                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                December 18, 2014 Session

 STEPHEN MICHAEL WEST ET AL. V. DERRICK D. SCHOFIELD ET AL.

           Appeal by Permission from the Court of Appeals, Middle Section
                        Chancery Court for Davidson County
                  No. 131627I    Claudia C. Bonnyman, Chancellor



                   No. M2014-00320-SC-R11-CV - Filed March 10, 2015



G ARY R. W ADE, J., concurring in the judgment only.

       I concur in the conclusion reached by my colleagues that the identities of the John Doe
defendants are not discoverable under Tennessee Rule of Civil Procedure 26.02(1). In my
view, however, the majority opinion contains dicta that unnecessarily addresses several issues
with far-reaching implications in death penalty litigation. Therefore, I must respectfully
concur in the result only.

                       I. Summary of Facts and Procedural History
        Thirty-six death row inmates (the “inmates”) in Tennessee have joined in a lawsuit
challenging the constitutionality of the new one-drug lethal injection protocol adopted by the
Department of Correction. The inmates have presented a facial challenge, which involves
the constitutionality of a statute as written, and as-applied challenges, which involve how a
statute “operates in practice against the particular litigant[s] and under the facts of the instant
case.” State v. Crank, No. E2012-01189-SC-R11-CD, 2015 WL 603158, at *7 n.5 (Tenn.
Feb. 13, 2015) (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013)); see
also 16 C.J.S. Constitutional Law § 187, at 274 (2005). During the discovery process, the
inmates filed a motion to compel the State to disclose the identities and locations of the
physicians, pharmacists, medical examiners, medical personnel, and executioners who are,
had been, or might be involved in the creation, production, or administration of the lethal
injection protocol. The trial court granted the motion to compel, ordering the State to provide
the information subject only to the terms of an agreed protective order. The Court of Appeals
affirmed. West v. Schofield, No. M2014-00320-COA-R9-CV, 2014 WL 4815957, at *1
(Tenn. Ct. App. Sept. 29, 2014). Because of the critical importance of this issue, this Court
granted review on the State’s interlocutory appeal.
                                    II. Standard of Review
         When there is a pretrial discovery dispute, the trial court is afforded discretionary
authority. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Absent an abuse
of that discretion, the appellate courts should not interfere with the orderly processes leading
to trial. “‘A court abuses its discretion [only] when it applies an incorrect legal standard or
its decision is illogical or unreasonable, is based on a clearly erroneous assessment of the
evidence, or utilizes reasoning that results in an injustice to the complaining party.’” State
v. Adams, 405 S.W.3d 641, 660 (Tenn. 2013) (quoting Wilson v. State, 367 S.W.3d 229, 235
(Tenn. 2012)).

                                     III. Analysis
      The general scope and limits of discovery are governed by Tennessee Rule of Civil
Procedure 26.02(1), which provides as follows:

       Parties may obtain discovery regarding any matter, not privileged, which is
       relevant to the subject matter involved in the pending action, whether it relates
       to the claim or defense of the party seeking discovery or to the claim or
       defense of any other party, including the . . . identity and location of persons
       having knowledge of any discoverable matter. It is not ground for objection
       that the information sought will be inadmissible at the trial if the information
       sought appears reasonably calculated to lead to the discovery of admissible
       evidence.

Although Rule 26.02(1) “reflect[s] a broad policy favoring discovery of all relevant,
non-privileged information,” Lee Med., Inc., 312 S.W.3d at 525, “[a]nalyzing whether a
discovery request is proper requires the balancing of numerous considerations,” which, in
addition to privilege and relevance, include “protection of privacy, property and secret
matters[,] and protection of parties or persons from annoyance, embarrassment, oppression,
or undue burden or expense,” Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 605 (Tenn.
Ct. App. 2004) (quoting Clark A. Nichols et al., Cyclopedia of Federal Procedure § 25.34 (3d
ed. 2001)).

        By the application of these principles, I can agree with the majority that the identities
of the John Doe defendants are not relevant to the inmates’ facial challenge to the
constitutionality of the lethal injection protocol. In this regard, I am able to concur that the
trial court applied an incorrect legal standard in the consideration of the motion to compel.
Insofar as the inmates have asserted as-applied challenges to the protocol, I would find that
even if the identities of the John Doe defendants were relevant, the protection of these
persons or entities from annoyance, embarrassment, or harassment sufficiently outweighs the
request by the inmates to have knowledge of their identities or their locations. In this regard,

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I would hold that the trial court exceeded its discretionary authority by compelling disclosure
of the requested information. This is particularly so because the State has offered to provide
the professional qualifications of the John Doe defendants and to make these individuals
available for screened depositions, thereby permitting the inmates to effectively
cross-examine the persons responsible for the creation, production, and administration of the
one-drug protocol.

