OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of the following filings:

(1) Defendants' motion for a protective order (ECF No. 530), Plaintiffs' memorandum in opposition (ECF No. 532), Defendants' reply memorandum (ECF No. 535), Plaintiffs' written closing arguments (ECF No. 549), and Defendants' written closing arguments (ECF No. 550);

(2) Plaintiffs' motion to exclude the testimony and declaration of J. Lawrence Cunningham (ECF No. 536) and Defendants' memorandum in opposition (ECF No. 544); and

(3) Defendants' motion to exclude the testimony and declaration of Randy P. Juhl (ECF No. 542).

For the reasons that follows, the Court GRANTS Defendants' motion for a protective order (ECF No. 530), DENIES Plaintiffs' motion to exclude the testimony and declaration of J. Lawrence Cunningham (ECF No. 536), and DENIES Defendants' motion to exclude the testimony and declaration of Randy P. Juhl (ECF No. 542).1

I. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 26(c)(1) provides that "[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending. . . ." Fed. R. Civ. P. 26(c)(1). The rule also provides that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . ." Id. The Sixth Circuit Court of Appeals "has endorsed the view that to justify a protective order, one of Rule 26(c)(1)'s enumerated harms `must be illustrated with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'" Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (additional internal quotation marks omitted)). Thus, a party seeking a protective order must specify one of the harms listed in Rule 26(c)(1) to warrant issuance of such an order. Id.

B. Analysis

The briefing before this Court presents a relatively straightforward issue: whether Defendants should have to disclose the identities of persons and entities needed to acquire execution drugs and related materials. Defendants argue that nondisclosure is imperative because, without it, they will not be able to obtain the drugs, materials, and testing necessary to carry out a lawful execution. This is because, according to Defendants, persons and entities who do not have anonymity would be subjecting themselves to risk of harassment, harm, or similar undesirable consequences that would chill if not preclude their willingness to supply the drugs or related assistance. Plaintiffs in turn argue that disclosure of the identities is directly relevant to many if not all of their claims and is particularly critical to challenging the use of compounded drugs. Specifically, Plaintiffs argue, if they cannot discover the source of the drugs, they cannot mount a meaningful challenge to a compounded drug's use.

As has often been the case in this enduring litigation, the parties have presented this issue as a battle of the experts. On one side, Defendants offer the opinion evidence of security and threat assessment expert J. Lawrence Cunningham, who has found that a substantial risk of threats or harassment exists absent confidentiality. On the other side, Plaintiffs offer the opinion evidence of security and threat assessment expert Thomas R. Parker, who has found that there is not a substantial risk of threats or harassment absent confidentiality. Plaintiffs also offer the testimony of retired professor and pharmacist Randy P. Juhl, who offered his interpretation on federal and state laws as they relate to execution drugs and the asserted illegality of compounding pharmacists filling orders for such drugs, and of Sister Helen Prejean, who offered opinion testimony as an opponent of the death penalty and who opined on the beliefs and conduct of those involved in that movement.

All of these witnesses were only somewhat helpful. The Court finds Cunningham perhaps more persuasive than Parker, although Parker placed much of Cunningham's testimony into a different context. For the most part, these individuals cancelled one another out, leaving some of the evidence upon which they relied perhaps the most persuasive material for this Court. Juhl was informative in some respects but presents an unusual view that the government itself has made executions by lethal injection impossible, a minority view that once again fails to persuade this Court. Given the notably limited weight to be afforded these witnesses, the Court is inclined to dispose of the parties' attempt to strike testimony on Daubert concerns in the same manner it was when it read the parties' motions, which is to say much ado about nothing. The parties devoted briefing to support striking or permitting evidence from several of the opinion witnesses, but the parties' arguments go more to the weight to be afforded the testimony and declarations then to the admissibility of the same. Given this fact and the ultimately limited value of the targeted testimony and evidence, extended discussion of the briefing would be unproductive. This Court DENIES the unnecessary motions to exclude. (ECF No. 536, 542.)

Although all the witnesses who were asked agree that there has not been a single known threat against a compounding pharmacy that might supply drugs to Ohio, their conclusions vary wildly. What the Court takes from all of the testimony involved is that some of Defendants' assertions of burdens or prejudice connected to disclosure are largely speculative or conclusory, if not outright hyperbolic. But the testimony also persuades the Court that this much is true: disclosure of the information sought indeed presents a tangible burden on Defendants and would be unduly prejudicial.

