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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporter:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Edward Harold Schad, Jr., and Robert Glen Jones, Jr., Plaintiffs, vs. Janice K. Brewer, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

No. CV 13-2001-PHX-ROS Phoenix, Arizona October 4, 2013 3:08 p.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE ROSLYN O. SILVER (Temporary Restraining Order Hearing)

Gary Moll 401 W. Washington Street, SPC #38 Phoenix, Arizona 85003 (602) 322-7263

Proceedings taken by stenographic court reporter Transcript prepared by computer-aided transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants:

A P P E A R A N C E S

For the Plaintiff Schad:

Kelley J. Henry Assistant Federal Public Defender FEDERAL PUBLIC DEFENDER'S OFFICE Capital Habeas Unit 810 Broadway Suite 200 Nashville, Tennessee 37203 Dale A. Baich Robin C. Konrad Assistant Federal Public Defenders FEDERAL PUBLIC DEFENDER'S OFFICE Capital Habeas Unit 850 W. Adams Street Suite 201 Phoenix, Arizona 85007-2730 John P. Todd Matthew H. Binford Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL Litigation Division 1275 W. Washington Street Phoenix, Arizona 85007-2997

For the Plaintiff Jones:

Also present by videoconference: Edward Harold Schad, Jr., Plaintiff Robert Glen Jones, Jr., Plaintiff

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Argument By Ms. Konrad By Mr. Todd By Ms. Konrad No. Description Witness:

I N D E X Page (None)

E X H I B I T S Admitted (None)

Page 5 18 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK:

P R O C E E D I N G S

This is case number CV 13-2001, Schad,

et al., versus Brewer, et al., on for temporary restraining order hearing. Counsel, please announce for the record. MS. HENRY: Mr. Schad. THE COURT: MS. HENRY: Thank you. Your Honor, and with counsels' permission,
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Kelley Henry on behalf of the plaintiff,

most of the arguments today will be handled by counsel for Mr. Jones. THE COURT: MS. KONRAD: All right. And Robin Konrad and Dale Baich from the
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office of the Federal Public Defender, representing Robert Jones. THE COURT: MR. TODD: defendants. THE COURT: Okay. come forward. MS. KONRAD: Your Honor, may I make the argument from All right. Thank you. Plaintiffs, Thank you. John Todd and Matt Binford on behalf of the

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Let's start with the petitioners.

the table, or would you like me to come to the -THE COURT: Come to the podium.
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MS. KONRAD:

Plaintiffs have made a simple request.

They asked for information related to the drug that will be used in their upcoming executions. None of the information At this
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seeks identity of persons involved in the execution.

moment, they think they know one drug of unex -- unexpired domestically obtained pentobarbital will be used. But due to a

response to a request for the same information by the ACLU, plaintiffs also know that the Department of Corrections purchased Nembutal, which is the brand name for pentobarbital, in 2011, but don't know the expiration date of that drug or when that was purchased. Let me be clear this case is not an Eighth Amendment challenge to the Arizona protocol on the drugs that will be used. This is a case about access to information under the
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First Amendment. Under California First Amendment Coalition, the Ninth Circuit held that the public has a First Amendment right of access to governmental proceedings in general, and in executions in California in particular. the circumstances here. Plaintiffs have repeatedly attempted to attain access to information regarding the drug the defendants intend to use in their executions. Defendants' refusal to release This case applies in

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nonconfidential information violates plaintiffs' First Amendment and due process rights.
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THE COURT: MS. KONRAD:

Why isn't it confidential? It's not confidential because the statute

specifically says the identity of executioners and other persons. It does not say "dates"; it does not say "codes," the
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National Drug Code; it does not say "companies"; it specifically says "persons." information that they have -THE COURT: So your view is is that when that was And so, therefore, the

enacted, "persons" did not mean corporations, although the Supreme Court of the United States has found in other cases that under the First Amendment, a corporation has a First Amendment right and a corporation is a person. MS. KONRAD: And we wouldn't argue with that entirely,
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except that the statute here does not apply to corporations, and even if it did, it doesn't apply to dates or codes. THE COURT: Well, okay. But if the dates and codes
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are going -- are going to expose who the corporation is, I need to know how you come about your position that a corporation or a company is not a person under this particular statute. We
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don't have a legislative history, but I'm -- I'm asking you that only because there certainly is an argument that a corporation could be. I am going to ask the defendants where the evidence is to establish, however, that they have a penological interest here with this particular corporation, but that's not for you

