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

Background

Multiple Ohio death-row inmates (Tibbetts, Otte, Campbell, Van Hook, Bonnell) moved for two trained persons from their representation teams to witness executions preceding their own to assess whether executions are carried out constitutionally.
Plaintiffs invoked Fed. R. Civ. P. 34 as authority to observe the execution operation; the State refused per Ohio Execution Policy and Ohio Rev. Code § 2949.25.
The motion followed earlier testimony at a preliminary-injunction hearing; the Sixth Circuit later criticized the credibility and training of lay eyewitnesses to executions.
Plaintiffs narrowed the request to a nurse anesthetist plus counsel (not counsel for the executed inmate), arguing medical training would produce probative observations.
Defendants relied on statutory authority to restrict observers and raised security, confidentiality, and dignity concerns.
Magistrate Judge Merz denied the motion, finding a nurse anesthetist would add little probative value from the witness room, would likely be perceived as biased, and that permitting the request would implicate legislative authority and create administrable problems if expanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs may designate additional witnesses (trained observers) to attend executions under Rule 34	Rule 34 permits entry to observe operations; witnessing is relevant discovery to assess constitutional compliance	Ohio statute and policy control who may attend; State interest in security and dignity justifies exclusion	Denied — Court defers to legislative/state authority and denies Rule 34 request for additional witnesses
Whether a nurse anesthetist would provide probative, expert observations from the witness room	A nurse anesthetist’s medical training would make their eyewitness observations more reliable than lay testimony criticized by Sixth Circuit	Training would not enable meaningful evaluation from the witness room; perceived bias since chosen by plaintiffs	Denied — Court finds no showing that anesthetist could reliably assess consciousness from witness room and notes likely perceived bias
Whether Supreme Court precedent supports judicially-created access beyond statutory limits	Plaintiffs argued limited access to witness room only and that precedent doesn’t foreclose narrower relief	Defendants relied on Holden and Houchins to support legislative authority to limit access to executions	Held for Defendants — Court agrees Supreme Court precedent supports legislature’s authority to limit access
Whether granting the motion would create unworkable precedent or administrative problems	Plaintiffs asserted limited, case-specific relief	Defendants warned broad, unmanageable requests by other inmates and micro-management by courts	Denied — Court cites administrability concerns and potential flood of similar requests

Key Cases Cited

Holden v. Minnesota, 137 U.S. 483 (upheld statutory restriction on public view of executions)
Houchins v. KQED, Inc., 438 U.S. 1 (First Amendment does not guarantee greater access to penal facilities than public; policymaking for access lies with legislature)