One of Plaintiffs' own witnesses, death penalty opponent Sister Helen Prejean, testified that she was not aware of any death penalty opponent who would use violence to advance his or her goals against the death penalty. She later stated that she had never met or experienced an opponent of the death penalty who was willing to use violence on any moral issue. In other testimony, however, Sister Prejean stated that "there will always be some extremist groups that take a beautiful principle of religion like pro life or loyalty and love of God and translate it in an extremist, violent way. You will find that it any group." (ECF No. 548, at Page ID # 15157.) After drawing a distinction between the extremists and those who share the same core opposition to the death penalty in a non-violent way, she testified that "[i]t will always be a mixed bag of how people interpret and do things using the same label." (Id.)

The mere possibility of a fringe group of extremists does not invariably translate into a burden or prejudice sufficient to warrant issuance of a protective order. It is nonetheless some evidence that cannot be reasonably disregarded. Such a possibility then took a more concrete form during the oral argument in the form of Hearing Exhibit M.

That exhibit, which is an email sent to an Oklahoma compounding pharmacy by a citizen, evinces an undeniable (and perhaps even faith-based) risk to pharmacies or compounders, including the personnel that work at such entities. The exhibit reads:

(Defs. Hrg. Ex. M.) On its face, this email presents a reasonable inference, if not an express declaration, of a threat or intimidation. If 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 the state's lawful quest to kill.

It would obviously have been more helpful to this Court if Defendants had presented evidence from pharmacy owners or compounders, for example, that these individuals or the entities involved would not work with Ohio to enable the execution process knowing of this email or if they suspected that they would receive one like it. But such evidence is unlikely because if pharmacy owners or compounders testified to such a position, they would be presenting the inference that, with nondisclosure guaranteed, they would assist Ohio. Absent a guarantee that such testimony would be protected from disclosure, those who would fear recrimination would likely elect not to testify.

Without such testimony, the Court is left with two considerations. One is the fact that Defendants have submitted to this Court a privilege log that indicates the existence of persons who have applied for statutory protection from disclosure. The existence of such confidentiality rights applications informs the question of whether there are actually entities that likely do not want their identities disclosed and answers whether Defendants' concerns are wholly speculative. The Court reaches such a qualified inference because some entities might apply for protection even if they might assist Ohio even if confidentiality were not obtained. At the least, the Court accepts that there are entities with an interest in assisting Ohio and an interest in securing confidentiality.

The second core consideration is that, if an email such as the Oklahoma email (or the threat of such an email) would produce the likely result of necessary entities being scared to the point of electing not to help Ohio's execution endeavors, then Defendants have demonstrated the existence of a burden or prejudice that the discovery sought would cause. Plaintiffs argue that the email is of little evidentiary value because there is no evidence that it was intended as a threat and, in fact, there is some evidence supporting that it was not so intended. They note, for example, that the author of the email included his name, that he does not know anything about making bombs, and that he allegedly intended the email to be a note of concern. But unlike Plaintiffs, a pharmacist is unlikely to have the benefits of a hired investigator to discover all of this. Actual intent is therefore not dispositive of the parties' debate, however, when apparent intent can provide the chilling effect on suppliers and others that Defendants seek to avoid. If a relevant person or entity would be frightened by such an email, regardless of how it was actually intended, then it simply does not matter whether the email's author intended to be frightening. The end result can be the same.

Plaintiffs' framing of the protective order issue nonetheless inherently poses the question of which must come first to warrant nondisclosure, disclosure with negative consequences or a risk of sufficient negative consequences stemming from disclosure. Plaintiffs select the former. But this binary paradigm rings false. It overlooks or under plays the chicken-or-the-egg nature of the issue before this Court today. Absent a record of prior disclosure, the question is not necessarily just whether there have been threats made, intimidation, or harassment in Ohio, or just whether there would likely be threats made, intimidation, or harassment if the information at issue were disclosed. Instead, everything is at issue, and the inquiry unavoidably involves some degree of estimating probabilities. Until information is disclosed, no one can say for a certainty whether that disclosure would without question lead to the issues that Defendants seek to avoid. To require absolute proof of problematic consequences of disclosure without there having been a disclosure therefore asks too much. There is an inherent degree of speculation that unavoidably accompanies both Defendants' and Plaintiffs' positions.

Potentially buttressing the evidence presented in favor of Defendants' burden and prejudice arguments is the fact that Ohio has passed secrecy legislation related to executions. In another case, this Court previously explained that statutory scheme as follows:

Phillips v. DeWine, 92 F.Supp.3d 702, 705-08 (S.D. Ohio 2015). Interpreting these statutes, this Court previously explained that "the statutory scheme simply cuts off Ohio and its employees as a source of specific information for both proponents and opponents of the death penalty." Phillips, 92 F. Supp. 3d at 711. It also specifically "cuts off government-provided discovery as the source of the information." Id. at 713.

