IN THE SUPREME COURT OF THE STATE OF NEVADA

*****
STATE OF NEVADA; NEVADA Supreme Court Case No.:
DEPARTMENT OF CORRECTIONS;
JAMES DZURENDA, Director of the District Court Case No. A-18-777312-B
Electronically Filed
Nevada Department of Corrections, in his Sep 05 2018 08:17 a.m.
official capacity; IHSAN AZZAM, Ph.D, Elizabeth A. Brown
M.D., Chief Medical Officer of the State of Clerk of Supreme Court
Nevada, in his official capacity; and JOHN
DOE, Attending Physician at Planned
Execution of Scott Raymond Dozier in his
official capacity,
Petitioners,

vs.

THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA, IN
AND FOR THE COUNTY OF CLARK;
AND THE HONORABLE ELIZABETH
GONZALEZ, DISTRICT COURT JUDGE,
Respondents,

and

ALVOGEN, INC.; HIKMA

PHARMACEUTICALS USA INC.; and
SANDOZ, INC.,
Real Parties in Interest.

EMERGENCY PETITION FOR WRIT OF PROHIBITION OR

MANDAMUS UNDER NRAP 27(e) TO PREVENT THE IRREPARABLE HARM
CAUSED BY THE IRREVERSIBLE DISCLOSURE OF THE ATTENDING
PHYSICIAN’S IDENTITY AND OTHER HIGHLY SENSITIVE AND IRRELEVANT
INFORMATION
IMMEDIATE ACTION REQUESTED BY SEPTEMBER 5, 2018

ANN M. MCDERMOTT (Bar No. 8180)

Bureau Chief
JORDAN T. SMITH (Bar No. 12097)
Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
(702) 486-3894
[email protected]

Docket 76847 Document 2018-34386

 TABLE OF CONTENTS

ROUTING STATEMENT ...................................................................................... 1

ISSUES PRESENTED.............................................................................................. 1

I. INTRODUCTION AND SUMMARY OF THE ARGUMENT ...................... 2

II. FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED

BY THE PETITION ................................................................................................. 4

III. REASONS FOR GRANTING THE WRIT ......................................................... 5

A. This Court Should Entertain the Writ Petition ........................................... 5

B. The Attending Physician’s Identity is Highly Sensitive, Irrelevant, and

Should Not Be Disclosed for Safety Reasons.............................................. 7

C. The Creation of the Lethal Injection Protocol and the State’s Other
Drug Suppliers and Supplies are Irrelevant to the Drug Manufacturers’
Claims.............................................................................................................. 17

IV. CONCLUSION AND RELIEF SOUGHT......................................................... 23

VERIFICATION ................................................................................................................. 24

NRAP 27(e) CERTIFICATE ............................................................................................. 25

CERTIFICATE OF COMPLIANCE .............................................................................. 27

CERTIFICATE OF SERVICE ......................................................................................... 28

i
 TABLE OF AUTHORITIES
CASES

Archon Corp. v. Eighth Jud. Dist. Ct.,

133 Nev. Adv. Op. 101, 407 P.3d 702 (2017) ................................................................. 6

Arthur v. Comm’r, Alabama Dep’t of Corr.,

840 F.3d 1268 (11th Cir. 2016)........................................................................................ 22

Cotter v. Eighth Jud. Dist. Ct.,

134 Nev. Adv. Op. 32, 416 P.3d 228 (2018) ............................................................... 5, 6

DR Partners v. Bd. of Cty. Comm'rs of Clark Cty.,

116 Nev. 616, 6 P.3d 465 (2000) ..................................................................................... 19

Glossip v. Gross,
135 S. Ct. 2726 (2015) ...................................................................................................... 15

In re Lombardi,
741 F.3d 888 (8th Cir. 2014) ........................................................................................ 1, 18

In re Mo. Dep’t of Corr.,

839 F.3d 732 (8th Cir. 2016) ......................................................................... 10, 12, 17, 21

In re Ohio Execution Protocol Litig.,

845 F.3d 231 (6th Cir. 2016) ..................................................................... 3, 10, 11, 12, 23

Jones v. Comm'r, Ga. Dep't of Corr.,

811 F.3d 1288 (11th Cir. 2016).................................................................................. 10, 12

Jordan v. Hall,
2018 WL 1546632 (Mar. 29, 2018) .....................................................................11, 17, 22

Las Vegas Sands v. Eighth Jud. Dist. Ct.,

130 Nev. Adv. Op. 13, 319 P.3d 618 (2014) ................................................................... 6

McGehee v. Tex. Dept. of Criminal Justice,

No. H–18–1546, 2018 WL 3996956 (S.D. Tex. August 21, 2018) ............ 2, 16, 20, 21

ii
Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100 (2009)............................................................................................................. 6

NDOC v. Eighth Jud. Dist. Ct.,

417 P.3d 1117, 2018 WL 2272873 .................................................................................... 7

Okada v. Eighth Jud. Dist. Ct.,

131 Nev. Adv. Op. 83, 359 P.3d 1106 (2015) ................................................................. 6

Phillips v. DeWine,
841 F.3d 405 (6th Cir. 2016) ...................................................................................... 14, 18

Ryan v. Wood,
135 S. Ct. 21 (2014)..................................................................................................... 13, 18

Sepulvado v. Jindal,
729 F.3d 413 (5th Cir. 2013) ...................................................................................... 14, 18

State v. Gee Jon,

46 Nev. 418, 211 P. 676 (1923) ................................................................................. 15, 18

Tibbetts v. DeWine,
138 S. Ct. 301 (2017) ........................................................................................................ 14