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to answer. So tell me, now, why is a company or a corporation not a person under the statute? MS. KONRAD: Because corporations are not the ones
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that are actually participating in the execution, and we have to look at it in that manner. people's identity? Why was this intended to protect

Because it says people who are

participating or performing an ancillary function in the execution process. And in the litigation that we've had in the past, not these particular plaintiffs here today, but other plaintiffs and other death-row prisoners, there have been discussions had of what the confidentiality statute covers, and it has not been read that broadly. It covered the names and identities of the actual individuals who are there: the medical team member; the special operations team member. This would be a new reading of the
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statute that -- that, Your Honor, really shuts down the purpose of the First Amendment: to be able to have access to this information and to know how the state of Arizona is carrying out its execution process. A corporation doesn't go in and participate in the execution. And that -- that's why a corporation in this The corporation is
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situation shouldn't be considered a person. not going in there.

There's not the same interest that an

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individual person would have for participating in an execution. And even if corporations are people, I'm not sure that the defendants have standing to assert the interests of those corporations, especially in particular one of the corporations, Nembutal, and its parent company, has said specifically it does not want to distribute to Department of Corrections for this particular purpose. THE COURT: name, it's lun -MS. KONRAD: THE COURT: MS. KONRAD: THE COURT: Lundbeck. Lundbeck. Um-hum. -- and Akorn agreed that they would not do They sold to Akorn -15:14:46 15:14:26

Then that company, and I've forgotten the

that, or at least as far as I can tell from the papers you've provided me, that was implied in some kind of a press release of some sort. Does anybody, or do you know whether or not Akorn is still producing this drug? MS. KONRAD: producing it, yes. As far as I'm aware, Akorn is still
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But Akorn, again, as you mentioned, we

attached exhibits to show that it adopted the position of the company, of Lundbeck, that -THE COURT: Okay. Help me out with the time -- with

the information concerning the timing history here. MS. KONRAD: Okay.
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THE COURT:

The Department of Corrections did turn

over information previously to establish what the drug was that they were using, pentobarbital, and that it had not been expired -MS. KONRAD: THE COURT: 2011, correct? Correct. -- right? And that was -- that was in
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Around that time? Correct, it was in August of 2011, they

MS. KONRAD:

provided information -THE COURT: All right. Let's go back there, then.
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In July of 2011, that's when the original company that was manufacturing this drug, Lenbuck-MS. KONRAD: THE COURT: Lundbeck, um-hum. -- noticed -- or notified the public that
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it was not going to ship the drug for the purpose of lethal injection. MS. KONRAD: THE COURT: Correct. So then, as I can tell here, Lenbuck, and

I'm looking at your Footnote 8, page 4, sold this company to Akorn, Inc. -By the way, is that an American company, or -MS. KONRAD: THE COURT: MS. KONRAD: THE COURT: Akorn? Yes. I believe so. It is. Okay.
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So that Akorn, it divests several products in the United States as part of a long-term business strategy, and then it says that they -- there was a -- I don't know if there was a press release or what. Exhibit J. I'm sorry, I have to look at
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As part of the agreement, Akorn will continue with

Lundbeck's restricted distribution program for Nembutal, which was implemented to restrict the use of the product in the U.S. So is it your position somehow they got the drug before the Lundbeck company and Akorn made these -- or promised not to sell the drugs for execution purposes, so that the Department of Corrections would have had to obtain this drug prior to July of 2011, or at least ordered it and then received it afterwards? Is that -- is that what you're telling me? I'm trying to
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Help me out with the timing here.

figure out why you're not getting the information now, and, of course, I'm going to ask the State. MS. KONRAD: Is that what you think?

Judge Silver, I think you're as confused

as we are, in part because we're not getting all of the information so we have to make certain assumptions. And what
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we have assumed is they obtained it before this distribution notice that the company wouldn't distribute to the -THE COURT: Okay. Let me then go on from there,

because -- to try to see if we can synthesize all of this. So then is there any information in the public record that would establish what the general expiration date is on
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this drug?