What all this means is that the identities of persons-individuals and entities that are not individuals but successfully apply for nondisclosure protection-would not be disclosed by Ohio and its employees without running afoul of the statutory scheme. See Ohio Rev. Code §§ 2949.221(B), (C)(1), and (D)(1) and (2); Ohio Rev. Code § 2949.222(B) and (C). If the statutory scheme matters, then this operation matters because, at the outset of the oral hearing on the motion for a protective order, Defendants submitted to this Court a privilege log that featured such applications, evincing that there are actual and not just hypothetical entities that seek the protection from disclosure afforded by the statutory confidentiality rights. Absent a protective order, this Court would be compelling Defendants to violate the statutory scheme.

Plaintiffs urge this Court to disregard the statutory scheme on the grounds that the Court should not recognize a state privilege as controlling in this federal forum. Plaintiffs' premise is that a state privilege cannot apply in a federal question case, but this position arguably forgets that Plaintiffs have asserted numerous state law claims to which the state statutory scheme might be relevant. This Court need not resolve the state statute issue conclusively, however, because regardless of the statutory scheme, Defendants have presented good cause for a protective order. It is not because there is a state secrecy statute creating a privilege that Defendants are entitled to a protective order, but rather because the same concerns that apparently led to the creation of the statute exist: the burden on and prejudice to the state that disclosure presents. Any statutory protection is simply an add-on. To be clear, the Rule 26(c) considerations warrant a protective order, whether taken alone or in conjunction with Ohio's secrecy statute.2

Plaintiffs argue that Defendants are raising Rule 26(c) concerns by proxy, conflating burdens on and prejudice to non-party persons or entities with Defendants' interests. This contention ignores that the burden is on Defendants and the prejudice is a loss of the ability to pursue, much less fulfill, a lawful duty. A protective order is necessary in this case to protect Defendants from being unduly burdened and unfairly prejudiced by Plaintiffs obtaining via discovery the identities of those individuals and entities necessary to Ohio's securing the drugs or materials necessary to fulfill the lawful implementation of the death sentences imposed on Plaintiffs and other non-party inmates. The Court does not reach this conclusion lightly, and as with many of the issues that have been manifest in this long litigation, today's issues presents a close call. This Court is cognizant of the competing interests at issue here, both those presented by the claims asserted in this case and those overarching goals inherently underlying the instant dispute.

The surface dispute is clear. Defendants seek to fulfill a legal duty, but can only do so if they obtain the drugs and materials necessary to enable the implementation of their execution protocol. Plaintiffs in turn argue that Ohio cannot obtain drugs or materials without violating the law, and that even if they could, any meaningful challenge to the use of the drugs or materials obtained must by necessity include the practices of the entities involved. In other words, Plaintiffs argue, if they cannot test the drugs or materials that Ohio obtains in light of the source and practices of the entities from which the drugs or materials are obtained, then they cannot know precisely what to look for and cannot consequently mount a truly meaningful challenge.

The underlying dispute is also clear. Defendants argue that Plaintiffs are trying to do by extrinsic means that which they have been unable to do in this litigation-that is, to delay further or even end executions in Ohio by making it too logistically difficult or impossible for the state to obtain the necessary drugs and materials. Such an end game is not the point of this litigation, at least not from this Court's view. Plaintiffs focus on unproven premises such as the need for source information to enable any meaningful testing of the execution drugs,3 but certainly Plaintiffs know the extended consequences and likely chilling effect of what obtaining such source information would be. But the Court is charged with resolving the claims brought before it and not with assisting any litigants with using the federal courts as a mechanism to obtain that which the law currently does not or cannot afford them.

At this juncture, Plaintiffs have failed to present a persuasive case for the proposition that source knowledge is necessary to mount a meaningful, much less comprehensive, challenge to Ohio's execution protocol. Although the information Plaintiffs seek is undoubtedly of some relevance or likely to lead to the discovery of relevant evidence, the burden on and prejudice to Defendants as discussed above outweighs Plaintiffs' interests.

This is not to say that Defendants are entitled to carte blanche in their efforts to obtain drugs and materials for executions. The parties have curiously left the issue of the full scope of any protective order outside much of their briefing and oral arguments. But this Court is concerned about issuing a blanket protective order that enables Defendants to exceed the scope of Ohio's execution protocol and secrecy statute. Given the overarching value of transparency that most often should accompany government action, this Court concludes that Defendants are not entitled to a protective order that exceeds the scope of Ohio's execution protocol. Rather, a limited protective order would serve the state's interests but also provide Plaintiffs and the public at large with information as to what course Ohio is pursuing, even if disclosure of the consequent details of that action are then necessarily curtailed.