Valley Health Sys., LLC v. Eighth Jud. Dist. Ct.,

127 Nev. 167, 252 P.3d 676 (2011)................................................................................... 6

Virginia Dep’t of Corrections v. Jordan,

2017 WL 5075252 (E.D. Va. 2017) .......................................................................... 10, 21

Wardleigh v. Second Jud. Dist. Ct.,

111 Nev. 345, 891 P.2d 1180 (1995)................................................................................. 6

Wellons v. Commissioner, Ga. Dept of Corrections,

754 F.3d 1260 (11th Cir. 2014)........................................................................................ 14

Wellons v. Owens,
No. 1:14-CV-1827-WBH, 2014 WL 12524653 (N.D. Ga. June 16, 2014) ................ 19

iii
Williams v. Hobbs,
658 F.3d 842 (8th Cir. 2011) ............................................................................................ 18

Wood v. Ryan,
759 F.3d 1076 (9th Cir. 2014).................................................................................... 13, 18

Wood v. Ryan,
No. CV-14-1447-PHX-NVW J, 2014 WL 3385115 (D. Ariz. July 10, 2014) ........... 14

Zink v. Lombardi,
783 F.3d 1089 (8th Cir. 2015)..............................................................................14, 15, 22

STATUTES
NRS 41.700 ........................................................................................................................... 15

NRS 453................................................................................................................................. 15

RULES
NRAP 17(a) ............................................................................................................................. 1

NRCP 30(b)(6) ........................................................................................................................ 5

OTHER AUTHORITIES
Security Increased for Oklahoma Prisons Director. KOCO NEWS 5. (Aug. 4, 2014, 7:24 AM)
https://www.koco.com/article/security-increased-for-oklahoma-prisons-
director/4299558............................................................................................................... 10

Security Increased for Oklahoma Prisons Director. NEWS ON 6. http://www.newson6.com/

story/26184937/security-increased-for-oklahoma-prisons-director ........................... 10

iv
 ROUTING STATEMENT

The Nevada Supreme Court should retain this matter because it involves the

death penalty. NRAP 17(a)(1). This matter also raises questions of first impression and

nationwide public importance about a district court’s authority to require disclosure of

sensitive details regarding (1) the Attending Physician’s identity, (2) the execution

protocol’s creation, and (3) the State’s drug suppliers that are not at issue in this case.

NRAP 17(a)(10)-(11).

ISSUES PRESENTED

1. Whether the State must disclose the identity of the Attending Physician

that was going to be present at the July 11, 2018 execution of Scott Dozier when it has

no relevancy to the drug manufacturer’s purported causes of action and will cause safety

risks as well as impose undue burden and prejudice on the State by dissuading him or

her (and others) from helping the State carry out its statutory mandate to complete

capital sentences.

2. Whether the State must disclose sensitive details about the creation of the

execution protocol and its other drug supply and providers when that information has

no relevancy to the drug manufacturer’s purported causes of action, would not even be

available to inmates in a method of execution challenge, and will have the purpose and

effect of cutting off the State’s lethal injection drug supply thereby frustrating the State’s

sovereign obligation to carry out capital sentences.

1
 I. INTRODUCTION AND SUMMARY OF THE ARGUMENT

This emergency petition seeks a writ of prohibition or mandamus to prevent the

court ordered disclosure of the identity of the Attending Physician that was scheduled

to attend Scott Dozier’s execution on July 11, 2018. As explained by Nevada

Department of Corrections Director, James Dzurenda, disclosing this individual’s

identity will expose him or her and their family to harassment, intimidation, and even

death threats. This includes unwanted contact by death penalty opponents and

associates of inmates on death row. Disclosing this information will stifle the State’s

ability to find qualified individuals willing to assist because, understandably, very few

individuals will want to put themselves or their families at risk without the assurance of

anonymity and confidentiality. The Attending Physician has made it clear that he or she

will serve as the attending physician only to the extent their anonymity is protected from

disclosure. As other courts have recognized, this identifying information is so sensitive

that the District Court’s allowance of an attorneys-eyes only protective order is not an

adequate safeguard. McGehee v. Tex. Dept. of Criminal Justice, No. H–18–1546, 2018 WL

3996956, at *12 (S.D. Tex. August 21, 2018).

Along with the Attending Physician’s identity, the District Court also allowed

inquiry into highly sensitive information about the lethal injection protocol’s creation

(including background science) and the State’s supply of other drugs that are unrelated

to the drug manufacturers that have brought this suit. This information is not remotely

relevant to the drug manufacturers’ claims that the State improperly purchased and

2
acquired their drugs in violation of non-existent product “controls” between themselves

and their third-party distributor, Cardinal Health. An inmate mounting a challenge to

the lethal injection protocol himself would not be entitled to this highly sensitive

information. The District Court’s discovery order gives drug manufacturers broader

discovery rights than a condemned inmate.

The drug manufacturers’ true motive for seeking this information and the

Attending Physician’s identity is to cutoff the State’s already-limited ability to obtain

other drugs and to scare people away from assisting the State. Removing anonymity

and allowing this disclosure will prevent the State from finding the supplies and

individuals necessary to carry out lawful capital sentences. Courts considering similar

discovery requests have held “the disclosures would cause an undue burden on and

prejudice Defendants by subjecting them to the risk of harm, violence, and harassment

and by making it difficult for them to obtain lethal-injection drugs.” In re Ohio Execution

Protocol Litig., 845 F.3d 231, 237 (6th Cir. 2016).

At minimum, the State should not be required to produce this incredibly sensitive

information before this Court determines whether the drug manufacturers even possess

a viable cause of action in the related writ proceeding in Supreme Court Case Number

76585. If the drug manufacturers do not have cognizable claims for relief, the Court

need not address these discovery issues and the State need not produce this

information. And many of the issues raised in this Petition inherently overlap with the

issues in the other matter before this Court.

3
 Currently, there are multiple depositions scheduled for Thursday, September 6,

2018 and Friday, September 7, 2018, and there is an evidentiary hearing scheduled for

Tuesday, September 11, 2018. The drug manufacturers intend to expose this

information during those proceedings. The District Court denied the State’s motions

for protective orders and orders in limine on the morning of September 4, 2018.

