`For the Eighth Circuit
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`No. 16-3072
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`In re: Missouri Department of Corrections
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`lllllllllllllllllllllPetitioner
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`Appeal from United States District Court
`for the Western District of Missouri - Jefferson City
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` Submitted: July 7, 2016
` Filed: September 2, 2016
`[Unpublished]
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`Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
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`PER CURIAM.
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`The Missouri Department of Corrections (“MDOC”) filed petitions for writs
`of mandamus prohibiting the district court from enforcing orders requiring MDOC
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`to produce information in response to a subpoena by two Mississippi death-row
`inmates and to provide a detailed privilege log regarding that information. We deny
`MDOC’s petition regarding production of the subpoenaed information and deny as
`moot its petition regarding production of the privilege log.
`
` The Honorable Stephen R. Bough, United States District Judge for the
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`Western District of Missouri.
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`Richard Jordan and Ricky Chase are Mississippi death-row inmates who
`Mississippi proposes to execute by the serial intravenous injection of three drugs:
`midazolam, vecuronium bromide, and potassium chloride. In a case presently
`pending in the United States District Court for the Southern District of Mississippi,
`these inmates are challenging this execution method as cruel and unusual punishment
`under the Eighth Amendment. After the court denied a motion to dismiss, the inmates
`served upon MDOC a third-party subpoena for documents and a Federal Rule of Civil
`Procedure (“FRCP”) 30(b)(6) deposition notice seeking information regarding
`MDOC’s use of pentobarbital in lethal injections, including the identities of MDOC’s
`suppliers of pentobarbital.
`
`MDOC filed a motion to quash the subpoena in the United States District Court
`for the Western District of Missouri. In support of this motion, it submitted the
`affidavit of MDOC Director George Lombardi, who explained that because MDOC’s
`pentobarbital suppliers “require the assurance of confidentiality,” producing the
`information sought by the inmates would result in the state no longer being able to
`obtain the drug for use in executions. In light of this risk, MDOC argued, the
`inmates’ subpoena represented an undue burden under FRCP 45(d)(3)(A)(iv) and a
`violation of Missouri’s right to sovereign immunity under the Eleventh Amendment.
`MDOC further contended that the inmates’ discovery request required MDOC to
`disclose information protected by the state secrets privilege.
`
`After considering MDOC’s arguments, the district court ordered MDOC to
`provide Jordan and Chase with a more detailed privilege log. The court subsequently
`denied MDOC’s motion to quash the inmates’ subpoena, ordering MDOC to produce
`the majority of the information the inmates sought. MDOC has filed in this court
`petitions for a writ of mandamus to prevent the enforcement of these orders.
`
`Extraordinary writs like mandamus are “useful ‘safety valves’ for promptly
`correcting serious errors,” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111
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`(2009) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
`(1994)), but “only exceptional circumstances amounting to a judicial usurpation of
`power or a clear abuse of discretion” will justify the invocation of the extraordinary
`remedy of mandamus. Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (internal
`citations and alterations omitted). To obtain a writ of mandamus, the petitioning
`party must satisfy two prerequisites: his entitlement to the writ must be “clear and
`indisputable,” and he must have “no other adequate means to attain the relief he
`desires.” Id. at 380–81. “[I]f the first two prerequisites have been met, the issuing
`court, in the exercise of its discretion, must be satisfied that the writ is appropriate
`under the circumstances.” Id. at 381.
`
`We address first MDOC’s argument that the district court abused its discretion
`when it ruled that the inmates’ subpoena does not impose on MDOC an undue burden
`under FRCP 45(d)(3)(A)(iv). This rule prohibits the discovery of information “where
`no need is shown, or compliance would be unduly burdensome, or where harm to the
`person from whom discovery is sought outweighs the need of the person seeking
`discovery of the information.” Miscellaneous Docket Matter No. 1 v. Miscellaneous
`Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc.
`v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)). MDOC argues that, in light
`of Director Lombardi’s assertion that MDOC’s pentobarbital suppliers have informed
`him that they will no longer provide the pentobarbital if their identities are revealed,
`disclosing this information would prevent the state from carrying out executions and
`would provide no support for the inmates’ Eighth Amendment claim.
`
`As the district court recognized, several factors undermine MDOC’s argument
`regarding the likely consequences of disclosing the suppliers’ identities. First,
`Director Lombardi’s statement regarding the suppliers’ intentions is hearsay, does not
`point to any specific agreement between MDOC and its suppliers, and is inherently
`speculative as to the future decisions of those suppliers. Thus, although the suppliers
`may have cautioned Lombardi against disclosing their identities, their actual response
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`to such disclosure remains a function of the various financial, political, and other
`factors the suppliers may consider when deciding whether to continue supplying
`pentobarbital to MDOC. Because of this uncertainty, we also reject MDOC’s
`argument that, because MDOC’s supplier would cease to provide pentobarbital to
`anyone upon disclosure of its identity, this information would provide no support to
`the inmates’ Eighth Amendment claim, which requires them to identify an “available
`alternative method of execution.” See Glossip v. Gross, 576 U.S. ---, 135 S. Ct. 2726,
`2738 (2015) (emphasis added). We cannot infer from such a speculative prediction
`that the disclosed information would result in no support for the inmates’ claim.
