Va. Dep't of Corr. v. Jordan, 921 F.3d 180

Background

Plaintiffs Jordan and Chase (Mississippi death-row inmates) sued Mississippi over its three-drug lethal-injection protocol, alleging Eighth Amendment risk of severe pain and arguing for feasible alternatives (one-drug protocol/pentobarbital).
During discovery they served a Rule 45 subpoena and a Rule 30(b)(6) notice on the Virginia Department of Corrections (VDOC) seeking documents and testimony about Virginia’s execution practices, suppliers, and protocols; Virginia had similar practices (three-drug protocol using compounded midazolam).
VDOC produced a number of documents (redacted supplier agreement, labels, testing certificates, execution manual, prior transcripts) but objected to further production, moved to quash, and asserted privilege, undue burden, and state sovereign immunity.
The district court quashed the outstanding subpoena requests on undue-burden grounds: (1) much of the requested information had already been produced, (2) additional discovery was unlikely to advance the plaintiffs’ burden to show a feasible, significantly safer alternative, (3) many requests would reveal the identity of Virginia’s drug supplier and chill future supply, and (4) a confidentiality order would not adequately prevent harm.
VDOC conditionally asserted sovereign immunity but declined to insist on resolving that jurisdictional question, so the Fourth Circuit proceeded to decide the merits and affirmed the district court’s quash order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule 45 subpoena on a nonparty state agency should be enforced	Jordan & Chase: VDOC holds relevant info to show Mississippi could obtain pentobarbital, viability of one-drug protocol, and flaws in three-drug use	VDOC: nonparty burden, confidentiality of supplier identity, overbroad, sovereign immunity	Court: Quash upheld — undue burden outweighs marginal benefit
Whether additional VDOC discovery is necessary to show a "feasible and readily implemented" alternative	Jordan & Chase: Virginia’s materials could rebut Mississippi’s inability-to-acquire-pentobarbital claim or show procedural differences	VDOC: it already lacks pentobarbital; Virginia never used one-drug protocol; produced key documents	Court: Additional material unlikely to materially help plaintiffs’ burden; VDOC already showed inability to obtain pentobarbital
Whether disclosure of drug-supplier identity can be protected by a confidentiality order	Jordan & Chase: confidentiality order can prevent harm and allow use of materials	VDOC: identity is highly sensitive; disclosure would chill suppliers and confidentiality orders risk inadvertent compromise	Court: District court reasonably found protective order insufficient; quash proper
Whether plaintiffs could take a Rule 30(b)(6) deposition despite quashed document requests	Jordan & Chase: deposition could yield additional or trial-admissible testimony beyond documents	VDOC: burdens of deposition similar; documents already supplied; plaintiffs gave no specifics	Court: Denial of 30(b)(6) deposition proper under same undue-burden analysis

Key Cases Cited

Baze v. Rees, 553 U.S. 35 (2008) (plurality: Eighth Amendment challenge requires feasible, readily implemented alternative that significantly reduces the risk of severe pain)
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (courts must resolve subject-matter jurisdiction before reaching merits)
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (personal-jurisdiction principles and sequencing of jurisdictional questions)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (courts should not reach merits before resolving jurisdictional limits)
Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) (statutory availability of suit against a state is antecedent to sovereign-immunity question)
Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160 (4th Cir. 2014) (district courts have broad discretion over discovery)
In re Grand Jury Subpoena, 870 F.3d 312 (4th Cir. 2017) (standard of review for discovery rulings: abuse of discretion; factual findings for clear error)
Strawser v. Atkins, 290 F.3d 720 (4th Cir. 2002) (circuit precedent allowing merits affirmance when state conditionally asserts sovereign immunity)
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812 (5th Cir. 2004) (courts should assess requesting party’s need and available alternative sources in third-party discovery)
In re Modern Plastics Corp., 890 F.3d 244 (6th Cir. 2018) (Rule 45 undue-burden balancing includes nonfinancial burdens such as confidentiality)
In re Lombardi, 741 F.3d 888 (8th Cir. 2014) (protecting identities of execution-drug suppliers from discovery)