                 United States Court of Appeals
                            For the Eighth Circuit
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                                No. 16-3072
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                    In re: Missouri Department of Corrections

                             lllllllllllllllllllllPetitioner
                                    ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                             Submitted: July 7, 2016
                             Filed: September 2, 2016
                                  [Unpublished]
                                  ____________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                          ____________

PER CURIAM.

      The Missouri Department of Corrections (“MDOC”) filed petitions for writs
of mandamus prohibiting the district court1 from enforcing orders requiring MDOC
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.



      1
       The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
       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.

       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.

        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

      2
        Before the district court, MDOC also argued that Missouri Revised Statute
§ 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).

       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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