So that, for example, you can find expiration dates

that are six months, you can find expiration dates that are a year, and here we're essentially two years. Is there anything that you have to offer the Court? MS. KONRAD: I don't have anything specific. I think
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it would depend on when they purchased the drug. don't mind, I could ask my colleague -THE COURT:

And if you

That's a question that we have, and

perhaps you can -- you can help me out on that, because certainly, if there is any reason to believe that it has expired, then it would relate to the information that we know: that this company and a successor company said, We're not going to distribute this. So that would have been as of December of
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2011 or July of 2011, so it would have to have been purchased from those companies prior to that. date is critical. MS. KONRAD: THE COURT: Correct. And to know when, perhaps, this particular So then the expiration
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drug could be -- could expire on a routine basis would be relevant to a determination as to whether or not this information should be turned over. for. MS. KONRAD: And that makes sense, and I think the That's what I'm looking
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answer is 18 months, but if you wouldn't mind giving me one minute -15:20:05

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THE COURT: Okay.

Somebody is doing the research for you.

So if it's 18 months -- so that would make

Now, do you know, and I haven't seen in anything in

your papers, and I understand this is done on short notice, but nonetheless, is there any other company in the United States or in the world that manufactures this drug? MS. KONRAD: pentobarbital. THE COURT: MS. KONRAD: THE COURT: obviously. States? MS. KONRAD: THE COURT: MS. KONRAD: THE COURT: MS. KONRAD: THE COURT: I'm not sure of that answer -Okay. -- Judge Silver. Okay. So there we go.
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There is no domestic manufacturer of

Is there a non-domestic manufacturer? Not that's FDA approved. Well, that's different. I mean,
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But is there a manufacturer outside the United

But we do know -Those are critical questions for me, you

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understand what I'm saying. MS. KONRAD: THE COURT: Correct. So in order to determine whether or not

we've got a real irreparable harm issue here is just what -you know, we have, under oath, an affidavit by Director Ryan that it has not expired, based upon his personal information.
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I'm not sure what that means; I'm going to ask the Department of Corrections. So I don't -- you know, I don't know where that all comes from, either, but these are critical issues that I need to know, so you can help me out here and continue now with the arguments that you wish to make knowing what I'd like to know. MS. KONRAD: Well, and Judge Silver, we'd like to know The plaintiffs would like to know
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that information as well.

the dates that the drugs were purchased and that they were received, and like to know their expiration date, and that is part of our First Amendment argument. The First Amendment is what is at issue here, and the test that's applicable under California First Amendment Coalition that they discuss it is actually from a Supreme Court case, Press Enterprise. And that's where once the right of
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access attaches to a governmental proceeding where the First Amendment Coalition said that it attaches to the execution process, then that right may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. At this point in time, defendants have not demonstrated an essential reason that they cannot turn over purchase date, expiration date, that they cannot turn over information as far as the drug code number, the manufacturer,
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or the distributor.

And this, as we put in our papers, is

information that was turned over in the past. And I'd actually like to introduce as an exhibit if the defendants -- I'm not sure if you have an objection or not to this. This is information that is the same exact
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information that we're asking for that was turned over in a prior lawsuit of West versus Brewer in discovery -THE COURT: turning that over? MR. TODD: THE COURT: MS. KONRAD: THE COURT: We don't. Okay. May I approach? Okay. These are -- these are the pictures
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Why would you have any objection to

that you referred to in your petition? MS. KONRAD: Yes, Your Honor. And in West versus
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Brewer, which is case number 11-CV-1409, document 39 from that lawsuit in this court. THE COURT: Yeah, I'm sorry to move you along, you're

doing a great job, but let me ask you some questions here about this. MS. KONRAD: THE COURT: number. Um-hum. So you got this information. It has a lot
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So then from the lot number did you then go to the

company to find the expiration date, is that how you did it? Or did you go to NDAC, or how did you come about that? Because
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I don't -- I don't see here -- oh, I see. expiration date, sorry.

There is an

So in all -- all of the paper -- where in these pictures -- was this on the bottle, the back of the bottle, or was this on the -- on the box? MS. KONRAD: as -THE COURT: expiration date? See that last page where it shows the So the first two pictures that are marked
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Says 2013, March 2013. That was a -- this is a photograph that

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MS. KONRAD: the -THE COURT: MS. KONRAD: THE COURT: MS. KONRAD: THE COURT:

But what is the photograph of? This is the bottom of the box. Oh, it's the bottom. Um-hum. Okay. All right. So there was an
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expiration date on all of those as March of 2013. All right. MS. KONRAD: Okay. Go ahead.

