IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA JESSIE HOFFMAN and CHRISTOPHER SEPULVADO Plaintiffs ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) v. BOBBY JINDAL, Governor of Louisiana; BURL CAIN, Warden, Louisiana State Penitentiary; JAMES LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; ANGELA NORWOOD, Warden, Death Row; and JOHN DOES, unknown executioners, Defendants CIVIL ACTION NO. 3:12-cv-00796 JUDGE JAMES BRADY MAGISTRATE JUDGE STEPHEN RIEDLINGER PLAINTIFFS' FIRST MOTION TO COMPEL MAY IT PLEASE THE COURT: NOW COMES Plaintiff Jessie Hoffman, and hereby respectfully moves this Court, pursuant to Rule 37 of the Federal Rules of Civil Procedure, to compel discovery by all Defendants. A memorandum in support of Mr. Hoffman's motion is attached. In accordance with the above Rules, the Plaintiffs hereby certify that they conferred with the Defendants and were unable to reach an agreement. Respectfully submitted, 1 Case 3:12-cv-00796-JJB-SCR Document 76 10/21/13 Page 1 of 2 /s Michael D. Rubenstein__ Michael D. Rubenstein (Bar No. 22860) Liskow & Lewis 1001 Fannin Street, Suite 1800 Houston, TX 77002 Tel. (713) 651-2953 Fax (713) 651-2952 Cecelia Trenticosta Kappel (Bar No. 32736) Mercedes Montagnes (Bar No. 33287) The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Attorneys for Jessie Hoffman CERTIFICATE OF SERVICE I hereby certify that a copy of the above and forgoing was filed electronically with the Clerk of Court using CM/ECF on this 21st day of October, 2013. Notice of this filing as generated by the electronic filing system constitutes service of the filed document on counsel for the Respondent. /s Cecelia Trenticosta Kappel Cecelia Trenticosta Kappel 2 Case 3:12-cv-00796-JJB-SCR Document 76 10/21/13 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA JESSIE HOFFMAN and CHRISTOPHER SEPULVADO Plaintiffs ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) v. BOBBY JINDAL, Governor of Louisiana; BURL CAIN, Warden, Louisiana State Penitentiary; JAMES LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; ANGELA NORWOOD, Warden, Death Row; and JOHN DOES, unknown executioners, Defendants CIVIL ACTION NO. 3:12-cv-00796 JUDGE JAMES BRADY MAGISTRATE JUDGE STEPHEN RIEDLINGER MEMORANDUM IN SUPPORT OF MOTION TO COMPEL MAY IT PLEASE THE COURT: Having been unsuccessful in their attempt to limit the scope of discovery in this case through a protective order, the Defendants have unilaterally attempted to impose their own limitations on discovery through the invocation of inapplicable, state-law privileges and a misapplication of the Rule 26's limits on the scope of discovery. As a result, Jesse Hoffman respectfully moves this Court for entry of an order compelling the Defendants to immediately and fully respond to Hoffman's interrogatories and document requests and produce all responsive documents. I. Background. This lawsuit was brought pursuant to 18 U.S.C. ? 1983. Plaintiffs Hoffman and Sepulvado make four general claims in their Amended Complaint: (1) A violation or threatened 1 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 1 of 15 violation of Hoffman and Sepulvado's Due Process rights to notice and opportunity to be heard regarding the State's lethal injection protocol; (2) The current execution protocol does not contain adequate safeguards to prevent Hoffman and Sepulvado from suffering extreme pain and a lingering death in violation of the Eighth Amendment; (3) There is a substantial risk that the Defendants will materially deviate from the current written protocol, in violation of Hoffman and Sepulvado's rights to Equal Protection; and (4) The current protocol denies Hoffman and Sepulvado their right of access to the courts by preventing access to their attorneys in the execution chamber. See Rec. Doc. 67, at 19-21. These claims are all grounded in federal constitutional law; there are no ancillary state claims pending before this Court. During the hearing on Mr. Sepulvado's Motion for Preliminary Injunction before Judge Brady on February 7, 2013, counsel for the Defendants represented that Mr. Sepulvado had not been provided with a copy of the execution protocol because he had not asked for it in an "appropriate format." Rec. Doc. 37, at 3. When asked by the Court what constituted an "appropriate format," counsel responded that Mr. Sepulvado should propound requests for production of documents and interrogatories, "that we may or may not object to." Id. Counsel for the Defendants also indicated that Mr. Sepulvado had made the request too late, as he was at the time scheduled for execution. Id. at 5; Rec. Doc. 21, at 2-4 (Memorandum in Opposition to Intervenor's Motion for Preliminary Injunction). After Judge Brady granted the preliminary injunction based, in no small part, on the State's "intransigence" (Rec. Doc. 28, p. 4), this Court entered its scheduling order, which provided, inter alia, "any party who or which contends that information or documents the party must produce pursuant to Rule 26(a)(1) qualifies for protections under Rule 26(c) shall file a motion for entry of a protective order by May 15, 2013." Rec. Doc. 54, at 4. The Defendants 2 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 2 of 15 filed their motion for a protective order on May 15, seeking to redact or withhold several categories of information from discovery, including the identities of "certain third parties, and others involved in the lethal injection procedures." Rec. Doc. 60. This Court declined to enter the protective order on June 4, 2013. Rec. Doc. 62.1 Mr. Hoffman served interrogatories and requests for production upon counsel for the Defendants on August 1, 2013. Upon request of counsel, Mr. Hoffman agreed to a thirty-day extension to respond to the discovery, fixing the due date at October 1, 2013.2 In Mr. Hoffman's First Set of Requests for Production and First Set of Interrogatories, he sought to discover information regarding very basic subjects that are central to the issues before this Court. As to the Eighth Amendment claims, for example, he sought to discover all of the documents in the possession of the Defendants that related to the administration of lethal injections in this state. What changes have been made and why were they made? Where do the lethal drugs come from and when do they expire? How are the drugs maintained? Mr. Hoffman also sought to discover the identities of those individuals involved in the implementation of lethal injection procedures, and those tasked with carrying them out, in order that they may be deposed. As to the Equal Protection claims, he sought to discover information related to any deviations from the written protocol that may have occurred in the past or may occur in the future, as unequal treatment is the basis for his claim. 1 On June 17, 2013, the Defendants served upon counsel for Hoffman and Sepulvado a set of documents collectively titled the "Louisiana Execution Protocol." As this protocol differed substantially from previous iterations and presented new issues, Hoffman and Sepulvado moved for leave to file their Amended Complaint on July 1, 2013. Leave was granted and the Amended Complaint was filed on August 16, 2013. Rec. Docs. 65, 66, 67. 2 On September 5, DeSoto Parish Judge Robert Burgess signed a warrant of execution for Mr. Sepulvado, which was set aside by the Louisiana Supreme Court on September 27. 3 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 3 of 15 In response, the Defendants have made blanket assertions of state-law and deliberative process privilege and general objections on relevancy grounds. See Exhibit A. To the extent that the Defendants produced documents, they were heavily redacted. No privilege log has been provided. A Rule 37 conference was held on October 8, 2013, at which time counsel for the respective parties were unable to reach a resolution of the dispute. During the conference, counsel for the Defendants demanded that Mr. Hoffman submit his objections to the Defendants' discovery responses in writing, and indicated that full responses to Mr. Hoffman's discovery would not be provided absent the entry of a protective order. As previously noted, the Defendants motion for protective order was denied. The Defendants have not otherwise sought a protective order (nor have they sought to confer with undersigned counsel regarding the entry of a protective order) and the deadline for them to do so has passed.3 The information sought by Mr. Hoffman is clearly discoverable and the claims of "privilege" are specious. The Defendants should be ordered to immediately serve full and complete responses. I. The Privileges Asserted by the Defendants are Inapplicable to this Case. Defendants assert that Section 15:570 of the Louisiana Revised Statutes is a basis for nondisclosure in their responses to Interrogatory Nos. 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, and 13, and Request for Production Nos. 13, 14(k), and 17. Additionally, Defendants assert a deliberative process privilege in their responses to Request for Production Nos. 2, 3, 5, and 12. Neither privilege is applicable to this federal civil rights case. 3 Counsel for the Defendants did indicate, however, that despite having sixty days to respond to the discovery requests, they had additional documents to produce. As of the filing of this motion to compel, no additional documents have been produced. 4 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 4 of 15 A. Failure to Comply with Rule. As an initial matter, Mr. Hoffman suggests that this Court need not delve into the bases for any assertion of privilege made by the Defendants in this case. Quite simply, they have failed to comply with the rules governing the assertion of privilege and, as such, the claim of privilege should be summarily overruled. Rule 26(b)(5) governs claims of privilege. In particular, the rule provides: When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: .... (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. It is this provision of Rule 26 that calls upon all litigants to, when asserting privilege, produce and deliver to the opposing party a privilege log. The Defendants in this case have not only failed to adequately describe the document that they seek to withhold on the basis of privilege, they have not produced a log at all. The Defendants failure to make any effort to comply with the Federal Rules of Civil Procedure is more than the "intransigence" previously identified by this Court. It is a willful failure to comply with widely-understood rules of procedure. Accordingly, Mr. Hoffman seeks sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, including, but not limited to, a determination that the Defendants waived all claims of privilege as a result of failure to comply with Rule 26(b)(5). Mr. Hoffman submits that in light of the State's continued intransigence a severe sanction is warranted to insure that this litigation proceeds efficiently towards a just conclusion. B. La. Rev. Stat. ? 15:570. 