifestations of public hostility. 357 U.S. at 462.
“Under these circumstances, we think it apparent that compelled disclosure of
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 petitioner’s Alabama membership is likely to affect adversely the ability of
petitioner and its members to pursue their collective effort to foster beliefs which
they admittedly have the right to advocate, in that it may induce members to
withdraw from joining it because of fear of exposure of their beliefs shown through
their associations and of the consequences of this exposure.” Id. at 462-63.
The Supreme Court found that a court order to compel production of
identities in such a situation that threatens fundamental First Amendment freedoms
of speech or assembly “is subject to the closest scrutiny.” Id. at 461. The Court
further stated, “It is immaterial whether the beliefs sought to be advanced . . .
pertain to political, economic, religious or cultural matters.” Id. at 460-61. To
survive “the closest scrutiny,” the interest in subordinating First Amendment rights
“must be compelling.” Id. at 463. See also John Doe #1 v. Reed, 561 U.S. 186,
200 (2010) (“In related contexts, we have explained that those resisting disclosure
can prevail under the First Amendment if they can show ‘a reasonable probability
that the compelled disclosure will subject them to threats, harassment, or reprisals
from either governmental officials or private parties.’”) (citing Buckley v. Valeo,
424 U.S. 1, 74 (1976)).
Not only has the Supreme Court recognized that First Amendment rights are
present in commercial transactions, and may be subject to the highest level of
scrutiny where they implicate political views, but courts have also recognized that
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 anonymity with respect to such transactions is protected.

“[T]he invasion of

privacy of belief may be as great when the information sought concerns the giving
and spending of money as when it concerns the joining of an organization, for
‘[f]inancial transactions can reveal much about a person’s activities, associations,
and beliefs.’” Buckley, 424 U.S. at 64-66 (quoting California Bankers Assn. v.
Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., concurring)). The Court found that
disclosure “will deter some individuals who otherwise might contribute” and “in
some instances . . . may even expose contributors to harassment or retaliation.” Id.
at 68. Finding that “[t]hese are not insignificant burdens of individual rights,” the
Court narrowly limited the type of expression subject to disclosure requirements.
Based on the foregoing, M7’s sale of lethal chemicals implicates the First
Amendment rights of freedom of expression, speech and association, and any
disclosure of M7’s identity would violate those rights.
c. The First Amendment Protects Against Compelled
Disclosure of the Supplier’s Identity in Response to a
Subpoena.
A federal court may not enforce any federal statute with any order, including
a discovery order, that abridges the freedom of speech. N.Y. Times Co. v. United
States, 403 U.S. 713, 718-19 (1971) (Black, J., concurring) (stating the First
Amendment restricts the federal judiciary).

Subpoenas seeking information

regarding anonymous individuals raise First Amendment concerns. See NAACP,
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 357 U.S. at 462 (holding that discovery order requiring NAACP to disclose its
membership list violated First Amendment); Doe I v. Individuals, 561 F.Supp.2d
249, 254 (D. Conn. 2008). “To the extent that anonymity is protected by the First
Amendment, a court should quash or modify a subpoena designed to breach
anonymity.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2nd Cir. 2010)
(citing previous Fed.R.Civ.P. 45(c)(3)(A), now Fed.R.Civ.P. 45(d)(3)(A), which
requires “the court for the district where compliance is required” to “quash or
modify a subpoena that …requires disclosure of privileged or other protected
matter, if no exception or waiver applies”).

In deciding whether to quash a

subpoena, courts balance First Amendment rights against the need for discovery to
redress wrongs in order to ensure “that the First Amendment rights of anonymous .
. . speakers are not lost unnecessarily, and that plaintiffs do not use discovery to
‘harass, intimidate or silence critics. . . .” Doe I, 561 F.Supp.2d at 254 (citing
Dendrite Intern. Inc. v. Doe No. 3, 775 A.2d 756, 771 (2001)).
In applying the constitutional privilege based on First Amendment rights and
determining whether to enforce a subpoena, courts that have looked at the issue
have applied varying standards. See In re Anonymous Online Speakers, 661 F.3d
1168, 1174-76 (9th Cir. 2011) (summarizes various standards applied by courts).
The standards range from a good faith assertion of a claim for relief to a showing
commensurate with that needed to withstand a motion for summary judgment. Id.
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 at 1174-76. Ultimately, the Online Anonymous Speakers Court found that the
degree of First Amendment protection afforded the particular speech at issue
“should be the driving force in choosing a standard by which to balance the rights
of anonymous speakers [with the rights of aggrieved parties].” Id. at 1177. Here,
as noted above, M7’s speech and communications relate to political views, which
are afforded the highest level of protection and require exacting scrutiny.
In Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088, 1098 (W.D. Wash.
2001), the court quashed a subpoena seeking the identities of 23 anonymous
speakers on Internet message boards. The defendants argued that the identity of
the anonymous speakers would support their defense that “changes in . . . stock
prices were not caused by the defendants but instead by the illegal actions of
individuals who manipulated the stock price suing the Silicon Investor message
boards.” Id. at 1095. In deciding whether to enforce the subpoena, the court
adopted a four factor test addressing whether: (1) the subpoena was issued in good
faith and not for any improper purpose; (2) the information relates to a core claim
or defense; (3) the identifying information is directly and materially relevant to the
claim or defense; and (4) information sufficient to establish or to disprove the
claim or defense is unavailable from any other source. Id. Other courts that have
looked at the issue have used varying, but similar tests. See, e.g., In re Anonymous
Online Speakers, 661 F.3d 1168, 1174-76 (9th Cir. 2011); Arista Records, LLC v.
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 Doe 3, 604 F.3d 110, 118-19 (2nd Cir. 2010) (the court considered the following
factors: 1) defendant’s expectation of privacy, 2) the prima facie strength of
plaintiffs’ claims of injury; 3) the specificity of the discovery request; 4) plaintiffs’
need for the information and its availability through other means); Doe I v.
Individuals, 561 F.Supp.2d 249 (D. Conn. 2008). Cases are concerned about
harassment.
Weighing M7’s fundamental First Amendment rights against the request for
disclosure of M7’s identity makes it clear that the subpoena should be quashed. As
explained in Section III.B.b. hereof, the Mississippi inmates cannot establish that
M7’s identity is relevant under the ordinary rules of discovery, much less under the
elevated standard in this context. The last three elements of the test set forth in
2TheMart.com Inc. cannot be met given that disclosure of M7’s identity will not
result in the availability of an alternative source of lethal chemicals to the state of
Mississippi since M7 will not supply lethal chemicals at all if its identity is
disclosed. See M7 Declaration I ¶ 7.
Even if the information had some theoretical value, M7’s right to
anonymous speech, expression and association greatly outweighs any such
showing. M7 had a reasonable expectation of confidentiality based on Mo. Rev.
Stat. 546.720, the Department’s protocols and representations made to it by the
Department.