And as I was saying, this exhibit was -15:25:24

these documents were admitted in this lawsuit in document 39, and in that document it says that defendants hand-delivered these disclosures and they're Bates stamped 1 through 2450. These are -- it's hard to read the really small print, but these are Bates numbers 1973 to 1978, which the defendants did not mark as confidential. And in the same pleading that they

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filed this notice, the very next sentence after admitting these exhibits indicate that they hand-delivered confidential documents that were Bates stamp numbered 1 through 2. So in a previous lawsuit, the plain -- the defendants have turned over the same exact information that wasn't confidential that they are now claiming is confidential. there is no alternate channel for plaintiffs to get this information. They have attempted. They've asked the So
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Department of Administration through a public's record act. They've asked the Department of Corrections. They learned that
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the ACLU had brought a public records -- made a public records request for this same information. The problem arises is that the information that was provided to the two plaintiffs in this lawsuit as far as using a particular drug that is going to be unexpired domestically obtained pentobarbital is somewhat inconsistent with the information that the ACLU received that we attached as exhibits of the purchase order where it says it was purchased in 2011. That's where concern comes in as far as whether it's expired or not. But again, this all goes back to the First Amendment and that plaintiffs, as individual citizens, have a right to access this information. THE COURT: Let me ask you just a -- I'm trying to get In the ACLU information, was that
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the timing and dates here.

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March of 2011, that the information showed it was purchased in March of 2011? MS. KONRAD: month and the day -THE COURT: MS. KONRAD: THE COURT: MS. KONRAD: THE COURT: Okay. MS. KONRAD: THE COURT: Correct. Thank you. And you asked, they asked for Okay. -- so all it is is -That's right. -- 2011. Okay, it's just 2011, it doesn't say when.
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No, they -- the defendants removed the

that information as to what the month and day was and they didn't receive it. MS. KONRAD: under 13 -THE COURT: MS. KONRAD: Thank you. -- 757(C). Which, of course, the They were told that it was confidential
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plaintiffs here have argued this is not confidential information. And the defendants have also complained that
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plaintiffs have delayed in bringing this lawsuit. And I would just like to say, I mean, we've laid it out in our papers, but we have done everything that we can to try to obtain this information, and defendants keep preventing us from discovering it. And for us to come here now, we're not
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asking for a complete stay of execution.

We have asked for a

preliminary injunction to turn over this information and a preliminary injunction to prevent defendants from carrying out an execution using compromised drugs. At this point, our due process argument is that we have no ability to know whether we can even bring an Eighth Amendment claim, and we have an interest, the plaintiffs have an interest first -- under the First Amendment to have access to this information. THE COURT: MS. KONRAD: THE COURT: you. Thank you. You're welcome. All right. I have a lot of questions for
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I'm sure you're not surprised. MR. TODD: THE COURT: MR. TODD: THE COURT: MR. TODD: No. Okay. And we'll certainly try to answer them -Okay. -- as best we can.
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First, I would like to make a comment, though, our position is clear that they have not made the clear showing for the drastic, extraordinary remedy that they're seeking. What
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they haven't shown this Court is how they have any federal right to this information. Simply because they are going to be

executed doesn't give them a federal right to this -THE COURT: Okay.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 read it. here. isn't it?

MS. KONRAD: THE COURT:

-- this information. All right. If that's your position, then

you're going to have to distinguish Woodford. Why is that case different from this case? MR. TODD: with that. THE COURT: Well, that's a pretty significant case, Let me see. I'm sorry, Your Honor. I'm not familiar
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Isn't that the case they're relying on? MR. TODD: THE COURT: MR. TODD: THE COURT: MR. TODD: THE COURT:

No, they're relying on California -It's Woodford. -- First Amendment. Yes, that's right, it's the Woodford. Okay, I'm sorry. Okay, California First Amendment
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Coalition. MR. TODD: THE COURT: MR. TODD: THE COURT: applicable. MR. TODD: That case has nothing to do with the issue Right. Okay. That case -Tell me -- tell me why that's not

