Beruflich Dokumente
Kultur Dokumente
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STATE OF NEVADA; NEVADA
Supreme Court Case No.:
DEPARTMENT OF CORRECTIONS;
JAMES DZURENDA, Director of the District Court Case No. A-18-777312-B
Electronically Filed
Nevada Department of Corrections, in his Sep 05 2018 08:22 a.m.
official capacity; IHSAN AZZAM, Ph.D, Elizabeth A. Brown
M.D., Chief Medical Officer of the State of Clerk of Supreme Court
Nevada, in his official capacity; and JOHN
DOE, Attending Physician at Planned
Execution of Scott Raymond Dozier in his
official capacity,
Petitioners,
vs.
and
mandamus to prevent the court ordered disclosure of the identity of the Attending
Physician that was scheduled to attend Scott Dozier’s execution on July 11, 2018. As
Dzurenda, attests that disclosing this individual’s identity will expose him or her and
their family to harassment, intimidation, and even death threats. This includes unwanted
contact by death penalty opponents and associates of inmates on death row. Disclosing
this information will stifle the State’s ability to find qualified individuals willing to assist
because, understandably, no one will want to put themselves or their families at risk
without the assurance of anonymity and confidentiality. The Attending Physician has
made clear that he or she will only serve as the attending physician to the extent their
attorneys-eyes only protective order is not an adequate safeguard. McGehee v. Tex. Dept.
of Criminal Justice, No. H–18–1546, 2018 WL 3996956, at *12 (S.D. Tex. August 21,
2018).
Along with the Attending Physician’s identity, the District Court also allowed
inquiry into highly sensitive information about the lethal injection protocol’s creation
(including background science) and the State’s supply of other drugs that are unrelated
to the drug manufacturers that have brought this suit. This information is not remotely
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relevant to the drug manufacturers’ claims that the State improperly purchased and
the lethal injection protocol itself would not be entitled to this highly sensitive
information. The District Court’s discovery order gives drug manufacturers broader
The drug manufacturers’ true motive for seeking this information and the
other drugs and to scare people away from assisting the State. Removing anonymity
and allowing this disclosure will prevent the State from finding the supplies and
individuals necessary to carry out lawful capital sentences. Courts considering similar
discovery requests have held “the disclosures would cause an undue burden on and
prejudice Defendants by subjecting them to the risk of harm, violence, and harassment
and by making it difficult for them to obtain lethal-injection drugs.” In re Ohio Execution
At minimum, the State should not be required to produce this incredibly sensitive
information before this Court determines whether the drug manufacturers even possess
a viable cause of action in the related writ proceeding in Supreme Court Case Number
76485. If the drug manufacturers do not have cognizable claims for relief, the Court
need not address these discovery issues and the State need not produce this
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information. And many of the issues raised in this Petition inherently overlap the issues
2018 and Friday, September 7, 2018, and there is an evidentiary hearing scheduled for
Tuesday, September 11, 2018. The drug manufacturers intend to expose this
information during those proceedings. The District Court denied the State’s motions
for protective orders and orders in limine—and request to stay its rulings pending this
Court reviews the Petition. Once this information is revealed, it cannot be taken back.
of the facts is provided in the related writ proceeding in Supreme Court Case Number
76485. It suffices to say here that Alvogen filed this lawsuit on July 10, 2018, the day
statutory and common law claims that the State illegally obtained Alvogen’s
return of its drug, Midazolam, based on its unfounded assertions that Defendants
obtained the drug through “subterfuge” or by some similar effort to evade alleged
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Sandoz, make nearly identical claims, although Sandoz has abandoned the supposed
statutory claims and only advances the common law claims. (App. 81-295).
