[00:00:01] Speaker 03:
Good afternoon, counsel.

[00:00:04] Speaker 02:
Good afternoon, your honor.

[00:00:06] Speaker 03:
Please proceed.

[00:00:08] Speaker 02:
May it please the court.

[00:00:09] Speaker 02:
My name is Christina Shendley.

[00:00:11] Speaker 02:
I represent the Idaho Department of Correction.

[00:00:13] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:16] Speaker 03:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:21] Speaker 03:
Thank you, your honor.

[00:00:23] Speaker 02:
IDOC articulated a real and present risk to confidential execution information and its discovery responses and responses to the motions to compel below.

[00:00:35] Speaker 02:
At this time, IDOC seeks an order vindicating its clear right to protect that vulnerable information.

[00:00:42] Speaker 02:
Plaintiff seeks information that will compromise IDOC's ability to carry out a lawfully ordered judgment of execution.

[00:00:51] Speaker 02:
How, counsel?

[00:00:53] Speaker 02:
Your honor, the harm that is posed by the order disclosures is that IDOC's execution chemical source and supplier will be disclosed.

[00:01:04] Speaker 02:
And IDOC submits that that will occur because there is a kaleidoscope of information already available to plaintiff.

[00:01:13] Speaker 01:
You made that argument to the district court, right?

[00:01:16] Speaker 02:
Yes, your honor.

[00:01:17] Speaker 01:
And you're not really challenging on appeal the district court's standard.

[00:01:23] Speaker 01:
You said even under the district court's standard, the district court got it wrong, correct?

[00:01:27] Speaker 01:
Yes, your honor.

[00:01:30] Speaker 01:
And basically what the court had to do, correct me if I'm wrong, is take the answers that you object to collectively

[00:01:39] Speaker 01:
and look at the impact that that would have or not have on the disclosure of the information which you want to keep secret, right?

[00:01:48] Speaker 01:
Yes, Your Honor.

[00:01:50] Speaker 01:
Where is it?

[00:01:52] Speaker 01:
Because I'm having trouble finding it.

[00:01:55] Speaker 01:
If we take all of that, and I know we'll get into some jurisdiction questions, but assuming there is collateral order jurisdiction here, I'm having trouble seeing how the district court abused its discretion, which you agree is the correct standard, right?

[00:02:10] Speaker 01:
Yes, Your Honor.

[00:02:11] Speaker 01:
So tell me what your best argument is that the district court abused its discretion.

[00:02:16] Speaker 02:
Thank you, Your Honor.

[00:02:17] Speaker 02:
The district court in this matter abused its discretion by imposing an illogical test and requirement on the Department of Corrections.

[00:02:26] Speaker 02:
But I thought you said that you didn't have any objection to the standard that was used.

[00:02:32] Speaker 02:
The standard was correct to the extent that the district court recognized that the Department of Correction has a legitimate interest in protecting execution information.

[00:02:44] Speaker 02:
Where the district court erred, Your Honor, is by requiring the department to produce concrete examples where very same disclosures resulted in the identification of other states' sources.

[00:02:58] Speaker 02:
The Department of Correction was unable to produce such concrete examples

[00:03:03] Speaker 02:
partly because the department was not on notice.

[00:03:05] Speaker 02:
That would be a requirement, but also for continuance to in order to get that information.

[00:03:11] Speaker 02:
Your honor, we didn't have a hearing.

[00:03:13] Speaker 02:
It was decided on the briefing.

[00:03:15] Speaker 03:
And so the district, did you ask for a reconsideration?

[00:03:18] Speaker 03:
We did not, your honor.

[00:03:20] Speaker 03:
So what is the breach of confidentiality that would arise by knowing the source of the

[00:03:28] Speaker 03:
What's the, what's confidential about that?

[00:03:32] Speaker 02:
Your honor, the source of the chemical is protected under state law and the department recognizes that that is not a federal evidentiary and discovery privilege, but it is a factor that the district court considered and this court should consider in the undue burden analysis.

[00:03:48] Speaker 03:
But as a practical matter, I'm just trying to get to what is the

[00:03:52] Speaker 03:
danger, what's the risk to confidentiality, what will happen if these drugs are disclosed, what's the dire event that will happen?

[00:04:02] Speaker 02:
The dire event is that the department will be unable to secure chemical for an execution and that with that inability, the department will not be able to carry out

[00:04:14] Speaker 02:
the execution of Gerald Pizzuto.

[00:04:16] Speaker 01:
So, counsel, you know, I look at what the district court did in a more granular way, because although I agree, we need to combine all of the district court's rulings and look at the impact

[00:04:29] Speaker 01:
of all of the disclosures, but the district court took them up one at a time.

[00:04:34] Speaker 01:
I'll give you one example.

[00:04:36] Speaker 01:
The district court said, defendants' arguments are speculative and conclusory.

[00:04:41] Speaker 01:
They have not explained how their supplier could be identified if the report date is disclosed.

[00:04:48] Speaker 01:
So I agree with you that if the supplier is identified from this information, there's a real problem here and that

[00:04:57] Speaker 01:
uh... idaho would have in my mind a good argument but the district court looked at your argument and said they haven't explained how their supplier could be identified were the report date disclosed and and that's on er twenty-three and there are similar dis

[00:05:14] Speaker 01:
decisions by the district court on each of the disputed discovery.

[00:05:19] Speaker 01:
But let's take this one.