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It had nothing to do with discovery of drugs being used

for lethal injection. THE COURT: Okay. Well, let me tell you the way I
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It's a First Amendment issue, it was brought by the

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press, and it was brought by the press for access to the information for the public. Here it's different. Right. We are talking about

individuals, though, that have a First Amendment right, and the plaintiffs accurately set forth that prisoners still have First Amendment rights. So they have established they have a First Amendment right to information, which is critical, and certainly this information as to how they're going to be executed is critical. So the penological interest has to be established by the Department of Corrections. interest? Where is it derived? What is the penological It is not something that the
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Court can take as a matter of law in accordance with the California First Amendment Coalition case. MR. TODD: All that case stands for is the proposition
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that the public has a right to witness an execution -THE COURT: MR. TODD: THE COURT: Well, let me --- which -- which they do in Arizona. Okay. Let me stop you for a second, so There is a lengthy
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I'm going to interrupt everyone here.

footnote in the plaintiffs' petition, and I want -- I thought it was on page 13 but I will find it. Basically, what it says is that -- that everyone has a First Amendment -- here it is. It's Footnote 13, page 10.
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They're individual citizens, they have First Amendment rights,

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and prisoners do not, as a consequence of becoming a prisoner, they do not forego those rights. rights. They do not lose those

So prisoners are still persons entitled to all the

constitutional rights. So let's put them in -- in the position of the plaintiffs in the Woodford case. right? MR. TODD: They have the right to -- at least those Why don't they have the same
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individuals who are being executed have the right to be there and witness their execution. case stands for. THE COURT: They have the right to be there and -- you Of course they But that's the only thing this
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mean the prisoners have the right to be there. do. But what else? MR. TODD: be there.

And the case says the public has a right to

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It does not say, Your Honor, that the prisoners have

a right to know anything about the execution protocol: the drugs that are going to be used; the method which is going to be used. Now, in Arizona we have set that out in a public record showing exactly what our protocol is. court muster time and time again. It has passed
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We have -- since October of

2011, the first case that Your Honor had a chance to sit on, we have executed 11 persons. Not once has anyone been found that
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their execution was unconstitutional, that there was any

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problem with them suffering severe pain or needless pain -THE COURT: this case. MR. TODD: THE COURT: Okay. And this case, relying on the best case
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Let's stop for a second.

Let's deal with

that the plaintiffs have, is going to be one -- the Woodford case is one that you're going to have to distinguish, and so far you have not. You have not because the fact that that was

a public access case does not mean that these prisoners don't have a constitutional First Amendment right. So then their First Amendment right that they're asking for is certainly different, without a doubt. They're
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asking for information that Department of Corrections claims is confidential. But in applying the Woodford test, which is the
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First Amendment test, which is drawn from Supreme Court decisions, the Turner test, under prison settings, it's certainly very difficult, once the penological interest is established, for a prisoner to succeed. But that's where we need to start is: penological interest here? What's the

And where has -- where has your

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client established that in the papers? MR. TODD: Well, Your Honor, this is not necessarily a The government, and the -- and the cases

penological interest.

cited in our papers, numerous cases, that say the government has a right to not make available all governmental information
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to the public.

Our position -Well, that's not -- you know, you've

THE COURT:

turned over information under the Freedom of Information Act. I dare say that you're a lot better off arguing its penological interest, because then the plaintiffs are going to have to overcome that by a substantial basis. So what I'm asking for, and let's go back to the way I look at this case, which is: MR. TODD: THE COURT: The -What's the interest in the context of the
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What's the penological interest?

prison, and protecting the safety, just as they have discussed in the Woodford case? What is the protection here that the In order not to turn over

Department of Corrections needs?

this information, what do they fear? MR. TODD: Okay. I think Judge Kozinski, in his
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dissent from the rehearing en banc in Landrigan, sort of sets out the problem that the Department of Corrections faces by disclosing the sources of drugs, the ancillary people who assist in the executions, that those -- what happens, as with Lundbeck, the drugs are begun to be cut off. I believe we have filed this afternoon an additional exhibit that is another example of where the Texas, because all the drugs were from -- no manufacturers were cut off, so they couldn't use those drugs for their lethal injection executions, they went to a compound pharmacist. Once that compound
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pharmacist's name was revealed, he was harassed -THE COURT: going on that, then. to know. Okay. All right. So I know where you're