Therefore, emergency relief and an emergency stay are necessary. Once this information

is revealed, it cannot be taken back.

II. FACTS NECESSARY TO UNDERSTAND THE ISSUES

PRESENTED BY THE PETITION
Due to the emergency circumstances, and to avoid redundancy, a full recitation

of the facts is provided in the related writ proceeding in Supreme Court Case Number

76585. It suffices to say here that Alvogen filed this lawsuit on July 10, 2018, the day

before Dozier’s scheduled execution. In its Complaint, Alvogen alleges supposed

statutory and common law claims that the State illegally obtained Alvogen’s

“property”—its drugs—for use in Dozier’s execution. (App. 1-80). Alvogen seeks

return of its drug, Midazolam, based on its unfounded assertions that Defendants

obtained the drug through “subterfuge” or by some similar effort to evade alleged

manufacturer resale conditions or product “controls.” The Intervenors, Hikma and

Sandoz, make nearly identical claims, although Sandoz has abandoned the supposed

statutory claims and only advances the common law claims. (App. 81-295).

4
 All three drug manufacturers have served NRCP 30(b)(6) deposition notices and

written discovery aimed at the identity of “John Doe,” the Attending Physician, details

regarding the creation of the State’s lethal injection protocol, and specifics about the

State’s other drug inventory and suppliers. (App. 500-45; 687-732).

The State filed two motions for protective order and motions in limine on orders

shortening time on August 30, 2018. (App. 484-734). The District Court held a hearing

on September 4, 2018. While a written order is not yet available, the District Court

required the disclosure of the Attending Physician’s identity subject to a protective

order and limited the timeframe for the State’s disclosure regarding other drugs, other

drug manufacturers, and creation of the protocol to 2016 to present.1 The District

Court’s ruling did not otherwise address the underlying irrelevancy of the requested,

sensitive information.

III. REASONS FOR GRANTING THE WRIT

A. This Court Should Entertain the Writ Petition.

“Writ relief is an extraordinary remedy, available when the petitioner has no

plain, speedy and adequate remedy at law other than to petition this court.” Cotter v.

Eighth Jud. Dist. Ct., 134 Nev. Adv. Op. 32, 416 P.3d 228, 231 (2018) (quotations

omitted). Writ petitions are ‘“a valuable ad hoc relief valve” to correct serious district

1
The drug manufacturers stipulated that they did not seek the identity of other
execution team members.

5
court errors. Archon Corp. v. Eighth Jud. Dist. Ct., 133 Nev. Adv. Op. 101, 407 P.3d 702,

707 (2017); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009).

This Court will entertain writ petitions where sensitive or protected information

will irretrievably lose its confidentiality and, as a result, Petitioners would have no

effective remedy, even by a later appeal. Cotter, 134 Nev. Adv. Op. 32, 416 P.3d at 231

(citing Wardleigh v. Second Jud. Dist. Ct., 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995)).

This Court will also entertain a writ petition to halt a district court’s blanket discovery

order with no regard to relevance. Valley Health Sys., LLC v. Eighth Jud. Dist. Ct., 127

Nev. 167, 171, 252 P.3d 676, 679 (2011); Okada v. Eighth Jud. Dist. Ct., 131 Nev. Adv.

Op. 83, 359 P.3d 1106, 1110 (2015); Las Vegas Sands v. Eighth Jud. Dist. Ct., 130 Nev.

Adv. Op. 13, 319 P.3d 618, 621 (2014). There are circumstances where, in the absence

of writ relief, the resulting prejudice would be of great magnitude and cause irreparable

damage. Valley Health Sys., LLC, 127 Nev. at 171, 252 P.3d at 679 (citing Wardleigh, 111

Nev. at 351, 891 P.2d at 1184).

These circumstances are present here. The District Court’s discovery order is

both without regard for relevance and requires the disclosure of highly sensitive

information that cannot be clawed back once released. And “in certain cases,

consideration of a writ petition raising a discovery issue may be appropriate if an

important issue of law needs clarification and public policy is served by this court’s

invocation of its original jurisdiction.” Okada, 131 Nev. Adv. Op. 83, 359 P.3d 1106,

1110 (2015). The issues involved in this Petition raise important issues of law and public

6
policy regarding the State’s ability to carry out capital sentences. See NDOC v. Eighth

Jud. Dist. Ct., 417 P.3d 1117, 2018 WL 2272873, at *3 (2018) (“recogniz[ing] the

importance of this matter, both to Dozer and to the citizens of the State of Nevada”

and “that this case has serious implications”). This matter warrants this Court’s review.

B. The Attending Physician’s Identity is Highly Sensitive, Irrelevant,

and Should Not Be Disclosed for Safety Reasons.
The identity of the Attending Physician is not relevant to—or probative of—the

drug manufacturers’ claims that the State improperly acquired their drugs in violation

of their alleged property interests. Exposing this information will jeopardize the safety

of the Attending Physician and thus will be unduly burdensome and prejudicial.

As set forth in the declaration of NDOC Director James Dzurenda, the

confidentiality of these individuals’ identities is of the foremost concern to NDOC.

(App. 548). “When individuals are vetted for this solemn duty, NDOC assures them

that their confidentiality and safety is of paramount concern and that all possible steps

will be taken to protect their identities from disclosure.” (Id.) Aside from the execution

itself, NDOC’s primary concern in carrying out an execution is the safety and security

of staff, and by extension, their families, because the NDOC recognizes and

understands that the weight of the execution can affect an individual team member for

the rest of their life. (Id.).

The publication of these individual names would create an undeniable security

risk to the members of the team. (Id.). These individuals would likely be subject to

7
harassment, intimidation from unknown persons, unwanted contact, and all levels of

nuisance. (Id.). At its worst, NDOC is concerned that team members would be subject

to physical threats and danger to their lives and livelihood. (App. 549). NDOC is

troubled because there are innumerable unknown entities or persons that NDOC could

never anticipate that would direct threats or actual harm to the team and their family.

