In Re: Ohio Execution Protocol Litigation, 2:11-cv-01016

Background

This is an order on Defendants’ motion for a protective order to partially redact/defer public filing of portions of the December 2016 deposition of Stephen Gray (in-house counsel for Ohio Dept. of Rehabilitation & Corrections) and several anonymous execution team members. Defendants sought to keep portions sealed; Plaintiffs opposed.
The disputed pages from Gray’s deposition are PageID 30226–27 and 30255 within a deposition provisionally filed under seal during discovery before a January 2017 preliminary injunction hearing.
Magistrate Judge Merz had presided over Gray’s deposition by agreement to resolve confidentiality and privilege issues; some objections during the deposition were made under Ohio’s lethal-injection secrecy statute and were overruled at the deposition.
Plaintiffs argued the court relied on deposition testimony in granting preliminary injunctive relief and thus the relied-on material should be public.
The Court evaluated whether the disputed testimony implicated protections under Ohio Rev. Code § 2949.221(B) (which protects identifying information) and whether unsealing would compromise anonymity.
The Court ordered the three pages (PageID 30226–27 and 30255) unsealed and directed Plaintiffs to file them separately, concluding the material was relied on by the court and unsealing would not violate the secrecy statute or reveal identifying information.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the specified deposition pages should remain sealed	Plaintiffs: court relied on deposition testimony in granting preliminary injunction, so portions relied upon should be public	Defendants: secrecy statute / confidentiality concerns justify sealing	Held: Pages 30226–27 and 30255 unsealed; they do not identify protected persons and were relied on by the court
Whether deposition rulings made while Magistrate presided should be revisited now	Plaintiffs: deposition testimony used in ruling; should be public	Defendants: prior in-deposition objections preserved and justify continued sealing	Held: Court declined to depart from in-deposition rulings only insofar as they were in law; but concluded the particular testimony at issue is not covered by the secrecy statute
Whether Ohio Rev. Code § 2949.221(B) bars disclosure of the contested testimony	Plaintiffs: testimony is not of a type that identifies or leads to identification; should be disclosed	Defendants: testimony could reveal identities or sensitive info protected by statute	Held: Statute does not protect the information on these pages; unsealing permitted
Whether public access is required when the court relied on sealed deposition material in issuing relief	Plaintiffs: public has right to access material relied upon by a court (even if deposition)	Defendants: confidentiality can outweigh public access interests	Held: Public access interest satisfied here; unsealing required for the identified pages

Key Cases Cited

Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (public access to materials relied on by a court)
Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) (recent Sixth Circuit capital-litigation authority cited by parties)
In re Ohio Execution Protocol Litig. (Fears v. Kasich), 845 F.3d 231 (6th Cir. 2016) (decision upholding Ohio lethal-injection secrecy statute was on appeal at time of deposition)
Charvat v. EchoState Satellite, LLC, 269 F.R.D. 654 (S.D. Ohio 2010) (authority discussing public access to court-reliant materials)