All three drug manufacturers have served NRCP 30(b)(6) deposition notices and
written discovery aimed at the identity of “John Doe,” the Attending Physician, details
regarding the creation of the State’s lethal injection protocol, and specifics about the
The State filed two motions for protective order and motions in limine on orders
shortening time on August 30, 2018. (App. 484-734). The District Court held a hearing
on September 4, 2018. While a written order is not yet available, the District Court
order and limited the timeframe for the State’s disclosure regarding other drugs, other
drug manufacturers, and creation of the protocol to 2016 to present.1 The District
Court’s ruling did not otherwise address the underlying irrelevancy of the requested,
sensitive information.
III. ARGUMENT
Nevada Rule of Appellate Procedure 8(a) requires a party seeking a stay to first
move in the lower court before requesting relief from this Court. NRAP 8(a); see also
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The drug manufacturers stipulated that they did not seek the identity of other
execution team members.
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Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 657, 6 P.3d 982, 986 (2000). Yesterday, the
State requested this stay from the District Court and was denied.
When considering a stay, this Court weighs a number of factors: (1) whether the
object of the petition will be defeated if the stay is denied; (2) whether petitioner will
suffer irreparable injury if the stay is denied; (3) whether the real party in interest will
suffer irreparable harm if a stay is granted; and (4) whether petitioner is likely to prevail
on the merits of the petition. NRAP 8(c). No single factor is dispositive and, if one or
two factors are especially strong, those may counterbalance other weak factors. Mikohn
Gaming Corp. v. McCrea, 120 Nev. 248, 251, 89 P.3d 36, 38 (2004).
on the merits, the movant must ‘present a substantial case on the merits when a serious
legal question is involved ….’” See Hansen, 116 Nev. at 659, 6 P.3d at 987 (quoting Ruiz
v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981)) (emphasis added). A stay is appropriate
when the appeal does not appear frivolous or merely an attempt to delay. Mikohn Gaming
Corp., 120 Nev. at 253, 89 P.3d at 40. A stay may be entered even if the appeal’s merits
As described more fully in the Petition, and based on the numerous cases cited
therein, the State has presented a substantial case on whether the Attending Physician’s
identity must be disclosed given its lack of relevancy and the related security concerns,
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including intimidation and death threats. Likewise, the State has made a substantial case
that specifics regarding the lethal injection protocol’s creation and the State’s other drug
supplies are irrelevant to the drug manufacturers’ claims. Releasing this information will
prejudice the State and impose an undue burden because it will make individuals and
companies unwilling to assist the State with its obligation to carry out lawful capital
physician would completely undermine the process and it would be difficult if not
impossible to continue with the execution as authorized by state law, imposed by juries,
and ultimate ordered by the courts.” (App. 550). Numerous courts in similar contexts
have protected this information from disclosure because of its lack of relevancy and
order would be a sufficient precaution. Other courts have held that it is not. For
instance, in McGehee v. Texas Dept. of Criminal Justice, No. H–18–1546, 2018 WL 3996956
(S.D. Tex. August 21, 2018), the court concluded that a protective order limiting
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process.
Id. (quoting Jordan v. Hall, 2018 WL 1546632, at *11 (S.D. Miss. 2018)); see also In re
Missouri Dep’t of Corrections, 839 F.3d at 737 (refusing to require disclosure under a
protective order because “‘it is likely that active investigation of the physician,
pharmacy, and laboratory will lead to further disclosure of the identities’”); Jordan, 2017
WL 5075252, at *21 (“[S]uch protective orders are not adequate to protect a state’s
interest in shielding the identities of individuals and entities that assist the state in
C. If a Stay is Denied, the State will Suffer Harm and the Objects of the
Petition Will Be Defeated.
Courts can consider these two factors together. “Although irreparable or serious
harm remains part of the stay analysis, this factor will not generally play a significant
role in the decision whether to issue a stay.” Mikohn Gaming Corp., 120 Nev. at 253, 89
P.3d at 39.
cannot be clawed back. The proverbial bell cannot be unrung. Director Dzurenda avers
that releasing this information “would cause irreparable harm to NDOC and the State.”
