Pizzuto v. Tewalt
FOR PUBLICATION (2025)
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Rule of Law:
A federal court deciding a federal question is not bound by a state's execution secrecy statute and may compel discovery regarding execution drug origins and manufacturing unless the state can demonstrate, to a reasonable degree of certainty, that such disclosure would identify its supplier and thereby unduly burden its ability to carry out lawful executions.
Facts:
- Gerald Ross Pizzuto, Jr., an Idaho death-row inmate, filed a complaint under 42 U.S.C. § 1983 alleging that his execution by lethal injection would constitute cruel and unusual punishment in violation of the Eighth Amendment.
- Pizzuto alleged that Idaho had previously relied on unreliable drug sources for executions, increasing the risk of pain and suffering, and that his medical conditions, combined with pentobarbital, created a substantial risk of serious harm.
- In March 2022, the Idaho Legislature passed House Bill No. 658, amending state statutes to make the identities of any person or entity involved in supplying execution drugs confidential and not subject to disclosure or discovery.
- Idaho refused to answer several of Pizzuto's interrogatories and requests for admission concerning execution drug manufacturers, compounders, and sourcing, citing its execution secrecy statute.
- In late 2023, Idaho informed another death-row inmate, Thomas Creech, that it had secured pentobarbital for his execution, and intended to use it as part of the lethal injection protocol.
- Pizzuto then served new requests for admission and production specifically about the pentobarbital acquired for Creech's execution, seeking information such as the manufacturer (e.g., Akorn), whether the drugs were compounded, their geographic origin (domestic/foreign), source type (veterinary/hospital), and sale channel (wholesaler/pharmacy).
- Idaho again refused to answer several of these requests, objecting that disclosure created an undue burden and could lead to the identification of its execution chemical source.
- Idaho produced a purchase order and a Certificate of Analysis for the pentobarbital, but redacted the purchase date on the purchase order and the report date on the Certificate of Analysis.
Procedural Posture:
- Gerald Ross Pizzuto, Jr. filed an amended complaint in the U.S. District Court for the District of Idaho against Josh Tewalt and Tim Richardson (later Randy Valley) in their official capacities, asserting an Eighth Amendment claim under 42 U.S.C. § 1983.
- Pizzuto served multiple sets of discovery requests on the State of Idaho (Defendants), to which Defendants objected, citing Idaho's execution secrecy statute.
- Pizzuto moved to compel discovery responses from Defendants.
- In July 2023, the district court granted in part and denied in part Pizzuto's motion to compel, ruling that Idaho's secrecy statute did not create a federal evidentiary privilege but that information identifying a supplier "to a reasonable degree of certainty" would constitute an undue burden. It ordered responses to some interrogatories while denying others.
- After Idaho acquired pentobarbital for another inmate's execution, Pizzuto served additional requests for admission and production.
- Idaho again objected to several of these new requests, asserting an undue burden.
- Pizzuto filed a second motion to compel Defendants' responses to these new requests.
- In March 2024, the district court granted in part and denied in part Pizzuto's motions to compel, reiterating its "reasonable degree of certainty" standard for undue burden, and ordered Defendants to answer requests about the drugs' origin, manufacturing, and acquisition (including unredacted purchase/report dates and manufacturer identity) because Defendants failed to demonstrate how such disclosures would meet the undue burden standard.
- Defendants filed a timely interlocutory appeal of the district court's March 2024 order to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a federal district court abuse its discretion by ordering a state to disclose information about the origin, manufacturing, and acquisition of its lethal injection drugs when the state claims its secrecy statute and undue burden, but cannot show to a "reasonable degree of certainty" that such disclosure would identify its supplier?
Opinions:
Majority - Bennett, Circuit Judge
No, the district court did not abuse its discretion in ordering Idaho to disclose certain information about its execution drugs. The State failed to demonstrate, with a reasonable degree of certainty, how such disclosures would lead to the identification of its supplier and thereby impose an undue burden. The Ninth Circuit first established jurisdiction under the collateral order doctrine. While discovery orders are generally not immediately appealable, this case falls within a narrow exception because the potential harm of disclosing information that could imperil the State's execution protocol by identifying its drug supplier is effectively unreviewable on appeal from a final judgment. Unlike other discovery disclosures, if the supplier's identity is revealed, that disclosure cannot be undone. The State's interest in protecting the supplier's identity to ensure the continuity of its execution protocol is substantial and constitutes a significant public interest. Moreover, this type of issue is rarely invoked, limiting the 'institutional costs' of collateral review. On the merits, the court reviews the district court's discovery rulings for abuse of discretion. The district court did not abuse its discretion in finding Pizzuto's requests for admission relevant to his Eighth Amendment claim. Information regarding the drugs' acquisition date, geographic origin, and manufacturing type (compounded versus manufactured) may bear on the reliability of the drugs and the risk of pain. The Idaho secrecy statute does not create a federal evidentiary privilege that binds federal courts in federal question cases, and the Ninth Circuit declined to declare a new federal privilege for a state's execution drug supplier's identity, noting that such a privilege would invite states to 'dodge federal judicial review.' Regarding undue burden, the district court correctly applied the standard under Federal Rule of Civil Procedure 26(c). While recognizing Idaho's strong interest in enforcing its criminal laws, including the death penalty, the court found Defendants' arguments that the information 'could possibly' or 'might' lead to supplier identification were 'speculative and conclusory.' Defendants failed to explain, 'in concrete terms,' how the specific disclosures ordered (e.g., purchase dates, geographic origin, type of source, manufacturer identity like Akorn, report date on Certificate of Analysis) would 'actually lead' to the identification of their supplier. The burden is on the party seeking to limit discovery (Defendants) to 'show good cause' for shielding the information. Without additional, concrete evidence from Defendants, the district court's conclusion that the disclosures would not unduly burden them was not an abuse of discretion.
Analysis:
This case significantly clarifies the standard for compelling discovery related to state execution drug suppliers in federal Eighth Amendment challenges. It reinforces that state secrecy statutes do not create federal evidentiary privileges in federal question cases, preventing states from unilaterally circumventing federal judicial oversight. The ruling places a substantial burden on states to provide concrete, rather than speculative, evidence that specific discovery requests will, with a 'reasonable degree of certainty,' lead to the identification of their suppliers and thus create an undue burden. This decision will likely enable inmates to obtain more information relevant to challenging the constitutionality of lethal injection protocols, forcing states to detail how disclosure genuinely jeopardizes their ability to carry out executions.