(Id.). Individuals with bad intent would be able to easily locate the Attending Physician,

as well as his or her family, if the name is released. (Id.)

Director Dzurenda attests that the Attending Physician does not have any

information regarding NDOC’s procurement of drugs. (Id.). Therefore, the Attending

Physician has nothing to offer regarding the drug manufacturers’ claims of unlawful

procurement. If the names are disclosed, NDOC personnel does not have the training,

resources, or abilities to guarantee the safety of the Attending Physician. (Id.).

If NDOC was forced to identify the Attending Physician, he or she will no longer

willingly serve on the team and NDOC would be unable to proceed with the execution

as mandated by the State and any execution warrant. (Id.). The Attending Physician has

made clear that he or she will only serve as Attending Physician to the extent their

anonymity is protected from disclosure. (App. 550). “This would cause irreparable harm

to NDOC and the State.” (Id.). The anonymity concerns are even more heightened for

the Attending Physician. (App. 549). “As a doctor, there is a heightened focus on and

risk to this person. The revelation of the attending physician’s identity would be more

high-profile than even the rank and file staff members.” (Id.).

8
 This disclosure will have a deterrent effect on others that may consider assisting

the State in the future. It would require NDOC to locate other individuals qualified to

serve as attending physician without being able to provide them with any assurance of

anonymity or confidentiality. (App. 550). “This would potentially result in preventing

the NDOC from fulfilling its constitutional and statutory duties of carrying out capital

sentences.” (Id.). “Revealing the names of the execution team or the attending physician

would completely undermine the process and it would be difficult if not impossible to

continue with the execution as authorized by state law, imposed by juries, and ultimately

ordered by the courts.” (Id.).

Director Dzurenda relayed the “well known” fact that “people pressure and

harass individuals and drug suppliers not to assist States performing capital punishment.

This pressure and harassment make it extremely difficult for the State to find companies

and individuals willing to assist the State, which frustrates the State’s sovereign interest.”

(Id.). Director Dzurenda acknowledged that death threats against participating

personnel have been reported in other states. (Id.). For example, the Director of the

Oklahoma Department of Corrections reported specific threats made against his life

which caused him to maintain a security detail and travel in a bullet resistant vehicle

9
with tinted windows. The threats were made by opponents of capital punishment

following an execution.2

Numerous courts have recognized these legitimate safety concerns and protected

identities from disclosure. For example, the Virginia Federal Courts and Department of

Corrections faced the near identical situation in 2017 pertaining to a request for the

identities of an execution team. The Virginia Court followed precedent from the Sixth

and Eleventh Circuit Court rulings, from three different states, that disclosing the

identity of team members imposes an undue burden on the state carrying out the

execution.3

In Virginia Department of Corrections v. Jordan,4 the Virginia Department of

Corrections, like NDOC, provided to the public a full disclosure of how the department

planned to carry out the execution.5 The plaintiffs demanded disclosure of the identities

of the execution team. Virginia contended that the State’s ability to carry out executions

would be eliminated if the identity of drug suppliers and execution team members were

2
http://www.newson6.com/story/26184937/security-increased-for-oklahoma-
prisons-director; https://www.koco.com/article/security-increased-for-oklahoma-pris
ons-director/4299558.
3
See e.g. In re Mo. Dep't of Corr., 839 F.3d at 736; In re Ohio Execution Protocol Litig.,
845 F.3d at 239–40; see Jones v. Comm'r, Ga. Dep't of Corr., 811 F.3d 1288, 1292–93 (11th
Cir.), cert. denied sub no. Jones v Bryson 136 S.Ct. 998 (2016).
4
2017 WL 5075252 *21 (Mar. 29, 2018).
5
NDOC has provided full release of its execution protocol in association with
constitutional challenges to the same.

10
revealed.6 In support of their objections, Virginia supplied a threatening e-mail sent to

a Missouri apothecary. Id. at * 19.

The Jordan Court cited case law stating that “[i]f the question is whether a

reasonable pharmacy owner or compounder would feel burdened by receiving such an

email, the answer is likely if not certainly yes. And by burdened this Court means likely

scared to the point of electing not to help Ohio” in assisting in executions. See also In re

Ohio Execution Protocol Litig., 845 F.3d at 239.

That is precisely the issue NDOC is trying to prevent. The disclosure of the

individual member identities opens these persons to a panoply of threats. The

technological advances of the internet make the disclosure of these names even more

treacherous. If identifying information reaches the public sphere, the individuals could

be placed in danger. These concerns include the very real possibility of threats, physical

harm, harassment, protesting, media inquiries, and persecution in their own homes by

any number of anti-death penalty advocates or associates of those on death row.

The State is unaware of any circuit court authority that has ever permitted

discovery into an attending physician’s identity. Conversely, the circuit courts that have

addressed the issue have concluded that disclosure of that information pursuant to a

discovery request would impose an undue burden upon a state seeking to carry out

lawfully imposed executions in the future, and many courts have applied the same logic

6
Id at *17.

11
to protect the identity of drug manufacturers and suppliers. See In re Ohio Execution

Protocol Litig., 845 F.3d at 239 (citation omitted) (“[B]ut for the protective order,

Defendants will suffer an undue burden and prejudice in effectuating Ohio’s execution

protocol and practices.”); In re Mo. Dep't of Corr., 839 F.3d at 736-38 (granting petition

for rehearing, and granting petition for writ of mandamus because disclosure of the

supplier’s identity placed an undue burden on the state by preventing it from acquiring

the drug for executions, and the inmates offered no assurances that active investigation

of the supplier would not lead to further disclosure of identities); Jones v. Comm’r. Ga.