That's what I -- the first thing I wanted

Let's now let me present to you the very issue that

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was -- that the plaintiffs have relied on, and that's if that's the case, you did it once, why not now? MR. TODD: Well, I believe we did it -- my

recollection is we did it under discovery order in preparation for trial in the West case. THE COURT: Well, if that's the case, though, why
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wouldn't there -- I mean, it seems to be, how are you somehow protected because it was a discovery order? I can make it a

discovery order right now, and if I do, as a discovery order, I mean, this is a 1983 action, and certainly the plaintiffs are entitled to discovery. So you could have argued then: penological interest. Your Honor, we have a Or at We're
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We're not turning this over.

least you could have argued, We're turning it over. turning it over under seal, and you didn't.

It wasn't even
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turned over under seal, as we often see in cases where, let's say, trademark infringement cases, where there needs to be a protection against public knowledge. MR. TODD: different cases. Sure. And circumstances change with

But our point in this case, and in cases

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going forward, is that they have no federal right to this

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information. THE COURT: Okay. I under -- I've got you there. Let me just proffer this to --

What about this? MR. TODD: THE COURT: Sure.

-- to both counsel as a potential

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alternative which I have not decided on, and that is to order the Department of Corrections to turn over the information under seal to the plaintiffs, and turn it over to the Court under seal, as one would do -- let me give you a comparable situation. Let's assume we're in a criminal trial, many of which you've handled. In that criminal trial there's an informant.
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The defendant wants the name of that informant, or the press wants the name of that informant. The Court will turn over the
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name of that informant under seal to ensure that that individual is protected; oftentimes, will never turn it over to the public. So is your client willing to do that? Well, the client would be -- my

MR. TODD:

understanding is the client would be willing to turn it over to Your Honor under seal in camera, not to be disclosed to the defense. THE COURT: But I can't -- I can't do the litigation.
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I cannot, you know, decide as a matter of law that what -- then I become a part of the case. So occasionally I can do that, as
15:40:49

everybody knows, in privileged situations, where I have to make

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a determination as to whether or not a privilege applies. that's not something I can do or nor am I willing to do. You moved things a step forward by getting -- by providing the affidavit of Director Ryan that this has not

But

expired, but they're entitled to the information as to why that hasn't been expired. If I had known I was going to get that

15:41:15

affidavit, I would have asked you to be here, and then they could have asked him some questions about that and I would have allowed them. So that is the source of the information. Can you give us -15:41:29

So can you help us out on that? MR. TODD: on the boxes.

I can tell you the source of information is

Just as -- just as in the photograph that you

have before you. THE COURT: Okay. So it's on the boxes itself. It's
15:41:43

not as if they had to call the company -MR. TODD: THE COURT: MR. TODD: THE COURT: Right. -- to determine -Right. So -- but --

So then if that's the case, then under

15:41:54

seal, why can't you turn over the box -- box information to the plaintiffs? Just like you did before.

And this is -- you have mentioned that you did it as -- as a consequence of discovery and the Court ordered discovery. Here we are in a TRO and we are facing a short And so if this were a trial, certainly I
15:42:13

deadline for trial.

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would have -- I would require the information be turned over, and I could do so in managing any 1983 action. So is your client willing to turn it over to the plaintiffs? MR. TODD: THE COURT: MR. TODD: THE COURT: MR. TODD: I would -Under seal. I would have to verify that with -Okay. -- with the client. But our concern -15:42:46 15:42:30

because this is just one case. line.

There are other cases down the

Our position is that if we did so, we would be doing it

over our objection, and we would feel that we would -- would need to pursue that -THE COURT: MR. TODD: THE COURT: Well --- in some way. -- let's assume -- and this is just as a There's gotta be a reason why your
15:43:06

matter -- a hypothetical.

client, the Department of Corrections, does not want to turn over this information now when they did before, and inasmuch as I'd like to accept your position that you did it before, he did it before, or they did it before because it was a discovery order, I can't accept that. reason. Perhaps it is identifying who the company is, and that seems to be where you're going. But the company was identified
15:43:40 15:43:22