       In my view, this ruling pretermits any consideration of whether the requested
information qualifies as privileged. A significant portion of the majority opinion, however,
addresses common law privilege and public policy concerns. This is simply not necessary.
Furthermore, I am unable to concur with the majority as to the justiciability of an as-applied
challenge in the death penalty context.

                                           A. Privilege
        Initially, I fully agree with the majority that “the trial court, by granting the [inmates’]
motion to compel, clearly concluded that the identities of the John Doe [d]efendants were not
privileged.” The majority also properly observes that “[t]he [inmates] have not sought the
identities of the John Doe [d]efendants pursuant to a request under the Public Records Act,”
and that “the instant lawsuit is not a petition for enforcement of the Public Records Act.” See
Tenn. Code Ann. §§ 10-7-101 to -702 (2012).1 However, the majority’s consideration of the
adoption of a common law privilege, which would preclude under any circumstances the
disclosure of the identities of individuals involved in the execution process, is a brush with
too broad a stroke.

       First, the majority neither cites nor considers prior opinions of this Court which would
provide general guidance in whether to adopt a common law privilege. See, e.g., Schneider
v. City of Jackson, 226 S.W.3d 332, 342-44 (Tenn. 2007) (explaining that the Court of
Appeals erred by recognizing a law enforcement privilege, in part because it “relied
exclusively upon federal court decisions and decisions of other state courts”); Quarles v.
Sutherland, 389 S.W.2d 249, 251 (Tenn. 1965) (declining to recognize a physician-patient
privilege in civil litigation despite acknowledging physicians’ ethical requirements to
preserve the privacy of their patients). Second, it does not appear that any other jurisdiction
has recognized an executioner-identity privilege as a matter of common law; while the
majority cites opinions from other states preventing the disclosure of executioners’ identities,


        1
         The relevant subsection of the Public Records Act states that “parts of the record identifying an
individual or entity as a person or entity who or that has been or may in the future be directly involved in the
process of executing a sentence of death shall be treated as confidential and shall not be open to public
inspection.” Id. § 10-7-504(h)(1) (emphasis added). In this instance, the identities of the John Doe
defendants have not been requested for “public inspection.”

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all of those rulings are based in statutory law. Finally, I cannot agree with the majority that
“[t]hese authorities make clear that, not only has our legislature declared the public policy
of Tennessee to favor the anonymity of those involved in carrying out capital punishment,
but there is neither a statutory nor a constitutional barrier to the adoption of a common law
privilege.”

       A privilege is “[a] special legal right, exemption, or immunity granted to a person or
class of persons” in certain limited circumstances. Black’s Law Dictionary 1316 (9th ed.
2009) (emphasis added).2 Thus, the standard for adopting a new common law privilege is
not whether there is a barrier to the privilege, but whether the privilege is necessary in light
of our public policy. See Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d
18, 22-23 (Tenn. 2007) (observing that the litigation privilege was adopted because of its
importance to “the public good” and “the integrity of our judicial system”). In light of our
ruling that the identities of the John Doe defendants are not discoverable under Tennessee
Rule of Civil Procedure 26.02(1), I do not see how the establishment of a new privilege
might be “necessary” in this context. Cf. Swift v. Campbell, 159 S.W.3d 565, 578 (Tenn.
Ct. App. 2004) (declining to recognize a law enforcement privilege in part because the
material in question was already protected by Tennessee Rule of Criminal Procedure 16).
Moreover, even if the Public Records Act were at issue in this case, I cannot agree that an
interpretation of that Act, as stated by a single member of our General Assembly, is
indicative of public policy on the question of privilege. See Crawford v. Buckner, 839
S.W.2d 754, 759 (Tenn. 1992) (citing the longstanding principle that “[t]he public policy of
Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules
of common law” (quoting Home Beneficial Ass’n v. White, 177 S.W.2d 545, 546 (Tenn.
1944)) (internal quotation marks omitted)); see also In re Baby, 447 S.W.3d 807, 822-37
(Tenn. 2014) (acknowledging that the legislative history of our surrogacy statute
“confirm[ed] the absence of any policy against traditional surrogacy” as determined by an
exhaustive review of the common law of contracts, the Tennessee Constitution, and
numerous statutes related to surrogacy, adoption, custody, parental rights, and artificial
insemination).