The current execution protocol contemplates the use of pentobarbital and thiopental sodium. (ECF No. 521-1, at page ID # 14167.) Any other drug that Ohio tries to obtain for purposes of conducting executions exceeds that provided for in the Ohio Department of Rehabilitation and Correction policy that "establish[es] guidelines for carrying out a courtordered sentence of death." (Id. at Page ID # 14160.) A core component of this policy, or protocol, from which there can be no departure is that "[t]he drugs required by this policy shall be used." (Id. at Page ID # 14162.) Thus, the moment Defendants pursue drugs or compounding materials other than those constituting pentobarbital and thiopental sodium, Defendants are pursuing drugs extrinsic to the protocol and are outside the protections necessary to implementation of that protocol.

Additionally, to whatever extent it matters, Defendants would also be operating outside the limited scope of the state secrecy statute. Ohio Revised Code § 2949.221 provides that its protections extend to drugs and numerous materials "used in the application of a lethal injection of a drug or combination of drugs in the administration of a death sentence by lethal injection as provided for in division (A) of section 2949.22 of the Revised Code." Ohio Rev. Code § 2949.221(B). Any drug other than those provided for in Ohio's written protocol is not a drug that can be used in a lawful § 2949.22 execution.

If execution by lethal injection is legal, and the United States Supreme Court has repeatedly said it is, then it follows that there must be some manner of carrying it out. A court should then regard discovery that overly burdens or outright prevents a state from obtaining the drugs, materials, or assistance needed to execute by lethal injection as suspect and consequently drill down into the parties' arguments on each side of the issues. The specific, albeit limited, evidence before this Court and Ohio's secrecy statute together present good cause for issuance of the requested protective order. Having concluded that Rule 26(c) considerations, taken both alone and in conjunction with Ohio statutory law, support a protective order, this Court need not and does not discuss Defendants' moot and likely unpersuasive argument that a general publicinterest confidentiality privilege supports nondisclosure of the protected information.

II. Conclusion

For the foregoing reasons, the Court GRANTS Defendants' motion for a protective order (ECF No. 530), DENIES Plaintiffs' motion to exclude the testimony and declaration of J. Lawrence Cunningham (ECF No. 536), and DENIES Defendants' motion to exclude the testimony and declaration of Randy P. Juhl (ECF No. 542). The Court therefore ORDERS that any information or record in Defendants' possession, custody, or control that identifies or reasonably would lead to the identification of any person or entity who participates in the acquisition or use of the specific drugs, compounded or not, that Ohio indicates in its execution protocol it will use or will potentially seek to use to carry out executions is protected and not subject to discovery.4 This protective order is intended to extend to those persons who or entities that have not waived or forfeited its protection and who manufacture, compound, import, transport, distribute, supply, prescribe, prepare, administer, use, or test the compounding equipment or components, the active pharmaceutical ingredients, the execution protocol drugs or combination of drugs, the medical supplies, or the medical equipment used in carrying out any execution under Ohio Revised Code § 2949.22.5 This protective order governs discovery only in this litigation and does not apply outside this litigation or (in the increasingly unlikely event) after this litigation concludes.6

Plaintiffs have asked that if this Court enters a protective order, it then certify the issue for immediate appeal under 28 U.S.C. § 1292(b). Although a discovery order is at issue, the Court recognizes that the United States Supreme Court has held that "[t]he preconditions for § 1292(b) review . . . are most likely satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11 (2009). This Court finds that this "order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id.

To conclude otherwise would be to ignore the debatable and unsettled issues surrounding today's decision and the importance of those issues to this litigation and to Ohio's ability to secure drugs for the executions set to resume in 2017. If Ohio is correct and it cannot procure the requisite execution drugs without confidentiality, then a decision against confidentiality might lead to the end of lethal injection in the state and the ultimate termination of this case based on mootness. The specific questions of law are apparent and include whether Ohio's secrecy statute applies in this litigation and whether Plaintiffs are correct that granting the motion for a protective order means that this Court has essentially and summarily immunized the unnamed pharmacy defendants and others from the claims asserted against them in this case. The consideration of these and other issues would not entail much, if any, review of the relevant portion of the record by the court of appeals. This Court is also cognizant that upon the undersigned's forthcoming retirement, this litigation will transfer to another judicial officer who, like the undersigned, would no doubt benefit substantially from the Sixth Circuit's guidance on the legal issues involved.

Accordingly, the Court CERTIFIES this Opinion and Order for interlocutory appeal and STAYS this Opinion and Order and all further proceedings before this Court pursuant to § 1292(b), except for consideration of the two pending motions for voluntary dismissal. (ECF Nos. 552, 587.) With the exception of the default briefing schedule related to these two motions, this Court VACATES all other case deadlines, including those related to the recent amended and supplemental pleadings. If Plaintiffs do not effectuate a timely appeal, the Court shall hold a status conference and proceed to schedule new deadlines.

IT IS SO ORDERED.