[00:05:20] Speaker 01:
How did the district court abuse its discretion in saying, you haven't explained how the supplier could be identified if the report date is disclosed?

[00:05:29] Speaker 01:
Because that's one of the things at issue, right?

[00:05:31] Speaker 02:
Yes, Your Honor.

[00:05:32] Speaker 02:
The report date is a piece of information that can link back to the manufacturer of the chemical.

[00:05:39] Speaker 01:
Can link back?

[00:05:41] Speaker 02:
Yes, Your Honor.

[00:05:42] Speaker 02:
And it is that link that would then produce information from which the chemical supplier, I'm sorry, the chemical manufacturer could be identified.

[00:05:50] Speaker 03:
How would it link back just as a practical matter?

[00:05:55] Speaker 03:
How would the report date on the certificate of analysis point someone to the provider?

[00:06:02] Speaker 02:
It would identify when the results were, when the chemicals were submitted for testing and when that testing was complete.

[00:06:08] Speaker 03:
So your theory is someone could take the,

[00:06:11] Speaker 03:
the date of the testing was complete, and through that date, what source would they go to to find out who the manufacturer was from that day?

[00:06:21] Speaker 02:
Your Honor, the department's understanding is that the FDA keeps track of when chemicals are supported.

[00:06:27] Speaker 02:
It's part of their testing analysis.

[00:06:29] Speaker 02:
And the plaintiff is aware, because the defendants have disclosed, that the manufacturer is an FDA-approved manufacturer.

[00:06:40] Speaker 03:
So is your theory that they would do like a Freedom of Information Act request and see all of the certificates?

[00:06:47] Speaker 03:
I'm sure there wasn't only one a day that was granted.

[00:06:51] Speaker 03:
See which certificates were granted on that day and then try to drill down into which one was the one that supplied the Idaho Department of Corrections the drugs, the chemicals?

[00:07:01] Speaker 02:
Yes, Your Honor, that is one of the risks that is run by that disclosure.

[00:07:05] Speaker 03:
Is that practical, though?

[00:07:08] Speaker 02:
the defendants respectively submitted is.

[00:07:10] Speaker 02:
It's practical because those kinds of searches are happening, and they're happening daily by anti-death penalty advocates.

[00:07:19] Speaker 01:
I understood from the record that you were making exactly the argument that Judge Rawlinson asked you if you were making, but what I don't understand, and maybe this was addressed and I missed it,

[00:07:33] Speaker 01:
And those requests would be, if the information wasn't provided, somebody could go to state court to challenge them, right?

[00:07:42] Speaker 01:
Yes, Your Honor.

[00:07:43] Speaker 01:
So why wouldn't these types of objections come within a disclosure exception in Idaho law that Idaho could raise or the particular agency could raise in response to those Idaho FOIA requests?

[00:08:03] Speaker 02:
they would be objected to under Idaho FOIA requests.

[00:08:05] Speaker 01:
And nobody could come to federal court except the US, theoretically, I guess, the US Supreme Court.

[00:08:11] Speaker 01:
Nobody could come back to the district court and say, hey, the Idaho court got it wrong, correct?

[00:08:18] Speaker 03:
But those objections would not apply to a FOIA request to the FDA, which is a federal agency.

[00:08:24] Speaker 02:
Correct.

[00:08:26] Speaker 02:
An objection under the Idaho Public Records Act would not apply to a Freedom of Information Act request to FDA.

[00:08:33] Speaker 02:
But in addition, those objections do not apply in this litigation with Mr. Pizzuto.

[00:08:39] Speaker 01:
But weren't you arguing below that the problems you had with the Freedom of Information request were going to be to Idaho state agencies?

[00:08:48] Speaker 02:
So that is one of the paths that can be utilized to obtain information and get to the source of IDOC's chemicals.

[00:08:59] Speaker 02:
So one of the things that the district court determined was that Idaho Department of Corrections analogy to a bull's eye on the map was not a well taken analogy.

[00:09:13] Speaker 02:
The Department of Corrections respectfully disagrees with that.

[00:09:18] Speaker 02:
That is exactly what happens in these cases.

[00:09:21] Speaker 02:
And it's not just plaintiff that the Department of Corrections is worried about.

[00:09:26] Speaker 02:
There are a multitude of other individuals that are peppering

[00:09:29] Speaker 02:
agencies across Idaho and across the United States with these types of requests for information.

[00:09:35] Speaker 02:
And the information's then gleaned and consolidated.

[00:09:39] Speaker 02:
It creates a mosaic of information.

[00:09:41] Speaker 02:
So the otherwise innocuous information that can be obtained from one single request then becomes much more important in the grander scheme of things.

[00:09:52] Speaker 01:
I'm sorry, no, please.

[00:09:53] Speaker 03:
Could the information be made available to the defendant subject to a protective order?

[00:10:00] Speaker 02:
Your Honor, there is a protective order in this case, and defendants are aware of that.

[00:10:04] Speaker 02:
We have the ability to mark information as attorney's eyes only.

[00:10:08] Speaker 03:
But does it cover these requests?

[00:10:11] Speaker 02:
That is the defendant's concern, Your Honor.

[00:10:13] Speaker 02:
These are requests for admission, so this is information, not documents.

[00:10:18] Speaker 02:
There's two requests for documents at issue here, but most of the disclosures that were ordered are the

[00:10:25] Speaker 02:
director, the defendant's responses to requests for admission, meaning that it's information that will live solely in the head of counsel for Pezzuto.