       In consequence, I depart from the language offered by my colleagues on the question
of common law privilege. See, e.g., PDK Labs. Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C.
Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (relying upon “the
cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is
necessary not to decide more”); Jordan v. Knox Cnty., 213 S.W.3d 751, 780 (Tenn. 2007)


        2
         Notably, although Black’s Law Dictionary lists a variety of specific privileges, there is no definition
of an “executioner-identity” privilege for discovery in civil litigation, as the State has urged this Court to
adopt. See id. at 1316-19.

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(recognizing that appellate judges should refrain from commenting sua sponte on matters of
public policy).

                                        B. Justiciability
        I am likewise unable to concur in the majority’s discussion as to when and how a
death row inmate may raise a justiciable challenge to the application of an execution
protocol. While the majority “question[s] whether the allegations of the [c]omplaint actually
are sufficient to constitute an as applied challenge to the [p]rotocol,” the opinion denies the
inmates “discovery of information as to claims that are merely speculative and do not present
a justiciable controversy.” Thus, it is not clear whether the majority believes that the inmates
have simply failed to raise any as-applied challenges, or that the inmates have raised as-
applied challenges that are non-justiciable because they “hypothetically may be applied on
some uncertain date in the future by currently unidentifiable persons.” In my view, the
analysis of the majority injects confusion into the adjudication of an as-applied challenge in
death penalty litigation.

        While the majority refers to justiciability in general, there are several varieties of the
doctrine. See Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d
196, 203 (Tenn. 2009) (listing the justiciability doctrines recognized by Tennessee courts to
include the prohibition against advisory opinions, standing, ripeness, mootness, the political
question doctrine, and the exhaustion of administrative remedies). Based on the numerous
references to the inmates’ claims as “hypothetical,” “in the future,” and “speculative,” the
majority appears to be applying the doctrine of ripeness. See, e.g., B & B Enters. of Wilson
Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010) (“The central concern of
the ripeness doctrine is whether the case involves uncertain or contingent future events that
may or may not occur as anticipated or, indeed, may not occur at all.”). This is an important
clarification because the doctrine of ripeness involves additional considerations not
mentioned by the majority. As our Court of Appeals has explained,

       [Q]uestions of ripeness involve a two-step analysis: (1) the fitness of the issue
       for judicial determination[,] and (2) the hardship to the parties of withholding
       court consideration. In most situations where ripeness is an issue, “The courts
       will decline to act in cases where there is no need for the court to act or where
       the refusal to act will not prevent the parties from raising the issue at a more
       appropriate time.”

Consol. Waste Sys., LLC v. Metro. Gov’t of Nashville & Davidson Cnty., No.
M2002-02582-COA-R3-CV, 2005 WL 1541860, at *26 (Tenn. Ct. App. June 30, 2005)
(emphasis added) (citations omitted).



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       Because it rejects as premature the inmates’ attempt to challenge the lethal injection
protocol on an as-applied basis, the majority appears to create a procedural dilemma. By
describing the inmates’ claims as “hypothetical” because the protocol “may be applied on
some uncertain date in the future by currently unidentifiable persons,” the question left
unanswered by the majority is, if not ripe now, when? In my view, because some of the
inmates in this litigation currently have dates of execution set, their executions cannot be
described as occurring “on some uncertain date in the future.” As to those inmates whose
execution dates have been postponed during the pendency of this very litigation, the fact that
their execution dates have been rendered “uncertain” by order of this Court should not
preclude the consideration of their claims. Moreover, because the State has offered to
produce the professional qualifications of the John Doe defendants and to make them
available for screened depositions, it is apparent that they are not “currently unidentifiable.”

         In my view, any as-applied challenges raised by the inmates in this litigation are ripe
for adjudication. Moreover, deciding all of the claims at this time would further the interests
of judicial economy. For these reasons, I cannot join with my colleagues on the question of
justiciability.

                                        IV. Conclusion
        I agree that the identities of the John Doe defendants are not subject to discovery
under Tennessee Rule of Civil Procedure 26.02(1). Because, however, I am unable to concur
in the other portions of the majority opinion, I must respectfully concur in the result only.




                                                    _____________________________
                                                    GARY R. WADE, JUSTICE




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