5 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 5 of 15 Section 15:570(G) of the Louisiana Revised Statutes purports to cloak identities of persons "who participate or perform ancillary functions in an execution of the death sentence, either directly or indirectly" under an absolute shroud of secrecy. The statute provides that this information "shall not be . . . discoverable in any proceeding before any court." Id. Neither this Louisiana statute, nor any other, is binding upon a federal court adjudicating a question of federal law. On this point, the rule could not be clearer: The common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise: ? ? ? the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rules of decision. Fed. R. Evid. 501. Only federal law controls the resolution of this dispute. Defendants have pointed to no federal analogue to this state-law privilege and cannot, as none exists. The purpose of Section 1983 litigation is to provide a federal forum in which federal constitutional rights may be independently adjudicated. American Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir. 1981). The Fifth Circuit has held that because there is a "'special danger' in permitting state governments to define the scope of their own privilege when the misconduct of their agents is alleged," the federal interest in evaluating the privilege independent of state law in a ? 1983 case is 'particularly strong.'" Id. (emphasis added). "Special caution should be exercised in recognizing a privilege in a civil rights case because 'application of the federal law of privilege, rather than state law, in civil rights actions is designed to ensure that state and county officials may not exempt themselves from the very laws which guard against their unconstitutional conduct by claiming that state law 6 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 6 of 15 requires all evidence of their alleged wrongdoing to remain confidential.'" Zantiz v. Seal, 2013 WL 2459269 at *5 (E.D. La. June 6, 2013). In Finch, the Fifth Circuit considered whether a Mississippi statute making records of its "state sovereignty commission" confidential had the effect of a federal evidentiary privilege. 638 F.2d at 1342. The Fifth Circuit declined to recognize the state privilege as a matter of federal common law. Id. at 1342-45; see also Pearson v. Miller, 211 F.3d 57, 63, 68, 73-74 (3d Cir. 2000) (quoting Finch and declining to apply Pennsylvania confidentiality statutes to bar discovery into reports of child abuse, in a Section 1983 suit regarding child abuse in state-run daycare); Chester v. Beard, 2012 WL 5386129 (M.D. Pa. Nov. 1, 2012) (overruling a similar objection based on a Pennsylvania statute). In this case, the Defendants seek to shield from discovery facts critical to the resolution of this action. Section 15:570, if applied as Defendants wish, would bar discovery of the identity of any person even marginally connected to the lethal injection process in Louisiana. This would serve to frustrate the ends of this lawsuit, which challenges state action--lethal injection--taken by state actors. As suggested by the Defendants' responses to the Requests for Documents, much is undocumented in the lethal injection process, and facts known to the individuals involved in the process, discovered through deposition, will be critical to Hoffman and Sepulvado's claims. Given the Fifth Circuit's recognition of a "special danger" in allowing the State to shield its actors from inquiry into their conduct in the context of a Section 1983 suit, Finch, 638 F.2d at 1343, there is simply no basis for assertion of state-law privilege. C. Deliberative Process Privilege. In a further attempt to insure that their actions escape judicial scrutiny, the Defendants have asserted a second claim of privilege with respect to the documents requested by Mr. 7 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 7 of 15 Hoffman based on the deliberative process privilege. This Court need not delve into the nuances of the deliberative process privilege, because there is no basis for its application to the Defendants. The court's analysis in Buford vs. Holladay, 133 F.R.D. 487 (S.D. Miss. 1990) is particularly instructive on the application of the deliberative process privilege. In that case, Judge Barbour looked at both state law4 and federal law to determine whether the deliberative process privilege should apply. In that case, Mississippi law provided the relevant state law. Judge Barber found that there was no deliberative process privilege in Mississippi law. Similarly, the Louisiana Public Records Act contains a very limited deliberative privilege that has no application to this case. That privilege is found in Section 44:5 of the Louisiana Revised Statutes. That statute exempts from the general rule of the public records act by providing that it "shall not apply to any records having been used, being in use, possessed, or retained for use by the Governor in the usual course of the duties and business of his office relating to the deliberative process of the Governor, intra-office communications of the Governor and his internal staff, the Governor's security and schedule, or communications with the security and schedule of the Governor's spouse or children." Mr. Hoffman has not sought documents from the Governor. In fact, the Governor has been dismissed from this litigation. Accordingly, the Louisiana deliberative process privilege, as it exists, is inapplicable to this case.5 As to federal law, Judge Barbour's analysis is compelling: This Court notes that a majority of cases that have considered the notion of a 'deliberative process' privilege have spoken of that privilege as an evidentiary extension of the 'executive' privilege afforded to the Federal executive branch of 4 As noted above, Mr. Hoffman maintains that state privileges have no application to in this federal case. Yet even if this Court were to look to state law, it is clear that no such privilege exists. As discussed above, the Fifth Circuit has held that there is a "special danger" in allowing a state to cloak its actions with confidentiality when it is the state's actions that are being challenged. 5 8 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 8 of 15 government. This Court has been unable to discover any court opinion wherein this privilege of the federal executive branch of government has been extended to provide a privilege of state governmental agencies. Rather, the deliberative process of privilege has traditionally been applied only to communications relating to policy formulations of the highest levels of the Federal executive branch. Therefore, this Court concludes that the deliberative process privilege should not be extended to include state governmental agencies and therefore does not stand as a bar to the discovery sought here . . . .6 Id. at 493. Even if a showing is made that the deliberative process privilege applies, it is a qualified privilege and can be overcome by a sufficient showing of need. In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). This need determination must be made on a case-by-case basis. Id. "For example, where there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in this context does not serve the public's interest in honest, effective government." Id. at 738. Other factors considered by courts include (1) the relevance of the evidence; (2) the availability of other evidence; (3) the "seriousness" of the litigation and the issues involved; (4) the government's role in the litigation; and (4) "the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions." In re Subpoena Served upon Comptroller of Currency, 967 F.2d 630, 634 (D.C. Cir. 1992); FTC v. Warner Communications, 742 F.2d 1156, 1161 (9th Cir. 1984). Additionally, where, as here, the government agency asserting the privilege is a party to the litigation, the "[g]overnment's stake in [the] litigation means that its invocation of the deliberative process privilege must be carefully scrutinized to ensure that the privilege retains its proper narrow scope." Dairyland Power Coop. v. United States, 77 Fed.Cl. 330, 342 (Fed.Cl. 2007). Moreover, the Defendants have made 6 As noted above, it would be extreme, at best, for this Court to allow the State to hide behind State-law privilege in this civil rights action. 9 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 9 of 15 no valid invocation of the privilege through the proper department head or policymaker, have not identified what records it claims are subject to the privilege, and have not stated any "precise and certain reasons" for withholding the requested documents. See Sikorsky Aircraft Corp., 106 Fed.Cl. at 577. They have made no allegations that the records sought are "predecisional" or "deliberative," and have made no good faith effort to cull out purely factual information from the purported opinions of policymakers. Accordingly, the Defendants' assertion of privilege fails for lack of foundation. Even if the privilege had been validly asserted and established, compelling reasons exist for this Court to decline to extend the privilege to the Defendants in this case. This suit alleges government improprieties that create an unacceptable risk of violations of the Eighth and Fourteenth Amendments--among other allegations, insufficient training, expertise, and supervision in the administration of the lethal injection drug; the use of expired or illegallyobtained drugs; and habitual last-minute, ad hoc amendment of the lethal injection protocol on the eve of scheduled executions. Mr. Hoffman seeks, for example, documents that were relied upon by the Department of Corrections in connection with the revision or modification of a protocol (Request for Production No. 2), in order to establish that the Department's amendments to the protocols have been arbitrary and create a probability that he will face a likewise arbitrary amendment just before his own execution. Where there is reason to believe the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal government deliberations in this context does not serve "the public's interest in honest, effective government." Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995). This entire suit is about government 10 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 10 of 15 misconduct, and allowing the Defendants to shield7 a vast amount of unidentified documents with the deliberative process privilege would frustrate the purpose of Section 1983. This Court should decline Defendants' invitation to apply the deliberative process privilege in this case. III. The Defendants Misunderstand the Scope of Discovery Under Rule 26(b). Federal Rule of Civil Procedure 26(b) allows "discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. The Federal Rules of Civil Procedure therefore promote broad discovery, allowing inquiry into any matter that bears on, or that reasonably could lead to other matters that could bear on, a claim or defense of any party. Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Bradley v. Liberty Mut. Group, Inc., 2013 WL 3864316, *3 (M.D. La. July 24, 2013); Fed.R.Civ.P. 26(b)(1). The broad scope of discovery is intended to make a trial "less a game of blind man's bluff and more a fair contest." Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)). Indeed, "discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. . . . Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits." Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). 7 It should be noted that ordinarily the Louisiana Administrative Procedures Act would ensure transparency of executive decisions, by establishing hearing rights, separating certain administrative functions, devising procedural safeguards, ensuring the right of public participation, and providing for independent judicial review of agency rulemaking. However, as of 2010, Louisiana has exempted execution procedures from its Administrative Procedures Act. La. Rev. Stat. ? 15:569 (2012) ("The provisions of the Administrative Procedure Act, R.S. ? 