[00:10:36] Speaker 02:
And that's the problem with the protective order.

[00:10:38] Speaker 02:
The protective order can't protect against that information and those answers being out on paper.

[00:10:45] Speaker 03:
Well, the protective order could prohibit counsel from further disclosing the information.

[00:10:52] Speaker 03:
and using it only for purposes of this litigation.

[00:10:55] Speaker 02:
Your Honor, that is true.

[00:10:56] Speaker 02:
The issue with that particular idea of protection is that in this very case, the parties ended up with a stipulation to amend the protective order.

[00:11:08] Speaker 02:
In this case, counsel was relying upon discovery in Pizzuto's case, in a companion case unrelated to Pizzuto.

[00:11:16] Speaker 02:
When that came to light- Talking about Creech?

[00:11:18] Speaker 02:
Yes, Your Honor.

[00:11:19] Speaker 02:
When that came to light, the defendants understood the issues that were raised.

[00:11:24] Speaker 02:
And we did file a notice of non-objection to a protective order being amended to allow the information that was shared to be used by counsel in Creech.

[00:11:34] Speaker 02:
The issue with the protective order, Your Honor, is that the same counsel that represent Mr. Pezzuto and Mr. Creech also represent seven other death row inmates in Idaho.

[00:11:44] Speaker 02:
There are a total of four attorneys that represent nine IDOC

[00:11:48] Speaker 02:
And that is the concern with the protective order.

[00:11:52] Speaker 02:
And the defendants are not alleging or accusing anyone of disclosing information that's been deemed confidential in order to remain confidential.

[00:12:03] Speaker 02:
The problem is that inadvertent

[00:12:05] Speaker 02:
Inadvertent omissions, sorry, inadvertent disclosures do happen.

[00:12:10] Speaker 02:
And those inadvertent disclosures are the problem that the defendants are trying to protect against.

[00:12:15] Speaker 01:
So, counsel, I want to get to another one of these on a, again, a fairly granular basis.

[00:12:21] Speaker 01:
One of the objections was whether the drugs came, you asked, veterinary source, hospital, wholesale or retailer or pharmacy, right?

[00:12:30] Speaker 02:
Yes, your honor.

[00:12:30] Speaker 01:
And plaintiff put in a deck from Dr. Almgren, if I'm pronouncing her name correctly, that there are thousands of these things out there.

[00:12:42] Speaker 01:
This isn't going to help.

[00:12:44] Speaker 01:
That's what she said, right?

[00:12:46] Speaker 02:
Yes, Your Honor.

[00:12:47] Speaker 01:
And the district court said, you said it's going to lead to the source being identified through a process of elimination.

[00:12:53] Speaker 01:
The district court described what you said as a bare assertion that apparent identification concerns exist.

[00:13:00] Speaker 01:
The district court, as far as I can see, looked at your argument

[00:13:04] Speaker 01:
and Pizzuto's argument and said, you know, it just doesn't work.

[00:13:09] Speaker 01:
And what I'm having trouble with is seeing, given the very deferential standard of review, if we reach the merits, how the district court abused its discretion.

[00:13:20] Speaker 01:
For example, on this one.

[00:13:22] Speaker 02:
Thank you, Your Honor.

[00:13:23] Speaker 02:
With respect to this particular, I believe it involved several different of the RFAs.

[00:13:27] Speaker 01:
Yeah, 190, 191, 194.

[00:13:29] Speaker 01:
Yes, Your Honor.

[00:13:31] Speaker 02:
With respect to those RFAs, the district court erred by refusing to acknowledge plausible inferences that were raised and presented by the defendants.

[00:13:41] Speaker 02:
It appeared that the district court disregarded all of the defendant's plausible arguments and inferences, instead relying upon Professor or Dr. Almgren's declaration.

[00:13:54] Speaker 02:
Her declaration recites to thousands of

[00:13:57] Speaker 02:
pharmacies that exist across the United States, but doesn't acknowledge that once you limit and create that smaller target within a region, within a state, and within a town, that the number of potentials become much more small.

[00:14:17] Speaker 02:
And that is what the problem is, and that's the danger that IDOC identified that the district court disregarded.

[00:14:24] Speaker 02:
by requiring that the department provide an actual roadmap for how that bullseye could be narrowed and targeted.

[00:14:33] Speaker 02:
Defendants respectfully submit that we did provide exactly how that roadmap could be narrowed and that target could be narrowed, and it was disregarded by the district court.

[00:14:43] Speaker 02:
We noted that individuals' travel itineraries could be requested.

[00:14:48] Speaker 02:
that expense reports could be requested, and that is the very data that will narrow who went where at what time.

[00:14:57] Speaker 02:
And that's the danger that's posed by the cloud, by all of these requests that are at issue in this particular case.

[00:15:11] Speaker 02:
With respect to that, the other RFAs are also an important part of that analysis because in addition to trying to narrow down where the chemicals came from and also what type of business the supplier was, the plaintiffs already have a lot of other information.

[00:15:29] Speaker 02:
So plaintiff knows that the supplier is compliant with all state and federal licensures.

[00:15:36] Speaker 02:
The plaintiff knows that the manufacturer is FDA approved.

[00:15:40] Speaker 02:
With these additional factors, the plaintiff can take a lot further action in determining who the supplier is and who the manufacturer is.

[00:15:50] Speaker 02:
And so when it comes to undue burden, the defendants asked the district court to weigh the

[00:15:56] Speaker 02:
risk to the defendants and the benefit to the plaintiff.