Dep’t of Corr., 811 F.3d 1288, 1292-93 (11th Cir. 2016) (citation omitted) (internal

quotation marks omitted) (concluding death row inmate has no constitutional right to

“know where, how, and by whom lethal injection drugs will be manufactured,” and no

“due process right-of-access claim” to this information exists), cert. denied, 136 S. Ct.

998 (2016).

Inmates challenging the lethal injection protocol itself would not be entitled to

know the name of the Attending Physician. In re Lombardi, 741 F.3d 888 (8th Cir. 2014)

is an illustration. There, a group of prisoners sued the director of the Missouri

Department of Corrections seeking a declaration that the State’s lethal injection

protocol was unconstitutional. Id. at 891.

During discovery, the district court ordered the director to produce “the

identities of (1) the physician who prescribes the chemical used in Missouri executions,

(2) the pharmacist who compounds the chemical, and (3) the laboratory that tests the

12
chemical for potency, purity, and sterility.” Id. at 889, 892-93. The director sought—

and obtained—from the Eighth Circuit a writ of mandamus prohibiting the district

court from enforcing its discovery order. Id. at 893.

The Eighth Circuit held that “it is clear and indisputable that the discovery

ordered by the district court is not relevant to any claim ….” Id. at 895. “As to the other

claims raised by the plaintiffs,” the court continued, “the identities of the prescribing

physician, pharmacist, and laboratory are plainly not relevant…the merits of [plaintiffs’]

claims do not depend on the identities of the physician, pharmacist, or laboratory.” Id.

at 897.

The Supreme Court was similarly restrictive when summarily vacating the Ninth

Circuit’s opinion in Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014). The Ninth Circuit

panel, over Judge Bybee’s dissent, reversed the district court and granted an affirmative

injunction, finding that prisoners have a constitutional right to access (1) documents

and information on the drugs that States will use to execute (sources, manufacturers,

National Drug Codes, and lot numbers), (2) the execution team’s qualifications, (3) “and

the documents and evidence the State relied on in adopting its new execution protocol.”

Id. at 1079, 1082.

The Supreme Court summarily vacated the Ninth Circuit panel’s new-found

constitutional right and reinstated the district court’s order without briefing or

argument. Ryan v. Wood, 135 S. Ct. 21 (2014). Earlier, the district court ruled that the

specific qualifications of the execution team members were “of little significance”

13
because the protocol specified the qualifications that are needed. Wood v. Ryan, No. CV-

14-1447-PHX-NVW J, 2014 WL 3385115, at *7 (D. Ariz. July 10, 2014). The court

decided that the usefulness of the manufacturer’s identity was remote and “[t]he real

effect of requiring disclosure, however, is to extend the pressure on qualified suppliers

not to supply the drugs, as has happened in the past.” Id. The same was true of

disclosing the identities of the execution team members. Id. at *7.

Finally, the Eleventh Circuit summed up the execution qualification and drug

issues bluntly: “Neither the Fifth, Fourteenth, or First Amendments afford [a

challenger] the broad right to know where, how, and by whom the lethal injection drugs

will be manufactured, as well as the qualifications of the person or persons who will

manufacture the drugs, and who will place the catheters.”’ Wellons v. Commissioner, Ga.

Dept of Corrections, 754 F.3d 1260, 1267 (11th Cir. 2014) (internal quotations omitted);

see also Sepulvado v. Jindal, 729 F.3d 413, 419 (5th Cir. 2013) (holding that inmate has no

Eighth Amendment right ‘“to know the details of his execution in order to ensure

proper oversight and avoid uncertainty that unnecessarily creates anxiety” and

disagreeing with district court that “an inmate who is to be executed cannot challenge

a protocol as violative of the 8th Amendment until he knows what that protocol

contains.”) (quotations omitted); Phillips at 420 (6th Cir. 2016) (collecting cases);7 Zink,

783 F.3d at 1105-06.

7
Cert. denied sub nom., Tibbetts v. DeWine, 138 S. Ct. 301 (2017).

14
 Similarly, this Court held in State v. Gee Jon that the State was not required to

provide more details regarding its lethal gas procedure. 46 Nev. 418, 424 211 P. 676,

682 (1923). (“We cannot see that any useful purpose would be served by requiring

greater detail.”). Although the plaintiff is different, the principal remains the same: the

litigants need not know every last detail of the execution or execution participants. If

the challenging inmate does not have the right to the names of those involved in

executions, the drug manufacturers should not be afforded greater rights than the

condemned inmate.

This is especially so when the potential harm presented by identification of those

intimately involved in an execution outweighs any speculative benefit. The drug

manufacturers should not be permitted to go on a fishing expedition for information

that can be used to harass individuals who assist the State in carrying out lawful

executions. The intended effect is to scare people away from assisting the State. This

tactic is well-documented and, unfortunately, has been effective in stopping executions.8

The drug manufacturers’ only assertion of relevancy stems from their supposed

statutory claims for “distributing” and “furnishing.” But, as the State has repeatedly

argued to this Court and the District Court, the drug manufacturers do not have private

rights of action under NRS Chapter 453 and NRS 41.700 does not apply to them.9 The

8
See Glossip v. Gross, 135 S. Ct. 2726, 2733, (2015) (discussing pressure of anti-
death penalty advocates); Zink v. Lombardi, 783 F.3d 1089, 1106 (8th Cir. 2015) (similar).
9
Sandoz has no claim of relevancy because it does not advance the statutory
claims.

15
drug manufacturers cannot unilaterally point to random statutes and pretend they offer

a cause of action to conjure the relevancy of highly sensitive information. That’s why

the State’s case law is on-point. The drug manufacturers acknowledge that “in these

cases, courts have found that the identities of the execution team are not relevant to the

inmates’ challenges ….” (App. 746). Likewise, if the drug manufacturers do not have causes of

action under these statutes then this information cannot be relevant or probative. A ruling to the

contrary would be an improper blanket discovery order without regard for relevancy.