49:950, et seq., shall not apply to the procedures and policies concerning the process for implementing a sentence of death."). It is no coincidence that the Legislature enacted this exemption just months after Nathaniel Code filed a lawsuit challenging the lethal injection protocol on APA grounds--a lawsuit defended by the same counsel who have herein asserted the deliberative process privilege. 11 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 11 of 15 Once the requesting party has demonstrated that the request is within the scope of discovery, the responding party maintains the burden to establish the lack of relevance by showing that "it is clear that the information sought can have no possible bearing upon the subject matter of the action." Piazza's Seafood World, L.L.C. v. Odom, No. 07-413, 2011 WL 3664437, *2 (M.D. La. Aug. 19, 2011). Here, Defendants have failed to show that the requested discovery is outside the broad scope of relevance, and they have failed to clarify their objections, or provide support for those objections. Simply saying that the requests ask for irrelevant information is not enough. Ironically, the Defendants appear to take the position that any information regarding past executions and protocols is irrelevant, see, e.g., Response to Request for Production No. 13, and at the same time assert that any information about future executions is also irrelevant, because "there are currently no executions scheduled to take place," see, e.g., Response to Request for Production No. 15; Answer to Interrogatory No. 1. In essence, the Defendants seem to suggest that all meaningful information is irrelevant. This is particularly troubling as Defendants are refusing to disclose information on grounds that there is no scheduled execution, and yet, when there was a scheduled execution, the Defendants strenuously asserted that it was "too late" to seek this information once an execution was scheduled. See Rec. Doc. 21. Defendants' objections on relevancy grounds do not comport with the broad scope of discovery in a federal civil matter. Each and every request made by Hoffman in this case is likely to "have some probable effect on the organization and presentation of his . . . case or will otherwise aid in his . . . preparation for trial." See Odom, at *2; Fed. R. Civ. P. 26(b).8 However, Mr. Hoffman asks this Court to overrule the Defendants' relevancy objections as the Defendants 8 Exhibit "B," attached hereto, addresses the basis for each discovery request. 12 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 12 of 15 have failed to establish that the requested discovery is outside the broad scope of relevance under Rule 26(b)(1), or that the potential harm that would arise from discovery outweighs the ordinary presumption in favor of broad disclosure. See United States v. Louisiana, No. 11-470, 2012 WL 3726754, *6-7 (M.D. La. Aug. 27, 2012) (granting in part motion to compel). IV. The Defendants' Boilerplate Objections of Broadness are Insufficient. Although a party may object to written discovery requests, the reasons for the objection "must be stated with specificity." Fed. R. Civ. P. 33(b)(4). The Defendants' mere assertions that Requests for Production Nos. 1, 2, 3, 4, 11, 12, and 14 are "overly broad" and "not calculated to lead to discoverable information" are evasive and inadequate to articulate an effective objection. See McLeod, Alexander, Powell & Apfell, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990); Panola Land Buyers Assn. v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (an objection that a request for production was "unnecessary, too long, too broad, require[d] too much time, [was] expensive to complete, [was] irrelevant, [was] improperly timed, and entail[ed] unreasonable geographic compliance" was "conclusory" and insufficiently specific to warrant withholding requested documents); S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D.Tex. 2006) ("Broad-based, non-specific objections . . . fall woefully short of the burden that must be borne by a party making an objection to an interrogatory or document request."). "These types of boilerplate objections are meaningless and insufficient under the federal rules." Merrill Lynch, Pierce, Fenner & Smith Inc. v. Greystone Servicing Corp., Inc., 2007 WL 4179864, *2 (N.D. Tex. Nov. 26, 2007) (granting motion to compel); Walker v. Lakewood Condo. Owners Ass'n, 186 F.R.D. 584, 587 (C.D. Cal. 1999); Adams v. Sharfstein, 2012 WL 2992172, at *4 (D.Md. July 19, 2012) (granting motion to compel document requests because boilerplate objections asserting 13 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 13 of 15 vagueness, burdensomeness, and privilege were not particularized). Defendants fail to articulate specifically how these requests are overbroad and as such the objections must be overruled. V. Continuing Duty to Disclose. Finally, Mr. Hoffman would like to remind the Defendants of their continuing duty to disclose under Rule 26(e)(1). In the Defendants' Response to the Request for Production, the Defendants disclosed a document that plainly states that the expiration date for the pentobarbital currently in stock is "9/13." In Defendants' Response to Interrogatory No. 1, Defendants represent that "as of September 2013 there is an adequate supply of viable pentobarbital for use in executions by lethal injection as of this date." See Exhibit A (emphasis added). The Interrogatory Response is dated September 30, 2013. If the supply of pentobarbital later became non-viable, e.g., if it expired as of October 1, then the Defendants have a duty to disclose this information. Counsel for the Defendants also stated during the Rule 37 conference that she had a "stack of documents" responsive to the discovery requests. Undersigned counsel have yet to receive such documents. VI. Conclusion. WHEREFORE, Hoffman and Sepulvado respectfully ask this Court to issue an order compelling Defendants to fully comply with the First Set of Requests for Production and Interrogatories propounded by Mr. Hoffman on August 1, 2013. Respectfully submitted, /s Michael D. Rubenstein__ Michael D. Rubenstein (Bar No. 22860) Liskow & Lewis 1001 Fannin Street, Suite 1800 14 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 14 of 15 Houston, TX 77002 Tel. (713) 651-2953 Fax (713) 651-2952 Cecelia Trenticosta Kappel (Bar No. 32736) Mercedes Montagnes (Bar No. 33287) The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 Tel. (504) 529-5955 Fax (504) 558-0378 Attorneys for Jessie Hoffman CERTIFICATE OF SERVICE I hereby certify that a copy of the above and forgoing was filed electronically with the Clerk of Court using CM/ECF on this 21st day of October, 2013. Notice of this filing as generated by the electronic filing system constitutes service of the filed document on counsel for the Respondent. /s Cecelia Trenticosta Kappel Cecelia Trenticosta Kappel 15 Case 3:12-cv-00796-JJB-SCR Document 76-1 10/21/13 Page 15 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA NORWOOD, Warden, Death Row; JESSIE HOFFMAN and CHRISTOPHER SEPULVADO CIVIL ACTION Plaintfi v. NO. 3 12--cv--00796 BOBBY JINDAL, Governor of Louisiana; JUDGE JAMES BRADY BURL CAIN, Warden, Louisiana State Penitentiary; JAMES LEBLANC, Secretary, MAGISTRATE IUDGE Louisiana Department of Public Safety and STEPHEN RIEDLINGER Corrections; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND and JOHN DOES, unknown executioners, Defendants RESPONSES ON BEHALF OF DEFENDANTS. BURL CAIN. WARDEN. JAMES LEBLANC. SECRETARY. AND ANGELIA NORWOOD. WARDEN. TO PLAINTIFF JESSIE HOFFMAN FIRST SET OF REQUESTS FOR PRODUCTION NOW Defendants; BURL CAIN, Warden, Louisiana State Penitentiary, JAMES LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections; and ANGELIA NORWOOD, Warden, Death Row, who, in regards to Plaintiff Jessie Hoffman's First Set of Requests for Production, submit the following responses and attached documents: General Objections and Limitations: Defendants make the following general and continuing objections to Plaintiffs First Set of Requests for Production: Defendants object to the extent that Plaintiffs First Set of Requests for Production seek any documents that are protected by attomey~client privilege, Work product privilege, and the deliberative process privilege. Defendants object on the basis of relevance to the extent that Plaintiff' First Set of Requests for Production seek lethal injection protocols that Case Document 76-2 10/_21/13 Page1of74 were previously provided and to the extent that the requests may seek information contained within the previously tendered lethal injection protocols. Defendants object on the basis of relevance to the extent that Plaintiffs First Set of Requests for Production seek documents that any way relate to the adniinistration of lethal injection prior to the formation of the current protocols and/or the current lethal injection procedure that is the subject of the litigation. Defendants object to the extent that Plaintiffs First Set of Requests for Production seeks confidential information pertaining to the identity of persons not included in Subsection of La. R.S. 15 2570 who participate or perform ancillary functions in an execution of the death sentence, either directly _or indirectly. See La. R.S. Moreover, please note that Defendants' Responses to Plaintiffs First Set of Requests for Production are limited as follows: Defendants are not responding to Plaintiffs First Set of Requests for Production on behalf of BOBBY JWDAL, Governor of Louisiana, or LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, as those parties were previously dismissed from this proceeding. Defendants are not responding to Plaintiff' First Set of Requests for Production on behalf of any JOHN DOES, unknown executioners, as no such parties have been identified or joined as parties in this proceeding. Moreover, the documents attached to these responses have been redacted to the extent they contain confidential infonnation pertaining to the identity of persons not included in Subsection of La. R.S. who participate or perform ancillary functions in an execution of the death sentence, either directly or indirectly. See La. R.S. Case Document 76-2 10/21/13 Page2of 74 Request for Production of Documents No. 1: Any and all documents created by, received by, or otherwise in your custody or control relating in any manner to the administration of lethal injection in the State of Louisiana (Whether currently in force or not) including, but not limited to, all rules, regulations, or procedures promulgated or revised. Response to Request for Production No. 1: In addition to the general objections noted above, Defendants further object on the basis that this request for production is overly board in scope and is not calculated to lead to discoverable information. Subject to these objections, at this time Defendants have no documents that are responsive to this request for production. Request for Production of Documents No. 2: Any and all documents that were utilized, reviewed, or considered by you or DOC in connection with the administration of lethal injection, including, without limitation, all communications concerning the adoption, revision, or modification of any protocol. Response to Request for Production No. 2: In addition to the general objections noted above, Defendants further object on the basis that this request for 'production is overly board in scope and is not calculated to lead to discoverable information, and because it seeks information that is subject to the deliberative process privilege. Subject to these objections, at this time Defendants have no documents that are responsive to this request for production. Request for Production of Documents