[00:16:01] Speaker 02:
And that weighing simply was not logical.

[00:16:04] Speaker 02:
The court made an implausible weighing analysis and determined that the risk to the department was low in comparison to the needs of the plaintiff.

[00:16:16] Speaker 02:
Your Honor, with respect to the collateral order doctrine the defendants

[00:16:22] Speaker 02:
I wanted to clarify that this is a proper case for the court to assert jurisdiction under that doctrine, specifically on the factor of unredressability.

[00:16:32] Speaker 02:
If the court does not reverse the disclosure order, assert jurisdiction, reverse the order, the defendants will have no recourse once those disclosures are made.

[00:16:43] Speaker 02:
That is why the collateral order doctrine is appropriate in this case.

[00:16:47] Speaker 02:
And unless the court has any further questions, I would like to reserve some time for rebuttal.

[00:16:52] Speaker 02:
All right, counsel.

[00:16:53] Speaker 05:
I have a question.

[00:16:55] Speaker 05:
It appears not.

[00:16:58] Speaker 03:
My question is.

[00:16:59] Speaker 03:
Oh, Judge Gould has a question.

[00:17:00] Speaker 02:
Yes, your honor.

[00:17:02] Speaker 05:
My question is, are the responses to requests for admission, are they filed publicly in the district court?

[00:17:16] Speaker 02:
They were filed publicly in the district court with the motions to compel, your honor.

[00:17:23] Speaker 03:
All right, thank you, counsel.

[00:17:27] Speaker 03:
Thank you.

[00:17:34] Speaker 03:
Counsel for the defendant.

[00:17:39] Speaker 03:
Oh, plaintiff, I should say.

[00:17:41] Speaker 00:
Thank you, Your Honor.

[00:17:42] Speaker 00:
May it please the court?

[00:17:43] Speaker 00:
Joan Horowitz here for Mr. Pizzuto.

[00:17:46] Speaker 00:
What we just heard was 15 minutes of speculation.

[00:17:49] Speaker 00:
What we didn't hear was a reference to a single piece of evidence in the record that substantiates IDOC's fears, a citation to a single case from any court in the country approving of the withholding of this kind of information.

[00:18:04] Speaker 03:
Are there cases that have approved the provision of this kind of information?

[00:18:10] Speaker 00:
Yes, Your Honor, there are.

[00:18:11] Speaker 00:
I would direct the court to the Martin case from the Northern District of Georgia, which is the case that IDOC itself is relying on for its iteration of the test, but which in fact orders the Georgia Department of Corrections to provide, if anything, more specific information about execution processes.

[00:18:27] Speaker 03:
Any other?

[00:18:28] Speaker 00:
No, no.

[00:18:29] Speaker 03:
Any other court?

[00:18:31] Speaker 00:
Your Honor, I don't know that offhand that I could provide one.

[00:18:34] Speaker 00:
I would say just generally if the court looks at the decisions that IDOC is citing from the circuits,

[00:18:42] Speaker 00:
It's clear that the information issue in those cases is the identity of the execution supplier directly.

[00:18:48] Speaker 00:
Those are cases in which a plaintiff requested that a supplier be identified explicitly.

[00:18:55] Speaker 00:
And this is a very different situation with much more generic request for information.

[00:18:59] Speaker 01:
Let me ask you about that vis-a-vis our jurisdiction.

[00:19:03] Speaker 01:
Would you agree if hypothetically you had asked

[00:19:09] Speaker 01:
Who is the supplier of these drugs?

[00:19:11] Speaker 01:
And the district court had ordered Idaho to answer that question.

[00:19:16] Speaker 01:
Who is the supplier of these drugs?

[00:19:19] Speaker 01:
Would you agree that we would have jurisdiction under the collateral order doctrine?

[00:19:25] Speaker 00:
I would not agree with that.

[00:19:27] Speaker 01:
So your view is that even if the actual order was who supplied these drugs that are going to be used, that we wouldn't have jurisdiction, why?

[00:19:40] Speaker 00:
Your Honor, I think under Mohawk, it would certainly be a closer case on the jurisdictional question and IDOC would have a much stronger argument for invoking the collateral order doctrine, but I would still submit that under the reasoning in Mohawk, you would have essentially the same theory for jurisdiction

[00:19:57] Speaker 00:
being asserted by a party, which is there is sensitive information.

[00:20:02] Speaker 00:
It's protected by law.

[00:20:05] Speaker 00:
It will be disclosed pursuant to discovery.

[00:20:08] Speaker 00:
And that is the reason why the circuit court needs to address it immediately.

[00:20:12] Speaker 00:
And that's the argument that was rejected in Mohawk.

[00:20:14] Speaker 01:
Although here, it's like if we, I mean, their argument is that what we've been ordered to disclose is the equivalent of who supplied the drugs.

[00:20:26] Speaker 01:
I mean, that's a different question as to whether they're right or not, but that's their argument.

[00:20:30] Speaker 01:
So the plaintiff's view is even if it were absolutely here's who supplied the drugs, that wouldn't make it under the collateral order doctrine.

[00:20:42] Speaker 01:
Why?

[00:20:42] Speaker 01:
Which prong?

[00:20:44] Speaker 01:
or prongs.

[00:20:45] Speaker 00:
Yes, Your Honor.

[00:20:46] Speaker 00:
So I think the simplest answer to Your Honor's question is it would not make it under the redressability prong, because Mohawk explained that when you have a discovery dispute and you have an assertion that protected information has been erroneously ordered to be disclosed, there is a remedy for that post-final judgment.