Again, the identities are not relevant to the drug manufacturers’ common law

claims. Director Dzurenda attests that “[t]he attending physician did not purchase the

drugs to be used in the execution. The DEA number provided to Cardinal Health when

purchasing the drugs belongs to NDOC rather than any individual physician.” (App.

550).

Lastly, because of the sensitive information and safety risks involved, even an

attorneys’ eyes-only protective order is an inadequate protection. Courts have even

found protective orders insufficient to guard the identity of companies supplying lethal

injection drugs to States. For instance, in McGehee v. Texas Dept. of Criminal Justice, the

court concluded that a protective order limiting dissemination of the information was

an inadequate safeguard. 2018 WL 3996956 at *12.

Entry of a protective order merely limiting the dissemination of

information is an unsatisfactory alternative, as the drug supplier has made
it clear that it will discontinue selling the necessary drugs if its identity is
revealed. There is no allowance for revelation by court order. Moreover,
the inherent danger and hardship that would follow even an inadvertent

16
 disclosure convince the Court that it must protect the information at issue
from discovery. For these reasons, the Defendants are entitled to withhold
from discovery any material that would identify
suppliers of lethal injection drugs or persons involved in the execution
process.
Id. (quoting Jordan v. Hall, 2018 WL 1546632, at *11 (S.D. Miss. 2018); see also In re

Missouri Dep’t of Corrections, 839 F.3d at 737 (refusing to require disclosure under a

protective order because “‘it is likely that active investigation of the physician,

pharmacy, and laboratory will lead to further disclosure of the identities’”); Jordan, 2017

WL 5075252, at *21 (“[S]uch protective orders are not adequate to protect a state’s

interest in shielding the identities of individuals and entities that assist the state in

carrying out executions.”)). The stakes are even greater here because individuals are

involved. The State cannot risk even inadvertent disclosure by attorneys acting in good

faith.

C. The Creation of the Lethal Injection Protocol and the State’s Other
Drug Suppliers and Supplies Are Irrelevant to the Drug Manufacturers’
Claims.
Once again, the gravamen of the drug manufacturers’ allegations is that the State

improperly obtained their respective drugs from Cardinal Health in violation of their

alleged property rights and resale restrictions with their intermediaries. The relevant

issues are related to the State’s acquisition and purchase of their drugs. Issues related to the

creation of the lethal injection protocol, reasons for selecting the drug manufacturers’

drugs, the science or medicine behind the protocol, the execution process, and issues

related to other manufacturers, other distributors, and other manufacturers’ drugs have

17
no bearing on the drug manufacturers’ claims or the State’s defenses. None of this

information has a tendency to establish a material proposition at issue in this litigation.

Numerous courts, many cited and discussed above, have held that this type of

information is not even discoverable or relevant when an inmate challenges the lethal

injection protocol itself. If this information is not discoverable in a method of execution

challenge to the protocol, it is certainly not discoverable in a drug manufacturer’s lawsuit

that does not contest the protocol. In other words, Dozier himself would not be entitled

to this information. Allowing drug manufacturers to gain access to this sensitive

information would give them greater rights than a condemned inmate has when

claiming a constitutional violation.

For instance, an inmate is not even entitled to view the execution protocol—

although Nevada has voluntarily disclosed its protocol to the public. Sepulvado v. Jindal,

729 F.3d 413, 419-20 (5th Cir. 2013); Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir.

2011); see also Phillips v. DeWine, 841 F.3d 405, 420 (6th Cir. 2016). Even this Court in

Gee Jon this Court held that no “useful purpose would be served by requiring greater

detail” or disclosure about the State’s method of execution. 46 Nev. 418, 211 P. 676,

682.

As explained above, the Ninth Circuit in Wood v. Ryan, ordered production of

“the documents and evidence the State relied on in adopting its new execution

protocol.” 759 F.3d at 1079, 1082. The Supreme Court summarily vacated the Ninth

Circuit’s decision. Ryan, 135 S. Ct. 21. Likewise, in In re Lombardi, the Eighth Circuit

18
held that “it is clear and indisputable that the discovery ordered by the district court is

not relevant to any claim that should survive a motion to dismiss….” 741 F.3d at 895.

The court noted the sensitive information at stake. The disclosure of physicians,

pharmacies, and laboratories and related information about the protocol “would trigger

collateral consequences that would prevent the Director from obtaining the lethal

chemicals necessary to carry out the capital punishment laws of the State.” Id. at 894.

The Missouri director pointed to a letter—like those the drug manufacturers sent

here—demanding “the Texas Department of Criminal Justice return a supply of

compounded pentobarbital sold for use in executions, because of a ‘firestorm,’

including ‘constant inquiries from the press, the hate mail and messages,’ that resulted

from publication of the pharmacy’s identity.” Id. The court determined that, without

establishing relevancy, it was a clear abuse of discretion to order “discovery of sensitive

information, the disclosure of which [the director] avers would prevent the State from

acquiring lethal chemicals necessary to carry out the death penalty.” Id. at 89610.

The narrow scope of discovery on these issues is logical given its intrusiveness

and the sensitive issues involve. Moreover, courts presume that state officials act in

good faith in selecting the execution drugs, crafting the protocol, and selecting the

execution team. Wellons v. Owens, No. 1:14-CV-1827-WBH, 2014 WL 12524653, at *3

10
Additionally, depending on the precise inquiry, much of this information
would be protected by the deliberative process privilege. DR Partners v. Bd. of Cty.
Comm'rs of Clark Cty., 116 Nev. 616, 622-23, 6 P.3d 465, 469-70 (2000).

19
(N.D. Ga. June 16, 2014). “DOC officials certainly have a strong interest in executing

its condemned prisoners in a manner that does not violate their rights. Botched

executions lead to embarrassment, investigations, bad press, and, perhaps worst of all

for the individuals involved, the knowledge that they caused an individual needless pain

and suffering.” Id. Tangential information about the protocol’s creation, drugs selection,

personnel, other manufacturers, and other drugs have no bearing on the drug

manufacturers’ claims here.