So there's gotta be another

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before, and there -- there wasn't a problem that time. It may be that the company now doesn't want to be identified, I am speculating on this, but I -- that's the only thing I can think of is they don't want to be identified, perhaps because, if it's the Akorn company, they said they would comply with -- or it would be their position that they weren't going to provide this drug to any -- for the purpose of any execution. So there has to be, there has to be a reason why now, other than, Gee, we turned it over for discovery purposes before. MR. TODD: I think the primary reason is set forth in
15:44:23 15:43:58

Judge Kozinski's dissent and what has transpired since then. What happened in England, what has happened to all the FDA-approved drug manufacturers in the U.S. refusing to provide drugs for lethal injection, and the harassment element on people who provide ancillary services for lethal injection. THE COURT: Okay. So then assuming that I find that
15:44:39

to be true, and let me -- let me tell you why I offer this as a hypothetical possibility. I noted in the Woodford decision
15:45:09

that the District Court Judge Walker, what he did was he was concerned about the exposure of actual persons, so he suggested they wear masks, that they be covered up. And the Ninth Circuit took that as a very -- an excellent balance of the First Amendment right and the
15:45:36

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protection of these individuals, which the Ninth Circuit recognized and I recognize as very important. that it necessarily applies to a company. different -- that's a different issue. company is. What can I say? I'm not sure

That's a

I don't know what the

15:45:57

I do recognize, though, that there may be an issue about the -- any company not providing the drugs again, and that's a public interest that is important. balancing under the First Amendment. But is it not analogous that the company would be protected if the information was provided to the plaintiffs so that the plaintiffs would be required not to disclose any of this information to the public, so that the protection of the company would be maintained? Now, that's in this case, I don't
15:46:44 15:46:13

So it's always a

know what will happen in the future, but essentially it's analogous to what Judge Walker did and what the Ninth Circuit adopted, which is masking. MR. TODD: I certainly would discuss that with our

clients and get an answer back as soon as possible to the Court. THE COURT: All right. MR. TODD: Okay. Thank you.
15:47:07

Let me hear from the plaintiffs. And one other point. You did have a

question concerning -THE COURT: Yes.

15:47:13

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 months? statute.

MR. TODD:

-- the statute, the confidentiality

THE COURT: MR. TODD:

Yes. And as we pointed out in our papers, the

15:47:22

general definition statute in Arizona, A.R.S. 1-215(8), defines "person" as companies and so forth. THE COURT: THE CLERK: Thank you. Can everybody on the phone please make We're getting a lot of talking

sure you're muted on your end? on our end in the courtroom. MS. KONRAD: about the expiration.

15:47:46

Judge Silver, I have an answer for you From what we've been able to do some

quick research, Akorn has an expiration date of 24 months. Lundbeck might be 36. And we believe any drug purchased from
15:48:05

Lundbeck before July of 2011 would expire either this month or potentially in November. THE COURT: 36 months? MS. KONRAD: THE COURT: May be. Okay. That would then -- then we would So if they had purchased it But I don't think that -Say that again? You said 36

I'm sorry.

15:48:20

still be within the 36 months.

prior to the time that Lundberg said -Is that Lundberg? MS. KONRAD: THE COURT: No.

Lundbeck. Lundbeck.
15:48:37

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-- said that they would not -- they were not going to provide it to any correctional institution for lethal injection, we'd still be okay. But if it was 24 months, then

we're at -- we're at an issue here, because it depends upon when they received it. Now, if they -- if they ordered it before that time but they received it afterwards, it would still be within the 24 months, right? MS. KONRAD: Possibly. I mean, again, we're talking
15:49:06 15:48:53

about unknowns for a date, a date that should not be considered confidential under the statute, and I think that's the critical thing to keep in mind in this lawsuit. Judge Silver, you propose potentially filing this information under seal. Plaintiffs first object to that in the

sense that this information, the lot number's expiration date, the National Drug Code number, those are not protected as confidential under the statute, and that cannot trump the First Amendment rights of plaintiffs. The manufacturers and distributors -THE COURT: Well, we're talking about the plaintiffs;

15:49:24

15:49:45

we're not talking about the public. MS. KONRAD: THE COURT: Right, but the -This is a different case. These are

plaintiffs' First Amendment rights.