(App. 549-50). “It is well known that people pressure and harass individuals and drug
suppliers not to assist the states performing capital punishment. This pressure and
harassment makes it extremely difficult for the State to find companies and individuals
willing to assist the State, which frustrates the State’s sovereign interest.” (App. 550).
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The object of the State’s Petition—protecting the Attending Physician’s identity and
disclose this sensitive information before this Court reviews the Petition.
D. The Drug Manufacturers Will Not Suffer Any Harm From a Stay.
Conversely, the drug manufacturers will not suffer any harm if the Court grants
a stay while it reviews the important issues presented. “[A] mere delay in pursuing
discovery and litigation normally does not constitute irreparable harm.” Mikohn Gaming
Corp., 120 Nev. at 253, 89 P.3d at 39. Nor does increased litigation expenses. Id.
The drug manufacturers cannot claim injury from the denial of discovery to
which they are not entitled. A short delay will not harm the drug companies while the
Court considers these highly important discovery issues that undeniable State-interest
implications.
IV. CONCLUSION
For these reasons, all NRAP 8(c) factors weigh in favor of granting a stay and
the State respectfully requests that the Court enter a stay pending this Court’s decision
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NRAP 27(e) Certificate
2. I verify that I have read the foregoing Emergency Motion and that the same
is true of my own knowledge, except for matters stated on information and belief, and
3. The facts showing the existence and nature of the emergency are set forth
in the Motion and in the Petition. As described above, relief is needed in less than 14
days to avoid irreparable harm from the disclosure of the subject information during
the depositions on September 6th and 7th as well as the evidentiary hearing on September
11, 2018.
4. The relief sought in this Motion was presented to the District Court and
was denied today, September 4, 2018. The State is filing this Motion at the earliest
possible time.
5. I have made every practicable effort to notify the Supreme Court and
opposing counsel of the filing of this Motion. The State’s intent to file this Motion was
expressed at the District Court hearing today and opposing counsel were alerted to the
filing of this Motion shortly before it was submitted for e-filing. I also called the Clerk
of Court’s Office before filing. A courtesy copy was emailed to all parties.
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6. Below are the telephone numbers and office addresses of the known
participating attorneys:
Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Tel: 202-637-3321
Counsel for Hikma Pharmaceuticals USA Inc.
E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristen L. Martini, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702-949-8200
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Counsel for Sandoz Inc.
J. Colby Williams, Esq. Noel B. Ix., Esq.
Philip R. Erwin, Esq. PEPPER HAMILTON LLP
CAMPBELL & WILLIAMS 301 Carnegie Center, Suite 400
700 South Seventh Street Princeton, NJ 08540
Las Vegas, NV 89101 Tel: 609-452-0808
Tel: 702-382-5222
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CERTIFICATE OF COMPLIANCE
I hereby certify that this Motion complies with the formatting requirements of
NRAP 27(d) and the typeface and type-style requirements of NRAP 27(d)(1)(E)
because this Motion has been prepared in a proportionally spaced typeface using Office
Word 2013 in size 14 double-spaced Garamond font. This filing also complies with
NRAP 32.
I further certify that I have read this Motion and that it complies with the page
Finally, I hereby certify that to the best of my knowledge, information and belief,
it is not frivolous or interposed for any improper purpose. I further certify that this
Motion complies with all applicable Nevada Rules of Appellate Procedure, in particular
NRAP 28(e)(1), which requires that every assertion regarding matters in the record to
may be subject to sanctions in the event that the accompanying brief is not in
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CERTIFICATE OF SERVICE
SEPTEMBER 5, 2018 with the Clerk of the Court for the Nevada Supreme Court by
Participants in the case who are registered CM/ECF users will be served by the
I further certify that a courtesy copy was emailed to counsel for Real Parties in
Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Tel: 202-637-3321
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Counsel for Hikma Pharmaceuticals USA Inc.
E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristen L. Martini, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702-949-8200
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