[00:21:07] Speaker 01:
Yeah, but you can't unring that particular bell.

[00:21:12] Speaker 01:
That bell is rung forever, right?

[00:21:14] Speaker 00:
Absolutely, Your Honor, but that was also true in Mohawk, where you have the attorney-client privilege, a very venerable privilege, and information that could be extremely sensitive, that could disrupt attorney-client relationships.

[00:21:25] Speaker 01:
But that certainly didn't involve an execution drug.

[00:21:27] Speaker 00:
No, no, your honor.

[00:21:28] Speaker 00:
But I would suggest that it involved a more serious privilege and a privilege that the courts have respected for a longer period of time and something the courts are very consistent about safeguarding.

[00:21:40] Speaker 00:
So it was a compelling interest that the party in Mohawk had in asserting collateral order doctrine.

[00:21:48] Speaker 03:
Counsel, what's your response to opposing counsel's position that the information requested can be used to

[00:21:55] Speaker 03:
the identity of the provider of the chemicals.

[00:21:59] Speaker 00:
My response to that, Your Honor, is that it is incorrect and that the district court properly rejected it as being completely speculative.

[00:22:07] Speaker 00:
There is only evidence, opposing counsel just referred to inferences that might support IDC's position, but there's no evidence in the record to support those inferences.

[00:22:17] Speaker 00:
The only evidence

[00:22:18] Speaker 00:
in the record supports the opposite inferences.

[00:22:21] Speaker 00:
And that includes the declarations from Dr. Almgren that Judge Bennett referred to in which she explained in a very direct, straightforward way how all of the requests relating to both the type of supplier and the request relating to the type of, the origin of the supplier, that those could not lead anyone to narrow down in any meaningful way the source.

[00:22:45] Speaker 00:
And there is no information on the opposite side.

[00:22:46] Speaker 01:
But for you to succeed,

[00:22:48] Speaker 01:
on the appeal, putting aside the jurisdiction issue, we don't have to find that there are no inferences which could support what they're saying.

[00:22:57] Speaker 01:
We would just have to find that in looking at the evidence, the district court looking at what there could or couldn't be inferences, the district court didn't abuse its discretion in siding with you, right?

[00:23:07] Speaker 01:
Certainly.

[00:23:08] Speaker 01:
Even if we might decide it differently.

[00:23:10] Speaker 01:
If the district court was just simply weighing the evidence and the reasonable inferences and deciding where that takes the district court.

[00:23:21] Speaker 00:
Absolutely, Your Honor.

[00:23:22] Speaker 00:
That is 100% true, and this is an area of law, as you mentioned.

[00:23:26] Speaker 00:
in which appellate courts traditionally afford great deference to district court judgments.

[00:23:31] Speaker 00:
And this is an especially easy case in the sense that there is simply no evidence on the other side of the scales.

[00:23:38] Speaker 00:
And on that point, I just want to respond to a couple of the specific contentions that opposing counsel articulated.

[00:23:45] Speaker 00:
So one thing that she mentioned was

[00:23:49] Speaker 00:
geographical limitations, you could narrow it down to state, you could narrow it down to town, etc.

[00:23:55] Speaker 00:
Those aren't the discovery requests at issue.

[00:23:57] Speaker 00:
The questions that were posed about the geographical origins of these drugs were basically twofold.

[00:24:05] Speaker 00:
One, were they made in America, and two, were they made outside of America.

[00:24:09] Speaker 00:
So there's certainly no basis to vacate

[00:24:13] Speaker 00:
a well reasoned thoughtful district court decision here with reference to discovery requests that are not on the table.

[00:24:21] Speaker 00:
These were extremely broad abstract discovery requests.

[00:24:24] Speaker 00:
And that is also true of the types of businesses at issue.

[00:24:29] Speaker 00:
And as you mentioned, Dr. Omgren did explain how there are tens of thousands of veterinarians.

[00:24:34] Speaker 00:
There are 60,000 pharmacies.

[00:24:36] Speaker 00:
There are many, many places that these discovery requests refer to.

[00:24:41] Speaker 00:
And IDOC has never explained how the answers to these particular questions would narrow down the source.

[00:24:48] Speaker 01:
So I apologize for not knowing the answer to the question I should know that I'm going to ask.

[00:24:53] Speaker 01:
Did Idaho ever make a downward challenge to Dr. Almgren's declaration?

[00:25:01] Speaker 00:
Not formally, Your Honor.

[00:25:02] Speaker 00:
What IDOC did below is what it has done on appeal, which is to refer in passing to Rule 702 and to not elaborate on the 702 theory except to say that Dr. Almgren should not be relied on, essentially.

[00:25:19] Speaker 00:
And in both courts, it was a single sentence with no explanation, no discussion.

[00:25:25] Speaker 00:
And just to make an obvious point, IDOC could have presented its own expert.

[00:25:31] Speaker 00:
It could have pointed to evidence on the other side, which it didn't.

[00:25:36] Speaker 01:
They did not request a Daubert hearing.

[00:25:38] Speaker 00:
No, they did not, Your Honor.

[00:25:40] Speaker 00:
The most they have ever done as far as questioning the propriety of the district court relying on Dr. Olmgren is to say that Rule 702 ought to prevent the courts from relying on that testimony.