No. 3: Any and all documents that describe any revisions or changes in the administration of lethal injection from September 15, 1991, to the present, including but not limited to any changes in factors used by the DOC to take into consideration the weight, age, and physical condition of Case Document 76-2 10/21/13 Page3of 74 the inmate in administering the dosage of chemicals, and the relation between the timing of the lethal injection and time and quantity of food last ingested by the inmate to be executed. Response to Request for Production No. 3: In addition to the general objections noted above, Defendants further object on the basis that this request for production is overly board in scope and is not calculated to lead to discoverable information. Defendants also object to the extent this request for production seeks information that is subject to the deliberative process privilege. Subject to these objections, at this time Defendants have no documents that are responsive to this request for production. Request for Production of Documents No. 4: Any and- all documents reflecting the inventory of supplies (including all purchase records) maintained by DOC for the purpose of 'administering lethal injections between September 15, 1:991, and the present. Response to Request for Production No. 4: In addition to the general objections noted above, Defendants further obj ect on the basis that this request for production is overly board in scope and time. Moreover, any information relating to old drugs is irrelevant to this litigation. Notwithstanding these objections, please see the documents attached. Request for Production of Documents No. 5: Any and all documents relied upon by the DOC in its decision to begin using pentobarbital in connection with the administration of lethal injection. Response to Request for Production No. 5: In addition to the general objections noted above, Defendants further object on the basis that this request for production seeks information that is subject to the deliberative process Case Document 76-2 10/21/13 Page4of 74 privilege. Defendants also object to this request for production on the basis that the issue of how DOC arrived at its decision is irrelevant and is not likely to lead to discoverable evidence. Request for Production of Documents No. 6: Any and all documents reflecting consultation by the DOC with any persons other than employees of the State of Louisiana regarding the use of pentobarbital as the lethal injection drug. Response to Request for Production No. 6: See Response to Request for Production No. 5 above. Request for Production of Documents No. 7: Any and all documents regarding the identity of any persons involved with the administration of lethal injection. Response to Request for Production No. 7: Defendants object to the extent this request for production seeks confidential information pertaining to the identity of persons. not included in Subsection of La. R.S. l5:570 who participate or perform ancillary functions in an execution of the death sentence, either directly or indirectly. Subject to this objection, Defendants have no 'documents responsive to this request for production. a Request for Production of Documents No. 8: Any and all documents regarding the source, availability, manufacturer, quantity, and expiration dates of pentobarbital currently in possession of the Department of Corrections, including but not limited to, all order forms and receipts, all cancelled checks or other proof of payment, all documents of communications with DDC employees regarding the procurement of pentobarbital, any communications with or about potential or actual suppliers of pentobarbital, Case Document 76-2 10/21/13 Page5of 74 and the dates on which such drugs were obtained by DOC. Response to Request for Production No. 8: In addition to the general objections noted above, this request for production is irrelevant since there are currently no executions scheduled to take place. Notwithstanding these objections, please see the documents attached. Request for Production of Documents No. 9: Any and all documents reflecting DOD's acquisition of the active pharmaceutical ingredient in pentobarbital, including any and all attempts to acquire said API whether successful or not, and all documentation reflecting that a compounding pharmacy, or any- individual(s) inside or outside of DOC, planned to prepare or actually prepared pentobarbital from the Response to Requestfor Production o. 9: In addition to the general objections noted above, this request for production is irrelevant since there are currently no executions scheduled to take place. Notwithstanding these objections, DOC has made no attempts to acquire the API.- Moreover, Defendants have no documents reflecting that a compounding pharmacy either planned to prepare or actually prepared pentobarbital from the API. Request for Production of Documents No. 10: All documentation reflecting efforts by the DOC to seek or obtain information regarding the Food Drug Administration (FDA) approval status of any and all pentobarbital, or API, and all correspondence concerning the FDA approval status of such pentobarbital. Response to Request for Production No. 10: Subject to the general objections noted above, Defendants have no documents responsive to this request for production. Moreover, this request for production is irrelevant since there are Case Document 76-2 10/21/13 Page6of 74 currently no executions scheduled to take place. Notwithstanding these objections, DOC made no attempts to obtain FDA approval status of pentobarbital or API for use in executions in Louisiana prior to deciding to use pentobarbital in executions. Request for Production of Documents No. 11: All documents related to the purchase, maintenance,-repair, or existence of equipment used for monitoring an inmate's physiological condition before, during, and after lethal injection, including any documents detailing the purchase and/or repair history of said equipment. Response to Request for Production No. 11: In addition to the general objections noted above, Defendants further object on the basis that this request for production is overly board in scope and time and vague as to the term "equipment". Notwithstanding these objections, DOC does utilize a pulsometer and heart monitor; however, DOC does not utilize specific machines for executions. Request for Production of Documents No. 12: Any and all documents relating to or mentioning DOC Regulation C--03~00l from, September 15, 1991, to the present, including all Versions of said regulation, and any documents considered by DOC in connection with any revision to said regulation. Response to Request for Production No. 12: In addition to the general objections noted above, Defendants further object on' the basis that this request for production is overly board, unduly burdensome, and seeks information that is subject to the deliberative process privilege. Furthermore, Defendants have already submitted to Plaintiff the current version of the protocols that is the subject of this litigation, and Defendants object to the request for prior versions of the protocols as irrelevant. Subject to these objections, Defendants have no documents that are responsive to this request. Case Document 76-2 10/21/13 Page7of 74 Request for Production of Documents No. 13: Any and all documents pertaining to the execution by lethal injection of each and every prisoner executed on or after September 15, 1991, that were produced by the officials and witnesses identified in La. Rev. Stat. 15 :570, including, without lirnitation: a. The warden of the Louisiana State Penitentiary at Angola, and all persons selected by him pursuant to La. Rev. Stat. 15 :5'70 b. The coroner of the parish of West Feliciana or his 'deputy, pursuant to La. Rev. Stat. 15:570 c. The physician summoned by the warden of the Louisiana Penitentiary at Angola, pursuant to La. Rev. Stat. 15:570 and d. The person selected by the warden of the Louisiana Penitentiary at Angola to administer the lethal injection, pursuant to La. Rev. Stat. Response to Request for Production No. 13: I In addition to the general objections noted above, Defendants further object to the extent this request for production seeks confidential information pertaining to the identity of persons not included in Subsection of La. R.S. 152570 who participate or perform ancillary functions in an execution of the death sentence, either directly or indirectly. Furthermore, prior executions are irrelevant as none have utilized the current protocols. Subject to these objections, Defendants have no documents that are responsive to this request for production. Request for Production of Documents No. 14: Any and all documents produced by DOC personnel regarding the actual preparation for and execution by lethal injection of every prisoner executed on or after September 15, 1991, including, but not limited to: a. All documents itemizing the amounts and concentrations of all chemical substances utilized in the administration of a lethal injection. Case Document 76-2 10/21/13 Page8of 74 b. All internal communication, reports, telexes, emails, faxes, or documentation from any other reporting device that details the procedure - for Louisiana State Penitentiary and/or the DOC's planned administration of drugs in future executions, including, but not limited to the timing of each step of the process, the description of each person involved in the - administration of the lethal injection, and a description of the extent of medical training if any, of each of these persons; c. Any other notes (printed, typed or handwritten), reports, statements, photographs, supplemental reports, initial reports, memoranda, scientific reports, tapes of statements, interview notes, interview summaries, narratives, affidavits, files, audio and video recordings, drawings, sketches, physical evidence, inventory logs, chronologies, summaries, witness statements, witness interviews, and witness affidavits which are responsive to the foregoing requests -- all of them or just these subparts. I think this is unclear; d. All death certificates issued for each prisoner executed on or after September 15, 1991; e. Each process verbal and/or press release for every prisoner executed on or after September 15, l99l; I f. All correspondence with and signed agreements from prospective witnesses to each execution for every prisoner executed on or after September 15, 1991; g. All Unusual Occurrence Reports generated in connection with every execution carried out on or after September 15, 1991; h. All death warrants issued for every prisoner executed on or after September 1 5, 99 i. All internal memoranda, letters, emails, and/or communications among prison employees, including wardens, medical staff, and civilian staff, Case Document 76-2 10/21/13 Page9of 74 regarding implementation of the lethal injection as the method of execution in the State of Louisiana; j. All sign--in sheets for all Witnesses to each execution carried out on or after September 15, 1991; k. All documents of overtime hours worked by DOC employees in connection with each execution carried out on or after September 15, 1991; 1. All mental health assessments, interviews, and evaluations on every death row inmate scheduled for execution performed in advance of every execution on or after September 15, 1991; and m. All summaries or other reports of medical examinations performed on each inmate executed on or after September 15 1991. Response to Request for Production No. 14: In addition to the general objections noted above, Defendants further object to the individual subparts of Request for Production of Documents No. 14, as follows: a. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. b. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover; this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. c. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Defendants agree with Plaintiffs own astute notation that this request for production is "unclear". Moreover, this request for Case Document 76-2 10/21/13 Page 10 of 74 production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. d. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Finally, Plaintiff is not within that class of persons entitled to access a death certificate. Subject to these objections, Defendants have no documents responsive to this request for production. e. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. f. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. g. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. h. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Case Document 76-2 10/21/13 Page 11 of 74 Defendants have no documents responsive to this request for production. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Subject to these objections, Defendants have no documents responsive to this request for production. k. Defendants object to the request for production in this subpart to the extent it is overly broad in scope to the extent this request for overtime hours seeks confidential identities of persons not- included in Subsection of La. R.S. 15:570. Furthermore, overtime hours Worked during prior executions is irrelevant. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time._ Moreover, this request for production is irrelevant since no prior execution has used the current drug. Finally, Defendants object to the extent that this request for production seeks private medical information that is subject to HIPAA. Subject to these objections, Defendants have no documents responsive to this request for production. m. Defendants object to the request for production in this subpart to the extent it is overly broad in scope and time. Moreover, this request for production is irrelevant since no prior execution has used the current drug. Finally, Defendants object to the extent that this request for production seeks private medical information that is Case Document 76-2 10/21/13 Page 12 of 74 subject to HIPAA. Subject to. these objections, Defendants have no documents . responsive to this request for production. Request for Production of Documents No. 15: A sample of the pentobarbital the DOC intends to use in the next scheduled execution. Response to Request for Production No. 15: This is not an appropriate request for production. In addition to the general objections noted above, Defendants further object on the basis that this request for production is irrelevant since there are currently no executions scheduled to take place. Therefore, there is not an "intended" sample of pentobarbital that can be identified. Defendants also object to the extent that this request for production requests Defendants to distribute a controlled dangerous substance, nor is Plaintiff or his counsel qualified to receive the same. Subject to these objections, Defendants have no documents that are responsive to this request for production. Request for Production of Documents No. 16: Any and all documents evidencing communication or business relationship between you and/or DOC and Morris Dickson Co. LLC or any of its affiliates. Response to Request for Production No. 16: In addition to the general objections noted above, Defendants further obj ecton the basis that this request for production is overly broad in scope and time and irrelevant since there are currently no executions scheduled to take place. Moreover, Morris Dickson supplies hundreds of drugs to DOC. Subject to these objections, please see Response to Request for Production No. 8. Request for Production of Documents No. 17: All local, state and/or federal licenses or registrations held by the DOC or any employee of the DOC authorizing the procurement, purchase, possession or transfer of Case Document 76-2 10/21/13 Page 13 of 74 pharmaceuticals, including the initial and renewal applications for all such licenses or registrations. Response to Request for Production No. 17: Defendants are not producing the licenses as this information is confidential as they pertain to the identity of persons not included in Subsection of La. R.S. 15:570. Notwithstanding these objections, please see the documents attached. Request for Production of Documents No. 18: All documentation of all training exercises related to lethal injection carried out since January 1, 2007. I Response to Request for Production No. 18: In addition to the general objections noted above, Defendants further object on the basis that this request for production is irrelevant since there are currently no executions scheduled to take place. Notwithstanding these objections, please see the documents attached. Respectfully Submitted: /s Jacqueline B. Wilson E. Wade Shows, La. Bar Roll No. 7637, James L. Hilburn, La. Bar Roll No. 20221, Jeffrey K. Cody, La. Bar Roll No. 28536, Jacqueline B. Wilson, La. Bar Roll No. 31055, SHOWS, CALI, WALSH, L.L.P. 628 St. Louis Street (70802) P.O. Drawer 4425 Baton Rouge, Louisiana 70821 Telephone: (225) 346-1461 Facsimile: (225) 346-1467 Case Document 76--_2 10/21/13 Page 14 of 74 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served upon counsel for Jessie Hoffman and counsel for Christopher Sepulvado via e-mail and/or by depositing same in the U.S. Mail, postage prepaid and properly addressed on this 30th day of September, 2013. s/ aequeline B. Wilson Jacqueline B. Wilson Case Document 76-2 10/21/13 Page 15 of 74 SHOWS, CALI 8: WALSH, LLP 628 St. Louis Street (70802) Post Office Drawer 4425 Baton Rouge, LA 70821 WriteI"s Contact II1fo1'Ination: IACQUELINE B. WILSON Telephone: (22 5) 346-1461 Fax: (225) 346-1467 October 1, 2013 Michael Rubenstein Gary Clements Liskow Lewis Capital Post--Conviction Project of Louisiana 1001 annin Street, Suite 1800 1340 Poydras Street, Suite 1700 Houston, Texas 77002 New Orleans, Louisiana 70112 RE: CAIN, ET MIDDLE DISTRICT DOCKET NO. I2-796-JJB-SCR Dear Michael and Gary, Please find attached a copy of Defendants' Responses to interrogatories and Requests for Production of Documents propounded by Jessie Hoffman and Christopher Sepulvado. Sincerely, snows, CALI WALSH, LLP queline B. Wilson cc: Louisiana Department of Public Safety Corrections Case Document 76-2 10/21/13 Page 16 of 74 RESPONSE TO REQUEST PRODUCTION OF DOCU ENTS Case Document 76-2 10/21/13 Page 17 of 74 LOUISIANA STATE PENITENTIARY EMS DEPARTMENT EXECUTION CART INVENTORY Year Item . Amt I Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Drawer 1 I -Tray 1 Razors 3 ea. Stethoscope 2 ea, ECG Electrodes 1 Drawer 2 Tray 1 Trauma Shears 1 ea. Flash Light 1 ea. Permanent Markers 2 ea. Cell Batteries 6 ea, Drawer 2 Tray 2 Safety Glasses 1 pr. Face Mask Shield 3 ea. Chloride 20mlSodiun1 1 ea. Sterile Gloves size. 7.0 2 pr. Sterile Gloves size. 7.5 2 pr. Sterile Gloves size. 8.0 2 pr. Sterile Gloves size. 8.5 2 pr. Drawer 3 I Tray 1 l8ga. Needle 3 ea. 23ga. Needle 3 ea. l8ga. IV Catheter 1/ 12 6 ea. 20ga. IV Catheter 3/ 12 6 ea. Silk raise 2" (1 each) 2 IV Tourniquets 2 ea. Alcohol Preps 24ea. Total 75 Initials Case Document 76-2 10/21/13 Page 18 of 74 LOUISIANA STATE PEN ITENTIARY EMS DEPARTMENT EXECUTION CART INVENTORY Year 1 Item Stock Jan Feb Mar Apr May' Jun Jul Aug Sep Oct Nov Dec Drawer 3 I Tray 2 0 3cc Syringe Needle 3 ea, 3cc LLT Syringe 3 ea 10/ 12 cc LLT Syringe. 3 ea. 60c_c LLT Syringe 3 ea_ Drawer 4 Tray 1 Non-sterile 4x4 Gauze 1 pk, 9% N.S. 10001111 4 ea.. Drawer 4 I Tray 2 Op-Site 2 x_2 '10 ea. IV Start Kit 2 'ea. Band-Aid Sm. 1 pk. Band-Aid Lg. 1 pk. Roll Gauze 4" 4 ea, IV Pump Extension Tubing 3 ea' IVPump'Universal Tubing 3 33" IV Tubing 10 gtt. 3 33.; IV Tubing 15 gtt. 3 ea. 4 4 10/pk Sterile 2 pk, Drawer 5 IV Start Tray 1 ea. Cloth Towels 3 ea. Sharps Container, Small 1 Ca. Sharps Container,1argel 1 ea, Light Bulbs 3 ea, Red bags 3 ea. Other: Cardiac Monitor EMS Pulse Oximeter . EMS Total 61 Initials Case Document 76-2 10/21/13 Page 19 of 74 SP TO REQU ST Case Document 76-2 10/21/13 Page 20 of 74 91E 1 LQCAT 1 L1;i'Zz L1 fiiw DISBENSED 1 INVEEIDBJ1 $1412. --. - . .. Case Document 76-2 10/21/13 Page 21 of 74 99.00 m. 0.2 -9 . 12.; .- . AGEIKCF 5 1 1' '1 Case Document 76-2 10/21/13 Page 22 of 74 I - Cnpy-for instructions rc. nmybe for S::heduI::_I and II. unless :1 OMB QPPROYAL CPR STREET ADDRESS I "d STATE uz fia?i7*1 1 ms; or size of . Packages Package Name gm av of item ICED-I 1 TO BEEILLED in By Fleceived 37') w;4z.; 1 I 3 1' CODE Date i A .0. - 153 22gr?b1?1 'g_a'crd'_r_'e_a'_ss or'F3e?i?1ran'L - I3-BX 'Hegisiere"ci' wofct this-. otde&'F6rm' ajibNL efiga HIGHHAV $4 1 7 9 1 111" Ln. r'ur r, 1 a .3. as (MAY 2003} OFFICIAL I 3: IE :1 DFEUG ENFOFHSEMENT PURCHASE-WE Copy 3 I 1: Case Document 76-2 10/21/13 Page 23 of 74 1 1 :15 DRUG L06 1' 7 Form Carry Gvar Eaiance Bose Date Time Rx NUMBERIPO NUMBER AMQUNT 01395555501 BALANCE 1 6 ?2 ?2.27. 2 ra 33.? If fix' It '11 13 '14 16 _'Case Document 76-2 10/21/13 Page 24 of 74 foafi 1841 10301 l'i\'u'y1 South. Shreveport. Ph. 318-797-2900 REMIT T02 PI). BOX 5136? Shravepon, LA Ph. 318-797-7900 ELAYN HUNT CORRECTIONAL CENTERB 5925 HIORRAY 74 I ST GABRIEL, LA 70775 (225) 319-4546 NAR. FORM 101030895 /gjsr; NO. Stickers 4-. ELAYN HUNT CORRECTIONAL CENTER 6925 HIGHWAY 74 ST GABRIEL, LA ACK 29572 0 70776 3 I S=Hll?= VIA Kg?l NO. AH8518524 RD. NUMBER tjE'R1:" INVOICE 2220904 DATE 5/19/11 PAGE DEA N0. RMO3-1-4790 951" P83 515328 W12 .21 22 ORER 5OML > 2n11- 2o1_1<<- 2011- zan- Decriptian ?7aae-o5o1- .$5'355 . $5 55 AKR Grand 6 Totais $13 $0 $0 $0 $5.35Case Document 76-2 10/21/13 Page 27 of 74 SPONSE TO 1 UEST F0 UCTEON OF OCU ENTS 17 Case Document 76-2 10/21/13 Page 28 of 74 CONTROLLED SUBSTANCE REGISTRATION CERTIFICATE UNITED STATES DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION WASHINGTON D.C. 20537 This registration is only for use at Federal or State institutions. IREGISTRATION FEE EXPIRES PAID 5 FEE ISSUE DATE 2,251, I HOSPITALICLINIC 02-01-2012 - Sections 304 and 1008 (21 USC 824 and 958) of the Controlled . Substances Act of 1970, as amended, provide that the Attorney Genera} may revoke or suspend a registration to manufacture, distribute, dispense, import or export a controlled substance. LA STATE PENITENTIARY PHARMACY RE. BARROW TREATMENT 17544THIS CERTIFICATE IS NOT TRANSFERAEILE ON CHANGE OF CONTROL, LOCATION, OR BUSINESS ACTIVITY, AND IS NOT VALIB AFTER THE EXPIRATION DATE. OONTROLLED SUBSTANOE REGISTRATION CERTIFICATE UNITED STATES DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION WASHINGTON DC. 20537 DEA REGISTRATION THIS REGISTRATION FEE NUMBER EXPIRES rwo - FEE EXEMPT *3 for . SCHEDULES BUSINESS ACTIVITY ISSUE OATE LA STATE PENITENTIARY PHARMACY (21 use 824 ancressi of the RE. BA-RZROW TREATM-EMT CENTER .Subsita-noes. Act -of 1970, as 'amended, 3} 17544 TUNICA TRACE provide that the Attorney General may revoke or RM 15;] suspend ei registration. to manufacture, distribute, ANGOLA, LA 1707,] dispense, import or export a comroiied substance.