On August 21, 2018, the United States District Court for the Southern District

of Texas ruled that the State of Texas need not produce the following information,

which is substantially like the information requested here:

1. All Documents, Communications, and Things arising

from or related in any way to Texas’s efforts to obtain
pentobarbital for use in Executions in Texas, including
but not limited to information about Texas’s current
supply of pentobarbital, when Texas expects to obtain
additional pentobarbital, and the source(s) of
pentobarbital.
4. All Documents, Communications, and Things Related
to any Supplier of pentobarbital, including but not
limited to Communications Related to the availability
of pentobarbital for use in Executions; Documents;
Communications, or Things identifying Suppliers of
pentobarbital; Documents, Communications, or
Things Related to any Supplier’s present, past, or
future willingness to supply pentobarbital to any State
for use in any Execution.

McGehee, 2018 WL 3996956, * 5. Texas relied on two arguments which apply here: [1]

“that the documents are not relevant to the . . . litigation; and [2] that the [information

sought] is ‘unduly burdensome, overbroad, and speculative.’” Id. at * 5.

20
 The court agreed. It first noted that the plaintiffs, a group of Arkansas inmates,

were “requesting information that ha[d] been denied Texas inmates: information about

the source of the drugs used in Texas executions.” Id. at * 8. Texas had steadfastly

maintained that it would not disclose its supplier even under seal and courts had

affirmed that position. Id. (citing cases).

The McGehee court surveyed other cases and observed that a federal district court

in Virginia found undue hardship in requiring the information to be released as the

release of the information would jeopardize “Virginia’s ability to secure the drugs

necessary to carry out lethal injections . . . should the supplier of those drugs be

disclosed.” Id. at * 9 (citing Virginia Dep’t of Corrections v. Jordan, 2017 WL 5075252, at

*19 (E.D. Va. 2017)); see also id. (quoting Jordan, supra at *17 (“The Circuit Courts concur

that requiring disclosure of suppliers of lethal injection chemicals and team members

imposes an undue burden on states.”)).

Additionally, the court highlighted an Eighth Circuit decision that protected the

drug supplier’s identity as “an undue burden because (1) it would make it more difficult

for Missouri to acquire the necessary drugs and (2) the pharmacy’s identity had ‘little, if

any, relevance to their Eighth Amendment claim’ in the Mississippi lawsuit.” Id. at *8

(quoting In re Missouri Dep’t of Corrections, 839 F.3d 732, 736 (8th Cir. 2016)). And like

the Attending Physician’s identity, the court concluded that even a protective order was

an inadequate precaution. Id. at *12.

21
 The drug manufacturers’ attempted counterarguments confirm the importance

of this authority. The drug manufacturers claim that other drugs and other drug

manufacturers are relevant to the State’s claim that it cannot carry out Dozier’s

execution because it does not have access to other drugs. The drug manufacturers seek

to counter this claim by showing that there are other available drugs. This is the same

argument an Eighth Amendment method of execution challenger must make, and courts universally

hold that the inmate is not entitled to discovery into the State’s inventory or other suppliers.

For example, in Zink v. Lombardi, “[t]he prisoners further contend[ed] that they

cannot propose a reasonably available alternative method of execution without

discovery of information about the State’s present suppliers of lethal drugs ….” 783

F.3d at 1105. The Eighth Circuit disagreed. Without reference to what the state has on

hand, a party (or its experts) can know whether some other drugs exist that are available

to the prison. Id. This discovery is available from other non-State sources. See id.

The Eleventh Circuit has explained that the inmate must prove that “the State

actually has access” to the drugs and can carry out the execution with those drugs

“relatively easily and reasonably quickly.” Arthur v. Comm’r, Alabama Dep’t of Corr., 840

F.3d 1268, 1300 (11th Cir. 2016). “[I]t is not the state’s burden to plead and prove that

it cannot acquire the drug.” Id. at 1303 (quotations omitted). The State need not even

“make a good faith effort” to obtain substitute drugs. Id. at 1302-03.

From their own knowledge of the pharmaceutical industry, the drug

manufacturers can determine if alternative drugs are actually available for execution

22
purposes. They can obtain discovery from other companies to see if those firms have

suitable drugs that they are willing to sell to the State. But discovery into the State’s

supply is not needed to make the claim that other drugs are available, especially when

balanced against the potential prejudice and undue burden that can result from revealing

the State’s other manufacturers.

The only purpose of obtaining this discovery from the State is to cutoff its ability

to purchase drugs and prevent it from carrying out lawful capital sentences. This is

highly prejudicial and imposes an undue burden. See In re Ohio Execution Protocol Litig.,

845 F.3d at 237(affirming protective order against discovery that “would cause an undue

burden on and prejudice Defendants by subjecting them to the risk of harm, violence,

and harassment and by making it difficult for them to obtain lethal-injection drugs.”).

IV. CONCLUSION AND RELIEF SOUGHT

For these reasons, the State respectfully requests that the Court issue a writ of

prohibition (or mandamus) precluding disclosure of the Attending Physician’s identity,

details of the lethal injection protocol’s creations, and drug and supplier information

that is unrelated to the drug manufacturers that have filed suit.

Dated: September 4, 2018. /s/ Jordan T. Smith

Ann M. McDermott (Bar No. 8180)
Bureau Chief
Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
[email protected]
Counsel for Petitioners

23
 VERIFICATION

I, Jordan T. Smith, declare as follows:

1. I am currently employed in the Office of the Attorney General as the

Deputy Solicitor General. I am counsel for Petitioners named herein.

2. I verify that I have read the foregoing Emergency Petition under NRAP

NRAP 21(a)(6) and 27(e) and that the same is true of my own knowledge, except for

matters stated on information and belief, and as to those matters, I believe them to be

true.