M7’s expectation of privacy should be accorded great weight. See,
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 e.g., Arista Records, 604 F.3d at 118-19; Bruno & Stillman v. Globe Newspaper
Co., 633 F.2d 583, 597-98 (1st Cir. 1980) (permitting discovery of confidential
sources only where the “claimed confidentiality seems unsupported, unlikely, or
speculative”); Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)
(information obtained pursuant to confidentiality agreements and personal
assurances of confidentiality deserves “significant protection” under the First
Amendment).
Furthermore, M7’s valid fears of harassment and retaliation should be
weighed against the negligible value of the identity of Missouri’s supplier of lethal
chemicals given that M7 will not supply the state of Mississippi. As noted in
Section III.C.b. hereof, First Amendment concerns are particularly acute where
there is fear of reprisal or harassment. Further, as set forth in Section III.B.a., the
Declarations of M7 and J. Lawrence Cunningham spell out the significant risks
associated with disclosure of M7’s identity.

M7’s First Amendment right to

anonymity in the face of such risk outweighs any claimed interest given that the
identity of M7 is irrelevant to Respondents’ claim or defense since M7 will not
supply any lethal chemicals if its identity is released. Instead, M7’s identity is only
relevant to the extent it can be used to harass and coerce M7, the very thing against
which the First Amendment protects.

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 D. A Writ of Mandamus is M7’s Only Available Avenue of Relief.
M7 also satisfies the second required element for issuance of a Writ, it has
no other available means of relief. A discovery order is interlocutory and not
appealable under 28 U.S.C. §§ 1291, 1292(a)(1) or 1292(b).

See Tenkku v.

Normandy Bank, 218 F.3d 926, 927 (8th Cir. 2000). Thus, appellate courts have
held that mandamus review is appropriate for discovery matters in compelling
circumstances. In re Biester Co., 16 F.3d 929, 931 (8th Cir. 1994) (mandamus
review appropriate means to review discovery order where there are “serious
policy considerations . . . sufficiently compelling to require immediate appellate
attentions” and “the inadequacy of later review as a remedy.”); Perry v.
Schwarzenegger, 591 F.3d 1147, 1157 (9th Cir. 2009); City of Las Vegas v. Foley,
747 F.2d 1294, 1297 (9th Cir. 1984). See also Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 101 (2009) (“[L]itigants confronted with a particularly injurious or
novel privilege ruling . . . may petition the court of appeals for a writ of
mandamus”). Here, there can be no doubt that M7 has no other means to obtain
relief given that M7 would be unable to obtain appellate review of the District
Court’s decision until after M7’s identity had been disclosed and its First
Amendment rights violated but for a writ of mandamus.

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 IV.

Conclusion

M7 asks this Court to grant its Petition for Writ of Prohibition or Mandamus
and quash the District Court’s Order requiring disclosure of any documents or
information that identify or will allow Respondents to identify M7.

Respectfully submitted,
BLITZ, BARDGETT & DEUTSCH, L.C.

By:

/s/ Aaron W. Sanders
Teresa Dale Pupillo, #42975
Aaron W. Sanders, #16-0219
120 South Central Ave., Suite 1500
St. Louis, Missouri 63105
(314) 863-1500
(314) 863-1877 (facsimile)
tpupillo@bbdlc.com
asanders@bbdlc.com

Counsel for Intervenor M7

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 CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 23rd day of September, 2016,
the above was filed with the Clerk of the Court for the United States Court of
Appeals for the Eighth Circuit under the CM/ECF system. Participants in the case
who are registered EM/ECF used will be served by the CM/ECF system.
/s/ Aaron W. Sanders

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