- THIS CERTIFICATE IS NOT ON CHANGE OF CONTROL, LOCATION, OR BUSINESS ACTIVITY, IT IS VALID AFTER THE DATE. .. I. .. . .9 Case Document 76-2 10/21/13 Page 29 of 74 - 3388 Drive Baton Rouge, Lilli 70809-1700 PHARMACY PERMIT Pei'mit Uwraer: State of Louisiana LSU-HSC This is to certify that the Pharmacy listed hereon is duly permitted to operate a PHARMACY in Louisiana for the referenced period at the address noted: Louisiana State Penitentiary Pharmacy Permit Number: R.E. Barrow Treatment Center Rm. 150 Effective Date: 01/01/2013 Tunica Trace Angola, LA 70712 Expiration Date: 12/31/2013 PERMIT Must at EN PHARMACY . cm ,3 THIS PERMIT lS NOT TRANSFERABLE Carl W. Aron A change in or relocation of the pharmacy reqtiires a nevi: permit President Relocatio-ns: This permit is not transferable to a new address. A reiocation application should be submitted at least 30 days prior to the anticipated move date. - a Change of Ownership: A new permit is required when the ownership of the pharmacy changes by 50% or more; a Controlled Eiangerous Substances A pharmacy permit alone does not authorize the possession of Controlled Dangerous Substances. in order to procure and possess CD5, you must hold a separate CD5 license. a Pharrnacist--in-->Iff"Ldf; "l'fl.l' 1 I 1-ma11, ufa rim '11. lag ifix'=13 '15- -5 . ii) -1 'nfix . . -r - 1- . I: 4.1. I r" - H-1 Fla. F3: I . - 15% aw35:. 3' we ?531til Fri' 2 . 1, 1 :1 art, I PEI 1 I Ejjl' - .-J . .- -gen. . 3 . .. 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Case Document 76-2 10/21/13 Page 51 of__74 Case Document 76-2 10/21/13 Page 52 of 74 Case Document 76-2 10/21/13 Page 53 of 74 I Case Document 76-2 10/21/13 Page 54 of 74 E331 Case Document 76-2 10/21/13 Page 55 of.74 1 Case Document 76-2 10/21/13 Page 56 of 74 Case Document 76-2 10/21/13 Page 57 of 74 5.53Case Document 76-2 10/21/13 Page 58 of 74" Case Document 76-2 10/21/13 Page 59 of 74 wag Case Document 76-2 10/21/13 Page 60 of.74 Case Document 76-2 10/21/13 Page 61 of 74 Case Document 76-2 10/21/13 Page 62 of 74 Case Document 76-2 10/21/13 Page 63 of 74 Case Document 76-2 10/21/13 Page 64 of 74 Case Document 76-2 10/21/13 Page 65 of 7.4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA JESSIE HOFFMAN * CIVIL ACTION No. 12-796 VERSUS * JUDGE JAMES BRADY BURL CAIN ET AL. * MAG. JUDGE STEPHEN RIEDLINGER **************************************************************************** RESPONSES ON BEHALF OF DEFENDANTS, BURL CAIN, WARDEN, JAMES LEBLANC, SECRETARY, AND ANGELIA NORWOOD, WARDEN. TO PLAINTIFF JESSIE HOFFMAN'S FIRST SET OF INTERROGATORIES TO DEFENDANTS NOW COMES, Defendants, BURL CAIN, Warden, Louisiana State Penitentiary, JAMES LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections, and ANGELIA NORWOOD, Warden, Death Row, who, in regards to Plaintiff Jessie Hoffman's First Set ofInterrogatories, submit the following responses: General Objections and Limitations: Defendants make the following general and continuing objections to Plaintiffs First Set ofInterrogatories: Defendants object to the extent that Plaintiffs First Set of Interrogatories seek any information protected by attorney-client privilege, work product privilege, and the deliberative process privilege. Defendants object on the basis of relevance to the extent that Plaintiffs First Set of Interrogatories seeks information that in any way relates to the administration of lethal injection prior to the formation of the current protocols and/or the current lethal injection procedure that is the subject of the litigation. Defendants also object to the extent that Plaintiffs First Set of Interrogatories seeks confidential information pertaining to the identity of persons not included in Subsection F of La. R.S. 15:570 who participate or perform ancillary functions in an execution of the death sentence, either directly or Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 66 of 74 indirectly. See La. R.S. 15:570(G). Moreover, please note that Defendants' Responses to Plaintiff's First Set of Interrogatories are limited as follows: Defendants are not responding to Plaintiff's First Set ofInterrogatories on behalf of BOBBY JINDAL, Governor of Louisiana, or LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, as those parties were previously dismissed from this proceeding. Also, Defendants are not responding to Plaintiff's First Set ofInterrogatories on behalf of any JOHN DOES, unknown executioners, as no such parties have been identified or joined as parties in this proceeding. Interrogatorv No.1: Identify, by manufacturer, lot number, quantity, expiration date, and source, the pentobarbital used or to be used by the DOC in the lethal injections given to death row inmates. Answer to Interrogatory No.1: Defendants object to this interrogatory to the extent it seeks the manufacturer's name as that is made confidential pursuant to La. R.S. l5:570(F) and (G). Moreover, Defendants object to this interrogatory as irrelevant to the extent it seeks information relating to previously used pentobarbital and also because there are currently no executions scheduled to take place. Notwithstanding these objections, Defendants submit that, as of September 2013 there is an adequate supply of viable pentobarbital for use in executions by lethal injection as of this date. Interrogatory No.2: Identify each person, whether or not employed by the DOC, who had any responsibility for the development, drafting, reView or approval of the each and every revision to the "Penitentiary Directive No. 09.049," and specifY for each person the specific Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 67 of 74 responsibilities that he or she had, for the following revisions. Answer to Interrogatory No.2: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15:570(F) and (0). Interrogatory No.3: IdentifY each person and set forth his or her responsibilities, whether or not employed by the DOC, who had any responsibility for the development, drafting, review or approval of each and every to the "Internal Procedures for Execution" checklist Answer to Interrogatory No.3: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15 :570(F) and (0). Interrogatory No.4: State whether there have been any reVISIOns to the State of Louisiana's lethal injection protocol between January 7, 2010, and January 9, 2013, and if so, provide a description of such revisions and identifY the individuals responsible for such revisions. Answer to Interrogatory No.4: In addition to the general objections noted above, Defendants further object to thls interrogatory as irrelevant because the litigation concerns the current lethal injection protocols and not revisions to prior versions thereof. Also, Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15:570(F) and (0). Interrogatory No.5: State in detail the reasons for each and every change made to "Penitentiary Directive No. 09.049" between 2010 and the present. Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 68 of 74 Answer to Interrogatory No.5: In addition to the general objections noted above, Defendants further object to this interrogatory as irrelevant because the litigation concerns the current lethal injection protocols and not revisions to prior versions thereof. Interrogatory No.6: Identify the person or persons responsible for ordering, procuring, receiving, preparing, delivering and/or inspecting all drugs to be used in lethal injection. Answer to Interrogatory No.6: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15:570(F) and (G). Interrogatory No.7: Describe in detail any plans or procedure by which you will modify or alter any aspect of the lethal-injection process, including calculation of dosages or administration of the injection to account for inmate variations including, but not limited to, such as consideration of inmate weight, height, past or current intravenous drug use, medication, and venous integrity. Answer to Interrogatory No.7: In addition to the general objections noted above, Defendants further object to this interrogatory as speculative and irrelevant because the litigation concerns the current lethal injection protocols and not potential modifications by Defendants in the future or in response to a hypothetical situation. Interrogatory No.8: With respect to all individuals involved in past or expected to be involved in future executions by lethal injection, including witnesses, please state the medical training of such Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 69 of 74 individuals, including licensure and the status thereof. Answer to Interrogatory No, 8: In addition to the general objections noted above, Defendants further object to this interrogatory as speculative and irrelevant because the litigation concerns the current lethal injection protocols. The licensure of individuals involved in past executions by lethal injection is irrelevant. Furthermore, Defendants object to the release of any licensure information on the basis that this information is made confidential pursuant to La. RS. l5:570(F) and (G). Notwithstanding these objections, please see the previously provided protocols for the information requested in this interrogatory. Interrogatory No.9: Describe in detail the qualifications, credentials, and any medical or scientific expertise of the person(s) responsible for drafting and/or revising any and all lethal injection procedures in Louisiana, including all revisions thereto. Answer to Interrogatory No.9: In addition to the general objections noted above, Defendants further object to this interrogatory as overly broad in scope and irrelevant because the litigation concerns the current lethal injection protocols, not prior versions andlor revisions of the protocols. The qualifications of those persons involved in drafting prior versions of the protocols andlor revising the protocols is irrelevant. Furthermore, Defendants object to the release of any information tending to identify any persons involved in the drafting of the current protocols on the basis that this information is made confidential pursuant to La. R.S. 15 :570(F) and (G). Nor is the inclusion of a person with "medical or scientific experience" mandated by the constitution. Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 70 of 74 Interrogatory No. 10: IdentifY all persons consulted in designing or modifYing Louisiana's lethal injection procedures and explain why those person(s) were selected for planning, reviewing and consultation. Answer to Interrogatory No. 10: In addition to the general objections noted above, Defendants further object to this interrogatory as overly broad in scope and irrelevant because the litigation concerns the current lethal injection procedures, not prior versions and/or modifications of the procedures. Furthermore, Defendants object to the release of any information tending to identifY any person(s) who may have consulted in designing or modifYing the lethal injection procedures as the same is made confidential pursuantto La. R.S. 15:570(F) and (G). Interrogatory No. 11: IdentifY all persons responsible for monitoring equipment during an execution and list that person's or persons' qualifications, training and experience and any criteria used in evaluating their effectiveness. Answer to Interrogatory No. 11: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15 :570(F) and (G). Interrogatory No. 12: IdentifY all individuals mentioned in the lethal injection protocol provided to undersigned counsel in accordance with the Court's order dated June 4, 2013 (Docket Entry 62). Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 71 of 74 Answer to Interrogatory No. 12: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. l5:570(F) and (G). Interrogatory No. 13: Describe in detail the minimum qualifications and expertise required of any and all individuals who are given the responsibility and discretion to order the staff to deviate from the established lethal-injection procedures, if necessary, to avoid inflicting severe and unnecessary pain and suffering on the condenmed prisoner, and the established criteria, if any, that shall be used in exercising this discretion. Answer to Interrogatory No. 13: Defendants object on the basis that this interrogatory seeks information that is made confidential pursuant to La. R.S. 15:570(F) and (G). Moreover, Defendants object to this interrogatory on the basis that it is vague and incorrectly assumes that deviation from the established lethal-injection procedures is necessary. Notwithstanding these objections, Defendants state that no one has power to deviate from the current protocols. Interrogatory No. 14: List and describe any and all medical information pertaining to condenmed inmates that IS recorded immediately before execution, during the execution process, or immediately following the execution. Answer to Interrogatory No. 14: Defendants object to this interrogatory as vague and ambiguous. It is completely unclear for what reason this information is requested relevant to the instant litigation. Notwithstanding these objections, in accordance with the current protocols, inmates scheduled to be executed are seen regularly by both medical and mental health professionals prior to the execution. During Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 72 of 74 the execution, both a physician and the coroner are present. Both the physician and the coroner will confirm death. Interrogatory No. 15: Describe in detail any problems, malfunctions, or abnormalities encountered in any previous lethal injection carried out by the State of Louisiana (including, without limitation leakage of IV lines, respiration after administration of a lethal substance, and/or low postmortem lethal substance levels). Answer to Interrogatory No. 15: In addition to the general objections noted above, Defendants further object to this interrogatory as overly broad in both scope and time. Defendants further object because the litigation concerns the current lethal injection protocols, and any problems, malfunctions, or abnormalities encountered in prior lethal injections are irrelevant as they would relate to executions while using a different drug. Notwithstanding these objections, Defendants are aware of such problems, malfunctions, or abnormalities. Respectfully Submitted: /s Jacqueline B. Wilson E. Wade Shows, La. Bar Roll No. 7637, wade@scwllp.com James 1. Hilburn, La. Bar Roll No. 20221, jamesh@scwllp.com Jeffrey K. Cody, La. Bar Roll No. 28536, jeffreyc@scwllp.com Jacqueline B. Wilson, La. Bar Roll No. 31055, jbw@scwllp.com SHOWS, CALI, & WALSH, L.L.P. 628 St. Louis Street (70802) P.O. Drawer 4425 Baton Rouge, Louisiana 70821 Telephone: (225) 346-1461 Facsimile: (225) 346-1467 Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 73 of 74 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served upon counsel for Jessie Hoffinan and counsel for Christopher Sepulvado via e-mail and/or by depositing same in the U.S. Mail, postage prepaid and properly addressed on this 30th day of September, 2013. sf Jacqueline B. Wilson Jacqueline B. Wilson Case 3:12-cv-00796-JJB-SCR Document 76-2 10/21/13 Page 74 of 74 Exhibit B Responses to Defendants' Individual Objections Requests for Production of Documents. Requests for Production of Document One The Defendants' objection to Request for Production No. 1 on grounds that it is "overly board [sic]" is insufficient for the grounds stated supra in Section IV. Requests for Production of Document Two The Defendants' objections to Request for Production No. 2 on grounds that it is "overly board [sic]" and seeks information subject to the deliberative process privilege are insufficient for the grounds stated supra in Sections II-B and IV. Requests for Production of Document Three The Defendants' objections to Request for Production No. 3 on grounds that it is "overly board [sic]" and seeks information subject to the deliberative process privilege are insufficient for the grounds stated supra in Sections II-B and IV. Requests for Production of Document Four The Defendants' objection to Request for Production No. 4 on grounds that it is "overly board [sic]" is insufficient for the grounds stated supra in Section IV. Additionally, Defendants' assertion that "information relating to old drugs is irrelevant to this litigation" is insufficient as a matter of law for the grounds stated supra in Section III, and additionally should be overruled because this information is relevant to Claim III in the Amended Complaint and to Plaintiffs' Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 1 of 12 allegation that the lethal injection drug will expire in advance of the execution. See Rec. Doc. 67, at ? 69. The Defendants ultimately disclosed four pages in response to this request. Requests for Production of Document Five The Defendants' objection to Request for Production No. 5 on grounds that it seeks information subject to the deliberative process privilege is insufficient for the grounds stated supra in Section II-B. Additionally, information regarding the reason why the DOC decided to being using pentobarbital is relevant to inform the Plaintiffs' allegations that pentobarbital is likely to cause serious harm to the condemned inmate. See Rec. Doc. 67, at ? 40. Notably, the district court in Baze v. Rees considered just this type of information during the trial on the merits of the challenge to the constitutionality of Kentucky's lethal injection protocol. Baze v. Rees, No. 04-CI-010194, 2005 WL 5797977 (Ky. Cir. Ct. July 8, 2005), aff'd, 217 S.W.3d 207 (Ky. 2006), aff'd, 553 U.S. 35 (2008).1 Requests for Production of Document Six The Defendants' objection to Request for Production No. 6 on grounds that it seeks information subject to the deliberative process privilege is insufficient for the grounds stated supra in Section II-B. Additionally, information regarding the reason why the DOC decided to being using pentobarbital is relevant to inform the Plaintiffs' allegations that pentobarbital is likely to cause serious harm to the condemned inmate. See Rec. Doc. 67, at ? 40. Notably, the 1 Since Oklahoma's adoption in 1977, thirty-seven States have approved lethal injection as a means of execution. However, there is scant evidence that ensuing States' adoption of lethal injection was supported by any additional medical or scientific studies that the adopted form of lethal injection was an acceptable alternative to other methods. Rather, it is this Court's impression that the various States simply fell in line relying solely on Oklahoma's protocol from Dr. Deutsch in drafting and approving a lethal injection protocol. Kentucky is no different. Id. 2 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 2 of 12 district court in Baze v. Rees considered just this type of information during the trial on the merits of the challenge to the constitutionality of Kentucky's lethal injection protocol. Baze v. Rees, No. 04-CI-010194, 2005 WL 5797977 (Ky. Cir. Ct. July 8, 2005), aff'd, 217 S.W.3d 207 (Ky. 2006), aff'd, 553 U.S. 35 (2008).2 Requests for Production of Document Seven The Defendants' objection to Request for Production No. 7 on grounds that it is "seeks confidential information" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Requests for Production of Document Eight The Defendants' objection that "this request for production is irrelevant since there are currently no executions scheduled to take place" is insufficient as a matter of law for the grounds stated supra in Section III. Additionally, this objection is especially absurd given that the Defendants have strenuously objected to Mr. Sepulvado and his counsel requesting this information after an execution date had been set. The Defendants ultimately disclosed seven pages in response to this request. Requests for Production of Document Nine 2 Since Oklahoma's adoption in 1977, thirty-seven States have approved lethal injection as a means of execution. However, there is scant evidence that ensuing States' adoption of lethal injection was supported by any additional medical or scientific studies that the adopted form of lethal injection was an acceptable alternative to other methods. Rather, it is this Court's impression that the various States simply fell in line relying solely on Oklahoma's protocol from Dr. Deutsch in drafting and approving a lethal injection protocol. Kentucky is no different. Id. 3 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 3 of 12 The Defendants' objection that "this request for production is irrelevant since there are currently no executions scheduled to take place" is insufficient as a matter of law for the grounds stated supra in Section III. Additionally, this objection is especially absurd given that the Defendants have strenuously objected to Mr. Sepulvado and his counsel requesting this information after an execution date had been set. Requests for Production of Document Ten The Defendants' objection that "this request for production is irrelevant since there are currently no executions scheduled to take place" is insufficient as a matter of law for the grounds stated supra in Section III. Additionally, this objection is especially absurd given that the Defendants have strenuously objected to Mr. Sepulvado and his counsel requesting this information after an execution date had been set. Requests for Production of Document Eleven The Defendants' objection to Request for Production No. 11 on grounds that it is "overly board [sic]" is insufficient for the grounds stated supra in Section IV. Tellingly, while Defendants object to the "vague" term "equipment," they seem to understand what the term means in their response identifying a pulsometer and heart monitor as "equipment used for monitoring an inmate's physiological condition." Requests for Production of Document Twelve The Defendants' objections to Request for Production No. 12 on grounds that it is "overly board [sic], [and] unduly burdensome" and seeks information subject to the deliberative process privilege are insufficient for the grounds stated supra in Sections II-B and IV. Additionally, prior versions of the execution protocol are relevant to Plaintiffs' allegations that 4 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 4 of 12 the Defendants have a pattern of amending the execution protocols on the eve of executions, in violation of the Equal Protection Clause. Requests for Production of Document Thirteen The Defendants' objection to Request for Production No. 13 on grounds that it is "seeks confidential information" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A (and, in any event, La. Rev. Stat. ? 