In re: George Lombardi v.
2014 U.S. App. LEXIS 1679
| 8th Cir. | 2014Background
- Missouri sought to prohibit district court discovery of identities of the physician, pharmacist, and laboratory involved in the pentobarbital execution protocol.
- Missouri’s lethal-injection protocol shifted from sodium thiopental to propofol, then to pentobarbital in 2013 amid concerns about availability and ethics.
- Execution team includes personnel who administer lethal chemicals and direct supporters; confidentiality of identities was argued under Missouri statute and privileges.
- District court ordered disclosure of the three identities; district court also considered protective orders for execution-team members.
- Three-judge panel granted mandamus to prohibit disclosure of the physician; declined as to pharmacy and laboratory; en banc granted relief reversing on all three identities.
- The en banc court ultimately vacated the district court’s discovery orders requiring disclosure of all three identities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion ordering disclosure of execution-team identities | Lombardi; disclosure necessary for claims to proceed | Lombardi; disclosure unnecessary and harmful to state interests | Yes; writ issued to vacate all three discovery orders |
| Whether mandamus is appropriate to prevent disclosure of sensitive information | Mandamus warranted due to irreparable harm and lack of adequate alternatives | Other remedies available; privilege and relevance issues unresolved | Yes; extraordinary writ awarded to vacate disclosure orders |
| Whether the Eighth Amendment claim requires pleading a readily available alternative method of execution | Cites Baze to demand evidence of an alternative method | No such pleading requirement; discovery should not be directed to execution-team identities | No such requirement; but court vacated on other grounds; discovery nonetheless improper |
| Whether state-law or state-secrets privilege supports withholding identities | Privilege protects confidential execution-team identities | Privilege applies; protects identities from disclosure | Privilege arguments considered; court balanced interests and favored disclosure; writ issued on disclosure orders |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (U.S. 2008) (Eighth Amendment standard on alternative methods of execution)
- Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) (pleading standard for Eighth Amendment claims post-Baze)
- Nooner v. Norris, 594 F.3d 592 (8th Cir. 2010) (standard for Eighth Amendment claims; not requiring a readily available alternative)
- Cook v. Brewer, 637 F.3d 1002 (9th Cir. 2011) (post-Baze standard applied to Rule 12(b)(6) context)
- Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011) (alternative Cook opinion emphasizing pleading standards)
- Malloy v. South Carolina, 237 U.S. 180 (U.S. 1915) (discussion on ex post facto and punishment changes)