[00:25:55] Speaker 00:
And she is a pharmacologist, she is someone who's a specialist in this field to the extent that this court wants to look beyond the fact that there is no evidence, no countervailing evidence to call into question her own conclusions.

[00:26:09] Speaker 00:
She's certainly a qualified expert.

[00:26:13] Speaker 00:
Just one more general point about secrecy that I wanted to emphasize, which is IDOC continues to talk about this information as a mosaic, as a kaleidoscope, so on and so forth.

[00:26:25] Speaker 00:
That was the district court's approach.

[00:26:27] Speaker 00:
The district court agreed with IDOC that this information had to be weighed in the aggregate.

[00:26:33] Speaker 00:
It didn't just limit each particular request to a sort of vacuum analysis.

[00:26:39] Speaker 01:
And they won on some, right?

[00:26:40] Speaker 00:
Yes, yes, Your Honor.

[00:26:41] Speaker 00:
The district court denied a number of our motions to compel both in the order that's on appeal and in prior orders.

[00:26:48] Speaker 00:
This is a district court that's been very judicious about weighing discovery requests and protecting IDOC's interests where it's appropriate.

[00:26:59] Speaker 00:
I also...

[00:27:00] Speaker 00:
want to stress that I would encourage the court to look very closely at the record that was in front of the district court.

[00:27:07] Speaker 00:
Today, it seems to me that opposing counsel has referred to some facts that were not presented to the district court when it was adjudicating this motion to compel.

[00:27:17] Speaker 00:
So one thing in particular that jumped out at me was the idea of

[00:27:21] Speaker 00:
The manufacturer being FDA approved, that's not something that I don't believe was argued to the district court.

[00:27:29] Speaker 00:
The district court could not have abused its discretion for failing to recognize.

[00:27:33] Speaker 01:
I didn't remember that, but I haven't studied the record in the same way, obviously, you and your friend have.

[00:27:39] Speaker 00:
Yes, Your Honor, and I'll correct that representation if it's mistaken.

[00:27:43] Speaker 00:
But I don't believe that point was made to the district court.

[00:27:48] Speaker 00:
And I would also say, I don't think it's appropriate to vacate a district court order for essentially on the basis of information that IDOC has voluntarily disclosed.

[00:28:03] Speaker 00:
In other words, if IDOC's position is that it has itself narrowed the range of sources, that was its own prerogative, but the district court can't be faulted for those decisions that IDOC made.

[00:28:15] Speaker 03:
So are you saying that the information that was sought to be disclosed had already been disclosed by the Department of Corrections?

[00:28:24] Speaker 00:
I suppose, Your Honor, the fact that I had in mind when I made that statement is the FDA approval.

[00:28:30] Speaker 00:
That's something that IDOC volunteered that they did not object to.

[00:28:35] Speaker 00:
So I would caution the court against relying on this sort of narrowing theory to the extent that it's dependent on IDOC providing the information that it is now saying it should not have provided.

[00:28:49] Speaker 01:
But if I understand your argument, and again, I can certainly look at the record too, you don't recall an argument being made to the district court that there could be an FOIA request to the FDA.

[00:29:02] Speaker 00:
I don't recall that argument.

[00:29:03] Speaker 00:
The argument that I recall is the argument about public record requests to Idaho state agencies.

[00:29:08] Speaker 00:
Yes.

[00:29:09] Speaker 00:
And there, I would just underscore what I heard to be opposing counsel's statement that, in fact, the recipients of those public record requests would invoke the secrecy statute in Idaho, which would completely accommodate IDOC's concerns.

[00:29:25] Speaker 00:
That has not historically been their position.

[00:29:27] Speaker 00:
In the past, they've said,

[00:29:29] Speaker 00:
The reason that we need to keep this information from disclosure is that Idaho state offices won't understand their obligations under the shield statute.

[00:29:40] Speaker 00:
So if they would understand it, and I don't think this court has any reason to assume that those Idaho office holders would have any misunderstandings about their duties, that's an additional reason to affirm the district court here.

[00:29:55] Speaker 03:
Council, would you have any objection to the disclosure of this information under protective order that would preclude further disclosure?

[00:30:04] Speaker 00:
I don't know that I can answer that unequivocally today, standing here.

[00:30:08] Speaker 00:
What I would say is, as opposing counsel referenced, there is a protective order in place under the process.

[00:30:15] Speaker 00:
Establishing that protective order, IDOC always has the ability to designate discovery responses as confidential, as attorney eyes only.

[00:30:22] Speaker 00:
It is true that I don't know that the protective order by its terms

[00:30:29] Speaker 00:
addresses requests for admission, but I do see could easily find some.

[00:30:34] Speaker 03:
Well, but if that were a way for us to direct the court who could affirm with the condition that there be a protective order prohibiting the attorneys from further disclosing the information, why would that be objectionable?

[00:30:52] Speaker 00:
I don't know that I can say it would be objectionable.

[00:30:54] Speaker 00:
What I would suggest is that the appropriate path in that scenario would be to let the district court resolve that in the first instance.

[00:31:03] Speaker 00:
And I think that's consistent with the protective order, which gives IDOC the ability to mark information as confidential.

[00:31:10] Speaker 00:
And if we wish to challenge that determination, we can, and the district court can resolve that.

[00:31:16] Speaker 03:
So as you sit here today, you would not be willing to say that that's

[00:31:22] Speaker 03:
good way to resolve this issue.

[00:31:26] Speaker 03:
So what would be the incentive for you as counsel to disclose the information further?