15:570 would not apply to this request even in a state court). Additionally, information regarding prior executions is relevant to Plaintiffs' Equal Protection claim. See Rec. Doc. 67, at 20. Requests for Production of Document Fourteen The Defendants' objections that these requests for productions are "irrelevant since no prior execution has used the current drug" is insufficient both as a matter of law, see supra Section III, and as a matter of fact because this information is relevant to Plaintiffs' Equal Protection claim and Eighth Amendment claim. See Rec. Doc. 67, at 19-20. The Defendants' objection to Request for Production No. 14(k) on grounds that it is "seeks confidential information" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Requests for Production of Document Fifteen The Defendants' objection to Request for Production No. 15 on grounds that it is "overly broad in scope and time and irrelevant since there are currently no executions scheduled to take place" is insufficient for the grounds stated supra in Sections III and IV. Requests for Production of Document Sixteen The Defendants' objection to Request for Production No. 16 on grounds that it is "overly broad in scope and time and irrelevant since there are currently no executions scheduled to take 5 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 5 of 12 place" is insufficient for the grounds stated supra in Sections III and IV. Additionally, in just the past week Morris Dickson has become embroiled in controversy regarding the lethal injection drug in Missouri, which ultimately caused an execution to be called off.3 Any information regarding Defendants' relationship with Morris Dickson is relevant to Plaintiffs' claims and allegations regarding the lethal injection drug. Requests for Production of Document Seventeen The Defendants' objection to Request for Production No. 17 on grounds that it is "seeks confidential information" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. The Defendants ultimately disclosed two pages in response to this request. Requests for Production of Document Eighteen The Defendants' objection to Request for Production No. 18 on grounds that it "irrelevant since there are currently no executions scheduled" is insufficient for the grounds stated supra in Section III. Additionally, this information is relevant to Plaintiffs' allegations that the members of the execution team have not received medical training, are not familiar with the execution drug, and have not received adequate training as to the protocol. See Rec. Doc. 67, ? 67, 71, 79, 80. The Defendants ultimately disclosed thirty-five heavily redacted pages in response to this request. 3 See Jeremy Kohler, Missouri Returning Execution Drug To Supplier, ST. LOUIS POSTDISPATCH, Oct. 10, 2013, available at http://www.stltoday.com/news/local/crime-andcourts/missouri-returning-execution-drug-to-supplier/article_0382fc6a-728c-5c5d-b31be16dadf1a778.html; Kelsey Proud, Execution Using Controversial Drug Halted By Missouri Governor, Requires Different Injection Method, NPR News, Oct. 11, 2013, available at http://news.stlpublicradio.org/post/execution-using-controversial-drughalted-missouri-governor-requires-different-injection-method. 6 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 6 of 12 Interrogatories Interrogatory One The Defendants' objection to Interrogatory No. 1 on grounds that it is "seeks the manufacturer's name as that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Additionally, the Defendants' objection that this is irrelevant as it relates to previously carried out executions is unfounded. The Plaintiffs claim, among other things, that the Defendants have failed to carry out executions in compliance with the Equal Protection clause of the Fourteenth Amendment which is Claim III in the Amended Complaint and to Plaintiffs' allegation that the lethal injection drug will expire in advance of the execution. See Rec. Doc. 67, at ? 69. That claim requires an understanding of how past executions were carried out, the process by which the Defendants' update or change their protocols, and the procedural safeguards in place to ensure that the protocols are adhered to and practiced for a reasonable amount of time. Plaintiffs submit that these procedural safeguards are necessary to comply with the constitution. The Defendants' objection on the grounds that no execution is scheduled is equally unfounded. As the Defendants' are well aware and have argued in their Motions to Dismiss, Courts have found that issues regarding lethal injection protocols become ripe once a change in a lethal injection protocol is discovered by a Plaintiff. Defendants cannot be allowed to argue statute of limitations on the one hand and then claim that the information sought is not relevant to the litigation. Significantly, the Defendants have stated no objection to providing the lot number of the pentobarbital, and yet have failed to disclose it. Interrogatory Two 7 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 7 of 12 The Defendants' objection to Interrogatory No. 2 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Three The Defendants' objection to Interrogatory No. 3 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Four The Defendants' objection to Interrogatory No. 4 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. The Defendants' objection that this is irrelevant as it relates to previously carried out executions is unfounded. The Plaintiffs claim, among other things, that the Defendants have failed to carry out executions in compliance with the Equal Protection clause of the Fourteenth Amendment which is Claim III in the Amended Complaint and to Plaintiffs' allegation that the lethal. That claim requires an understanding of how past executions were carried out, the process by which the Defendants' update or change their protocols, and the procedural safeguards in place to ensure that the protocols are adhered to and practiced for a reasonable amount of time. Plaintiffs submit that these procedural safeguards are necessary to comply with the constitution. Interrogatory Five The Defendants' objection to Request for Production No. 5 on grounds that it "irrelevant because the litigation concerns the current lethal injection protocols and not revisions to prior 8 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 8 of 12 versions thereof" is insufficient for the grounds stated supra in Section III, and additionally, as stated above, this information is relevant and exactly the type of information that was presented as evidence at the trial in Baze v. Rees. The Amended Complaint also makes several allegations regarding the lack of review of the current protocol. See Rec. Doc. 67, at p. 14, ?? 57-60. Interrogatory Six The Defendants' objection to Interrogatory No. 6 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Seven The Defendants' objection to Request for Production No. 7 on grounds that it "speculative and irrelevant because the litigation concerns the current lethal injection protocols and not potential modifications by Defendants in the future or in response to a hypothetical situation" is insufficient for the grounds stated supra in Section III. The Defendants' objection that this is irrelevant as it relates to how future executions are carried out executions is unfounded. The Plaintiffs claim, among other things, that the Defendants have failed to carry out executions in compliance with the Equal Protection clause of the Fourteenth Amendment which is Claim III in the Amended Complaint and to Plaintiffs' allegation that the lethal. That claim requires an understanding of how the defendants plan to carry out future executions, the process by which the Defendants' update or change their protocols, and the procedural safeguards in place to ensure that the protocols are adhered to and practiced for a reasonable amount of time. The Amended Complaint clearly alleges that "[t]he protocols are not adequately specific, and as such the execution may be carried out in different manners each time," Rec. Doc. 67, at ? 75, and 9 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 9 of 12 "the purported protocol will not be carried out in accordance with the written instructions," id. at ? 62. Interrogatory Eight The Defendants' objection to Request for Production No. 8 on grounds that it "speculative and irrelevant" is insufficient for the grounds stated supra in Section III. Information regarding past executions is relevant to show a pattern of practice by the Defendants, and it is curious that Defendants object to disclosing any information regarding "future executions," as the Plaintiffs themselves will be subject to executions in the future. Additionally, the Defendants' objection on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Nine The Defendants' objection to Request for Production No. 5 on grounds that it "irrelevant because the litigation concerns the current lethal injection protocols and not revisions to prior versions thereof" is insufficient for the grounds stated supra in Section III, and additionally, as stated above, this information is relevant and exactly the type of information that was presented as evidence at the trial in Baze v. Rees. The Amended Complaint also makes several allegations regarding the lack of review of the current protocol. See Rec. Doc. 67, at p. 14, ?? 57-60. Interrogatory Ten The Defendants' objections to Interrogatory No. 10 on grounds that it is seeks information that is "made confidential" pursuant to La. Rev. Stat. ? 15:570, and is "overly broad in scope and irrelevant," are insufficient for the grounds stated supra in Sections II-A, III, and IV. 10 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 10 of 12 The Defendants' objection that this is irrelevant as it relates to previously carried out executions is unfounded. The Plaintiffs claim, among other things, that the Defendants have failed to carry out executions in compliance with the Equal Protection clause of the Fourteenth Amendment which is Claim III in the Amended Complaint and to Plaintiffs' allegation that the lethal. That claim requires an understanding of how past executions were carried out, the process by which the Defendants' update or change their protocols, and the procedural safeguards in place to ensure that the protocols are adhered to and practiced for a reasonable amount of time. Plaintiffs submit that these procedural safeguards are necessary to comply with the constitution. Interrogatory Eleven The Defendants' objection to Interrogatory No. 11 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Twelve The Defendants' objection to Interrogatory No. 12 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. Interrogatory Thirteen The Defendants' objection to Interrogatory No. 13 on grounds that it is "seeks information that is made confidential" pursuant to La. Rev. Stat. ? 15:570 is insufficient for the grounds stated supra in Section II-A. The boilerplate objection of "vagueness" is insufficient for the reasons stated supra in Section IV. Interrogatory Fourteen 11 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 11 of 12 The Defendants' objection to Interrogatory No. 14 on grounds that it is "vague and ambiguous" is insufficient for the reasons stated supra in Section IV. Interrogatory No. 14 asks for the specific type of information that is recorded regarding an inmate's condition before, during, and after the execution. This type of information was notably found critical in the recent decision in Arthur v. Thomas, 2013 WL 5434694, *8-12 (M.D. Ala. Sept. 30, 2013). The proffered answer given by the Defendants, in actuality, is vague and ambiguous. The Defendants vaguely state that the condemned inmate "is seen regularly by both medical and mental health professionals," and that a physician and a coroner "will confirm death." No detail is given as to the type of data collected, how, if at all, consciousness is assessed, or how death is confirmed. Interrogatory Fifteen The Defendants' objections to Interrogatory No. 15 on grounds that it is "overly broad both in scope and time," and "irrelevant as they would relate to executions while using a different drug," are insufficient for the reasons stated supra in Sections III and IV. This information is limited in scope and time--Louisiana has executed only 8 people using lethal injection, between 1993 and 2010--and will inform many of the allegations in the Amended Complaint. See, e.g., Rec. Doc. 67, at ?? 62-66, 82-83. 12 Case 3:12-cv-00796-JJB-SCR Document 76-3 10/21/13 Page 12 of 12