3. I declare under the penalty of perjury of the laws of Nevada that the

foregoing is true and correct.

Executed on this 4th day of September 2018, in Las Vegas, Nevada.

/s/ Jordan T. Smith

Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General

24
 NRAP 27(e) CERTIFICATE

I, Jordan T. Smith, declare as follows:

4. I am currently employed in the Office of the Attorney General as the

Deputy Solicitor General. I am counsel for Petitioners named herein.

5. I verify that I have read the foregoing Emergency Petition under NRAP

21(a)(6) and 27(e) and that the same is true of my own knowledge, except for matters

stated on information and belief, and as to those matters, I believe them to be true.

6. The facts showing the existence and nature of the emergency are set forth

in the Petition. As described above, relief or a stay of proceedings is needed by

September 5, 2018, before the depositions on September 6th and September 7th, and the

evidentiary hearing on September 11, 2018. Immediate action is requested.

7. The relief sought in this Petition was presented to the district court and

was denied today, Tuesday, September 4, 2018. The State is filing this Petition at the

earliest possible time.

8. I have made every practicable effort to notify the Supreme Court and

opposing counsel of the filing of this Petition. The State’s intent to file this Petition was

expressed at the district court hearing today and opposing counsel were alerted to the

filing of this petition before it was submitted for e-filing. I also called the Clerk of Court’s

Office before filing. A courtesy copy was emailed to all parties.

9. Below are the telephone numbers and office addresses of the known

participating attorneys:

25
Counsel for Alvogen, Inc.
James J. Pisanelli, Esq. Kenneth Schuler
Todd Bice, Esq. Michael Faris
Debra Spinelli, Esq. Alex Grabowski
PISANELLI BICE, PLLC LATHAM & WATKINS, LLP
400 South 7th Street, Suite 300 330 North Wabash Ave., #2800
Las Vegas, NV 89101 Chicago, IL 60611
Tel: 702-214-2100 Tel: 312-876-7659

Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Tel: 202-637-3321

Counsel for Hikma Pharmaceuticals USA Inc.

E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristen L. Martini, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Pkwy., Suite 600
Las Vegas, NV 89169-5996
Tel: 702-949-8200
Counsel for Sandoz Inc. (Intervenor)
J. Colby Williams, Esq. Noel B. Ix., Esq.
Philip R. Erwin, Esq. PEPPER HAMILTON LLP
CAMPBELL & WILLIAMS 301 Carnegie Center, Suite 400
700 South Seventh Street Princeton, NJ 08540
Las Vegas, NV 89101 Tel: 609-452-0808
Tel: 702-382-5222
Andrew Kantra, Esq
300 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
Tel: 215-981-4000
Executed on this 4th day of September 2018, in Las Vegas, Nevada.

/s/ Jordan T. Smith

Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General

26
 CERTIFICATE OF COMPLIANCE

I hereby certify that this petition complies with the formatting requirements of

NRAP 27(d) and the typeface and type-style requirements of NRAP 27(d)(1)(E)

because this Motion has been prepared in a proportionally spaced typeface using Office

Word 2013 in size 14 double-spaced Garamond font. This filing also complies with

NRAP 32 and NRAP 21.

I hereby certify that to the best of my knowledge, information and belief, it is

not frivolous or interposed for any improper purpose. I further certify that this Motion

complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP

28(e)(1), which requires that every assertion regarding matters in the record to be

supported by appropriate references to the record on appeal. I understand that I may

be subject to sanctions in the event that the accompanying brief is not in conformity

with the requirements of the Nevada Rules of Appellate Procedure.

Dated: September 4, 2018.

/s/ Jordan T. Smith

Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General

27
 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing EMERGENCY

PETITION FOR WRIT OF PROHIBITION OR MANDAMUS UNDER

NRAP 27(E) TO PREVENT THE IRREPARABLE HARM CAUSED BY

THE IRREVERSIBLE DISCLOSURE OF THE ATTENDING

PHYSICIAN’S IDENTITY AND OTHER HIGHLY SENSITIVE AND

IRRELEVANT INFORMATION; IMMEDIATE ACTION REQUESTED

BY SEPTEMBER 5, 2018 with the Clerk of the Court for the Nevada Supreme Court

by using the appellate CM/ECF system on September 4, 2018.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

I further certify that a courtesy copy was emailed to counsel for Real Parties in

Interest simultaneously with the filing of the foregoing.

A copy was also provided to the following:

James J. Pisanelli, Esq. J. Colby Williams, Esq.
Todd Bice, Esq. Philip R. Erwin, Esq.
Debra Spinelli, Esq. CAMPBELL & WILLIAMS
PISANELLI BICE, PLLC 700 South Seventh Street
400 South 7th Street, Las Vegas, NV 89101
Suite 300
Las Vegas, NV 89101 Andrew Kantra, Esq
PEPPER HAMILTON LLP
Angela Walker 300 Two Logan Square
LATHAM & WATKINS, LLP Eighteenth and Arch Streets
555 Eleventh Street, NW, Philadelphia, PA 19103
Suite 1000
Washington, DC 20004-1304

28
Kenneth Schuler, Esq. E. Leif Reid, Esq.
Michael Faris, Esq. Josh M. Reid, Esq.
Alex Grabowski, Esq. Kristin L. Martini, Esq.
LATHAM & WATKINS, LLP LEWIS ROCA ROTHGERBER
330 North Wabash Avenue, CHRISTIE LLP
Suite 2800 3993 Howard Hughes Pkwy,
Chicago, IL 60611 Suite 600
Las Vegas, NV 89169
Noel B. Ix., Esq.
PEPPER HAMILTON LLP Hon. Elizabeth Gonzalez
301 Carnegie Center, Eighth Judicial District Court
Suite 400 Department 11
Princeton, NJ 08540 200 Lewis Avenue
Las Vegas, NV 89155

/s/ Barbara Fell

An employee of the
Office of the Attorney General

29