[00:31:35] Speaker 00:
I don't think that we have any incentive.

[00:31:37] Speaker 00:
I just hesitate to make a concession, particularly when it comes to discovery responses that are, I think, so disconnected from the source.

[00:31:48] Speaker 00:
I honestly do not believe there would be any basis

[00:31:51] Speaker 00:
for IDOC to place under seal or prevent the public from knowing, for example, that it's a veterinarian that produced the drugs.

[00:32:00] Speaker 00:
I don't think IDOC has made any kind of policy.

[00:32:02] Speaker 03:
But if your interest is in obtaining this information for your client and not for the general public, I don't understand why there would be resistance to having it for your eyes only or to prohibit further disclosure.

[00:32:19] Speaker 00:
I'm not saying necessarily that there would be resistance, but I do think genuinely that it would be legally incorrect for IDOC to say, for example, it ought to be protected when we admit that the drug source is a veterinarian, when the only evidence in the record is that there are tens of thousands

[00:32:38] Speaker 00:
of veterinarians.

[00:32:40] Speaker 00:
I think the arguments that they would have for keeping that information from the public would likely be the same as the arguments for why that information ought to be insulated from disclosure.

[00:32:51] Speaker 00:
And in my view, those arguments are insubstantial and the district court properly rejected them.

[00:32:55] Speaker 00:
But they certainly could make those arguments again in the context of keeping information.

[00:32:59] Speaker 03:
In this particular case where those arguments made

[00:33:02] Speaker 03:
uh, regarding the protective order, was there consideration of including these within the protective order during the course of these proceedings for these, this particular request for admission?

[00:33:12] Speaker 00:
Uh, not that I'm aware of, Your Honor.

[00:33:14] Speaker 00:
I don't think that conversation happened.

[00:33:15] Speaker 00:
Yeah.

[00:33:16] Speaker 00:
And that is, that is absolutely something that could happen on, on remand.

[00:33:19] Speaker 00:
But again, it would be no reason to, uh, it would be no reason to vacate the discovery order.

[00:33:24] Speaker 00:
And there would be every opportunity for the district court to adjudicate those disputes.

[00:33:27] Speaker 01:
Although if I understood Judge Rawlinson's question, I don't

[00:33:32] Speaker 01:
I didn't hear Judge Rawlinson saying vacate the discovery order as opposed to putting sort of a footnote on a hypothetical affirmance by making this subject to the protective order.

[00:33:47] Speaker 00:
Understood, Your Honor.

[00:33:48] Speaker 00:
And that is, in similar litigation, protective orders have been one of the main vehicles for this type of information to be transferred.

[00:33:59] Speaker 00:
Just one brief discrete point, which is in terms of the risk associated with the date on the COA, I believe opposing counsel was asked about that.

[00:34:10] Speaker 00:
I don't think that there's any argument in the briefs on that at all.

[00:34:13] Speaker 00:
So I would contend that that's been forfeited, that I do see.

[00:34:17] Speaker 03:
Well, but if that's a question that we wanted to explore and we did explore it, what's your position on whether or not knowing the date of the certificate

[00:34:28] Speaker 03:
could lead to the identity of the supplier.

[00:34:31] Speaker 00:
I don't believe it could.

[00:34:33] Speaker 00:
I don't think there's any evidence to support that.

[00:34:34] Speaker 00:
I think as with so many of these arguments that I do see has advanced, it is entirely conjectural.

[00:34:42] Speaker 00:
There's no citation to any expert.

[00:34:44] Speaker 00:
There's no citation to anything in the world at large.

[00:34:48] Speaker 00:
There's no discussion of how pharmacy science works or how the regulatory regime operates.

[00:34:54] Speaker 00:
And the district court was correct in looking for that kind of concrete argument and finding it lacking.

[00:35:00] Speaker 03:
Is the relevance of this date to see whether or not the chemicals being used are not expired, or what's the relevance of that date?

[00:35:11] Speaker 00:
Yes, Your Honor.

[00:35:11] Speaker 00:
So expiration is sort of a different subject matter, and we do actually know the expiration date.

[00:35:17] Speaker 00:
But our position is that it is still relevant to know when testing was performed because

[00:35:23] Speaker 00:
You could still have concerns about the validity of a test based on how much time had elapsed, so results might become stale with time, they might not be as reliable, and so on and so forth.

[00:35:36] Speaker 00:
And while we're talking about the certificate of analysis, one other brief point I want to make, because it has really been the centerpiece of IDOC's presentation.

[00:35:44] Speaker 00:
IDOC's view is that we don't need anything beyond the certificate of analysis, and that's really not a defensible

[00:35:52] Speaker 00:
point of view to take, partly because all of this information is relevant for the reasons that we have examined, but also because the certificate of analysis itself is an extremely opaque document.

[00:36:05] Speaker 00:
We have no idea who prepared it.

[00:36:07] Speaker 00:
We have no idea what methodologies they used.

[00:36:09] Speaker 00:
We have no idea what the qualifications were of the personnel who were involved in that testing.

[00:36:15] Speaker 00:
There's no way that it could reasonably be said that the certificate of analysis can substitute for all the other information that we're pursuing in discovery.

[00:36:31] Speaker 00:
With my remaining time, I do want to just briefly say a couple of things about the jurisdictional question.

[00:36:38] Speaker 00:
Opposing counsel suggested during her time that it is the redressability prong where

[00:36:47] Speaker 00:
where IDOCs need for interlocutory jurisdiction is most apparent.