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`Even if MDOC’s present sources stopped providing pentobarbital, Lombardi’s
`affidavit fails to establish that MDOC would be unable to locate an alternative
`supplier or produce the drug on its own. Although Director Lombardi, in his original
`affidavit, averred that MDOC “searched extensively for suppliers of lethal chemicals”
`and that the only suppliers that MDOC “found” would require “the assurance of
`confidentiality,” MDOC neither discloses how many suppliers it found nor
`demonstrates that it would be unable to find new suppliers of pentobarbital (or
`substitute lethal chemicals) if it were required to disclose the identities of its current
`suppliers. Moreover, as a Missouri state court recently observed, “The State of
`Missouri can, as proposed by [the Department’s] own counsel, Attorney General
`Chris Koster, explore establishing its own laboratory to produce chemicals for use in
`lethal injection executions as an alternative to keeping the identity of the providers
`secret.” Guardian News & Media, LLC v. Missouri Dep’t of Corr., No.
`14AC-CC00251, at *6 (Mo. Cir. Ct. July 15, 2015). These possibilities further
`undermine MDOC’s argument regarding the burdens of complying with the inmates’
`subpoena. Therefore, we cannot conclude that the district court clearly abused its
`discretion when it ruled that discovery of the suppliers’ identities would not impose
`on MDOC an undue burden under FRCP 45(d)(3)(A)(iv).
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`We next consider MDOC’s argument that the district court clearly abused its
`discretion when it ruled that sovereign immunity does not protect MDOC from
`having to comply with the inmates’ discovery request. In In re Missouri Department
`of Natural Resources, we recognized that “[t]here is simply no authority for the
`position that the Eleventh Amendment shields government entities from discovery in
`federal court.” 105 F.3d 434, 436 (8th Cir. 1997). Subsequently, in Alltel
`Communications, LLC v. DeJordy, we declined to decide whether sovereign
`immunity provided states with protection against “disruptive third-party subpoenas
`that would clearly be barred in a State’s own courts.” 675 F.3d 1100, 1104–05 (8th
`Cir. 2012). We again decline to reach that question here. The district court found
`that even if the Eleventh Amendment afforded such protection, MDOC had failed to
`demonstrate that disclosing the identity of Missouri’s pentobarbital suppliers would
`be disruptive to the state’s autonomy. Based on the record before us, we cannot
`conclude that this ruling represented a clear abuse of discretion.
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`For similar reasons, we cannot conclude that the district court clearly abused
`its discretion when it ruled that the information sought by the inmates is not protected
`by the state secrets privilege. The state secrets privilege is a federal common law
`evidentiary rule that protects “military and state secrets” from discovery. See United
`States v. Reynolds, 345 U.S. 1, 6–7 (1953) (“[T]he privilege against revealing military
`secrets [is] a privilege which is well established in the law of evidence.”). We have
`previously recognized that the privilege applies in cases involving national security,
`diplomatic secrets, and military intelligence. Black v. United States, 62 F.3d 1115,
`1118 (8th Cir. 1995). However, we have never recognized that state agencies can
`invoke the privilege in other types of cases. Therefore, we cannot say that the district
`court abused its discretion by refusing to apply the state secrets privilege. 2
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` Before the district court, MDOC also argued that Missouri Revised Statute
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`§ 546.720 creates a privilege against production in federal court. The district court
`ruled that the statute does not protect information regarding MDOC’s suppliers.
`Because MDOC did not raise this argument in its petitions, we decline to address it.
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`Finally, we are not satisfied that MDOC has at its disposal “no other adequate
`means to attain the relief [it] desires.” See Cheney, 542 U.S. at 380. MDOC has
`failed to demonstrate why its suppliers’ concerns could not be alleviated through the
`district court’s entering of a protective order requiring that the discovered identities
`remain confidential apart from their use in the inmates’ Eighth Amendment suit. See
`Kerr v. U.S. Dist. Court, 426 U.S. 394, 405 (1976) (affirming denial of mandamus
`petition because in camera review of the individual documents represented “an
`avenue far short of mandamus to achieve precisely the relief” that the petitioners
`sought); In re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir. 1991) (recognizing
`possibility that protective orders could limit the dissemination of trade secrets
`produced during litigation).
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`We recognize that the public disclosure of a pentobarbital supplier’s identity
`may have detrimental consequences for a state. See, e.g., Zink v. Lombardi, 783 F.3d
`1089, 1113 (8th Cir. 2015) (en banc) (“[T]he practical effect of public disclosure
`would likely be frustration of the State’s ability to carry out lawful sentences.”).
`However, MDOC has failed to satisfy us that its entitlement to a writ of mandamus
`is “clear and indisputable” or that it has “no other adequate means” to attain the relief
`it desires. See Cheney, 542 U.S. at 380–81. Because MDOC has failed to satisfy
`either of the two prerequisites for obtaining a writ of mandamus, we deny MDOC’s
`petition for a writ of mandamus seeking to prohibit the district court from enforcing
`its order regarding compliance with the inmates’ discovery request. Because MDOC
`must comply with the order to produce the information in question, we deny as moot
`its petition to prohibit enforcement of the district court’s order to produce a more
`detailed privilege log.
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