I'm looking at and I was

15:49:57

persuaded, because I wasn't quite sure whether Woodford really

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applied, but you persuaded me in Footnote 13 that certainly, this is a plaintiffs' case, right? to access. MS. KONRAD: Right. And but there are -- there are
15:50:13

It's not the public's right

two individual plaintiffs or individual citizens as members of the public as well. THE COURT: That's right. But always, when you have

an individual as opposed to a public right to know, I mean, they're not going to distribute it to the public. They're not
15:50:32

acting on behalf of the public; they are acting on behalf of themselves. That is everything I've read in your papers is

that they are concerned about their execution, the efficacy of that execution, not about distributing this information to other inmates on death row, not about distributing this information to the public, right? MS. KONRAD: yes. Well, that's the due process argument, But it's also a general First
15:50:49

That's one part of it.

Amendment right to have access to this information. THE COURT: though? No, they have access for what purpose,
15:51:02

We have to balance what they want it for versus the

potential harm to the State, isn't that right? MS. KONRAD: If you apply the test that -- that

Woodford applied, then yes. We have argued that the test in Press Enterprise should be applied because Press Enterprise involved a statute
15:51:20

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and here we're dealing with a statute.

The test that they

applied in Woodford was from Turner, which was a prison regulation. Here we're not dealing with a prison regulation;

we're dealing with a confidentiality statute in Arizona. Now, along those lines, when we're talking about balancing, if I agree that we are talking about balancing the interests, the Department of Corrections doesn't have an interest in protecting the identity of a corporation. corporation -THE COURT: dissent by Kozinski? What about the informa -- what about the Isn't that a pretty strong argument in And isn't the history
15:52:00 15:51:43

If the

favor of the Department of Corrections? actually accurate?

They haven't been able to get this drug.

When I had the Landrigan case it was Hospira, and they weren't going to produce that drug any more and so the Department of Corrections had to go outside the United States, and we know -all know what happened there. So they have been -- they have been chasing a moving target, and they have an obligation, whether you like it or the public likes it or not, to ensure that these executions take place. And you agree with me, that's a public -- a public
15:52:42 15:52:25

interest they have? MS. KONRAD: I would add that they have an obligation

to ensure executions occur in a humane and -THE COURT: Well, of course. But do you recognize
15:53:01

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they haven't -- it's a public interest.

They have a public And when

interest to ensure that the law is complied with.

somebody is found guilty and sentenced to the death penalty, then they have to carry that out, whether they like it or not, or anyone -MS. KONRAD: THE COURT: Okay. Correct. -- else does. So then we
15:53:20

So we have that public interest.

have a -- we have a balancing, right?

Certainly, your clients I'm persuaded they

15:53:31

have also a very strong public interest. have a First Amendment right. behalf of the public, are they? MS. KONRAD: citizens, correct.

But they're not acting here on

They're acting on -- as individual

And I guess what the argument boiled down

15:53:48

to is that the Department of Corrections, while they have an interest in carrying out humane executions, they don't have an interest in what happens in the free market. If a company is supplying drugs for an execution, then people decide to, you know, picket that company or, you know, exercise their First Amendment rights to say why that's wrong, or if the company chooses, like Lundbeck did, not because of harassment, not because of anything of that nature but because it's a medical company, and it announced that it was not going to participate in the killing of an individual, that their goal as part of the health care system is to provide care and

15:54:10

15:54:29

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treatment, and that's a company's free right to do that. Along those lines, I just -- the defendants indicated they just filed an exhibit that's ECF 21 when we got in here, and it's a -- the plaintiffs would object to relevance. It
15:54:52

appears to be a letter in Texas from an individual pharmacist, saying that he has had some harassment based on finding out that he was involved or supplying some drugs. This has nothing to do with the lawsuit at hand. is an individual pharmacist. that companies aren't people. be it. And the middle District of Florida has recently in a case, Ferguson, 12-CV-1036, ECF 51, issued an order requiring the Department of Corrections in Florida to turn over this same exact information about companies and manufacturers. So with that, if you don't have any further questions, I would just ask that you enter the injunction. THE COURT: MS. KONRAD: THE COURT: All right. think, today. (Proceedings concluded at 3:55 p.m.) Okay. Thank you. Thank you. Anything else? I will have a ruling, I This

You know, again, we're arguing If you see it otherwise, then so

15:55:14

15:55:36

15:55:47

We are adjourned.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s/Gary Moll 2013. DATED at Phoenix, Arizona, this 4th day of October, I, GARY MOLL, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. C E R T I F I C A T E