[00:36:52] Speaker 00:
And there I would just again reiterate, that is precisely the theory that was expressed in Mohawk, that when information protected from discovery is ordered to be disclosed, that there's no way of addressing that.

[00:37:05] Speaker 00:
And Mohawk said, there is a way of addressing it.

[00:37:08] Speaker 00:
It is after final judgment with a traditional appeal, if there's some problem with that order, there can be a remand.

[00:37:15] Speaker 03:
Well, but the difficulty is, as a practical matter, once the information is out, if it should not have been disclosed, then there's no way you can undisclose that information.

[00:37:26] Speaker 03:
And that's why I thought a protective order may be the best mechanism for precluding that eventuality.

[00:37:35] Speaker 00:
I think that's a fair consideration, but just to make the point again, that was also the case in Mohawk.

[00:37:40] Speaker 00:
The cat was out of the bag there as well, and it didn't persuade the court to.

[00:37:44] Speaker 03:
I understand.

[00:37:45] Speaker 03:
Different court.

[00:37:46] Speaker 00:
Different cat.

[00:37:48] Speaker 03:
Different cat.

[00:37:50] Speaker 03:
All right.

[00:37:50] Speaker 03:
Thank you, counsel.

[00:37:51] Speaker 04:
Thank you, your honor.

[00:38:08] Speaker 02:
Good afternoon.

[00:38:09] Speaker 02:
Just a couple of points on the questions and the presentation by plaintiffs council.

[00:38:15] Speaker 02:
With respect to collateral order doctrine, the defendants respectfully submit that

[00:38:21] Speaker 02:
there is an issue, this is not the same as Mohawk.

[00:38:24] Speaker 02:
This is a situation that is much more similar to a situation with trade secrets.

[00:38:30] Speaker 02:
So in the trade secrets context, there has been a determination that collateral order doctrine's appropriate to address an interim order of disclosure.

[00:38:40] Speaker 02:
And this situation is much more similar to a trade secret type of disclosure than an attorney client privileged disclosure.

[00:38:48] Speaker 02:
Mohawk was very clear that the discovery order had to do with attorney-client privilege.

[00:38:53] Speaker 02:
And the reason why that was redressable was because on remand, there could be an order that the information not be used at trial.

[00:39:01] Speaker 02:
That is not the harm that the defendants are submitting here today.

[00:39:04] Speaker 02:
The harm is disclosure itself, not its use at a later date, not its use at trial.

[00:39:11] Speaker 02:
It's the disclosure itself.

[00:39:13] Speaker 02:
With respect to the other questions on the mosaic theory of disclosure,

[00:39:19] Speaker 02:
This is a situation where the department takes its obligation to carry out a death sentence very seriously, and there's a lot of weighing that is done.

[00:39:27] Speaker 02:
The director has identified that it was difficult, nigh on impossible to locate a source.

[00:39:33] Speaker 02:
In fact, the record is replete with that information.

[00:39:36] Speaker 02:
He said he could not find a source, and then he was able to locate one.

[00:39:41] Speaker 02:
So he's taking that source's identity and keeping it under cover for very good reasons.

[00:39:47] Speaker 02:
The defendants have reviewed these disclosures in a totality of circumstances.

[00:39:54] Speaker 02:
And I've determined that there are certain disclosures that are necessary to comport with the 8th Amendment, to comport with the 14th Amendment.

[00:40:02] Speaker 02:
But there are other disclosures that just get too close to the line.

[00:40:07] Speaker 02:
And that is the determination- To what line?

[00:40:10] Speaker 02:
The line of disclosing the source.

[00:40:12] Speaker 02:
In other words, the plaintiff needs information to litigate his claim and to ensure that he will not suffer an unconstitutional deprivation during his execution.

[00:40:24] Speaker 02:
What he does not have a right to is information that will disclose IDOC's chemical source.

[00:40:31] Speaker 02:
It's not necessary for him to know that in order to contest the Eighth Amendment claims.

[00:40:36] Speaker 03:
But plaintiff's counsel is saying that it's speculative.

[00:40:40] Speaker 03:
that the information that's being disclosed can be used to discern the supply of the chemicals.

[00:40:47] Speaker 03:
What's your response to that?

[00:40:49] Speaker 02:
The defendants respectfully submit that it has occurred.

[00:40:52] Speaker 02:
It occurred as recently as July when John Oliver disclosed the federal government's chemical source, and it also occurred in July when NPR disclosed Texas's

[00:41:03] Speaker 02:
execution chemical source.

[00:41:06] Speaker 02:
This has occurred.

[00:41:06] Speaker 02:
It is not speculative.

[00:41:08] Speaker 02:
We were able to cite to the John Oliver circumstance in our briefing in preparation for the argument.

[00:41:14] Speaker 02:
I located the NPR article where they also out outed a Texas source.

[00:41:19] Speaker 02:
So this is not speculative.

[00:41:21] Speaker 02:
These kinds of attacks have occurred.

[00:41:24] Speaker 02:
They will continue to occur and the defendants respectfully submit.

[00:41:28] Speaker 02:
This court should reverse the disclosure order for that reason.

[00:41:31] Speaker 03:
All right, thank you, counsel.

[00:41:32] Speaker 03:
Thank you, your honor.

[00:41:33] Speaker 03:
Thank you to both counsel.

[00:41:34] Speaker 03:
The case just argued is submitted for decision by the court.

[00:41:37] Speaker 03:
We are adjourned.