                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3072
                        ___________________________

                    In re: Missouri Department of Corrections

                             lllllllllllllllllllllPetitioner
                                    ____________

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

                           Submitted: October 3, 2016
                            Filed: October 13, 2016
                                ____________

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

PER CURIAM.

       The Missouri Department of Corrections (“MDOC”) has filed two petitions for
writs of mandamus prohibiting the district court from enforcing discovery orders.
The first order requires MDOC to produce a detailed privilege log, and the second
order requires MDOC to reveal information regarding its use of pentobarbital in
executions, including the identity of its anonymous supplier. The anonymous
supplier has moved to intervene under the pseudonym M7 and has filed a motion for
leave to file a petition of its own. For the reasons stated below, we grant both of
MDOC’s petitions, and we deny as moot M7’s motion for leave to file a petition.
I. Background

       Richard Jordan and Ricky Chase (“the inmates”) are Mississippi death-row
inmates whom 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
identity of MDOC’s supplier 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. Lombardi 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 that the
inmates’ subpoena represented an undue burden under FRCP 45(d)(3)(A)(iv).
MDOC also raised other arguments based on sovereign immunity and the state secrets
privilege.

       The district court held a hearing on MDOC’s motion to quash. During the
hearing, the district court questioned the reliability of Lombardi’s dire predictions,
noting that there seemed to be no “effort to reach out to M7” and that “Lombardi
could have said, I called up the pharmacy, I called up M7, and M7 if it’s ordered in
this federal case, said they’re never, ever, ever going to sell again.” After considering
MDOC’s arguments, the district court held that Lombardi’s affidavit was “insufficient
to establish that Missouri’s supplier will no longer supply pentobarbital to Missouri

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if identified to Respondents” because Lombardi’s statement was “a bare, hearsay
assertion unsupported by record evidence.” As a result, the district court rejected
MDOC’s arguments, denied MDOC’s motion to quash the inmates’ subpoena, and
ordered MDOC to produce the majority of information the inmates sought as well as
a detailed privilege log.

       MDOC then filed in this court petitions for writs of mandamus to prevent the
enforcement of these orders. Along with these petitions, MDOC submitted a
supplemental affidavit by Lombardi. In this affidavit, Lombardi acknowledged that
“the district court questioned the sufficiency of my prior statements regarding this
confidentiality.” He then declared, “To be clear, MDOC’s supplier(s) has advised
that if the supplier’s identity is disclosed the supplier will no longer supply lethal
chemicals to Missouri for use in executions and will not supply lethal chemicals to
any other state.” Lombardi did not specify when the supplier made this statement or
whether MDOC had contacted the supplier regarding this specific litigation.

       Thus, in our original opinion, we held that this affidavit remained inherently
speculative. As a result, we rejected MDOC’s claims that the information sought was
irrelevant to the inmates’ claims, that disclosure would result in an undue burden on
MDOC, and that the subpoena violated Missouri’s sovereign immunity. Furthermore,
we noted that MDOC had failed to explain why any alternative means of relief, such
as a protective order, would be inadequate. Therefore, we denied MDOC’s petitions
for writs of mandamus.

       MDOC then filed a petition for rehearing in which it reasserted its previous
arguments and added a new argument explaining why it had no adequate alternative
means of relief. In addition, M7 moved to intervene and proceed anonymously. M7
submitted a declaration which confirmed the suspicions of both the district court and
this court that MDOC had not contacted M7 at any point during the litigation.
Instead, M7 averred that MDOC had contacted M7 only after we originally denied

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MDOC’s petitions. Nevertheless, M7 confirmed that, “[i]f disclosure of M7’s
identity is required, M7 will not supply lethal chemicals to the state of Mississippi.
In fact, M7 will no longer supply lethal chemicals at all.”

       In light of this new information, we vacated the original panel opinion, granted
MDOC’s petition for rehearing, invited M7 to submit evidence, and allowed the
inmates to respond. M7 also filed a motion for leave to file its own petition for a writ
of mandamus, arguing that disclosure would result in an undue burden on M7 and a
violation of M7’s First Amendment rights.

II. Discussion

       Writs of mandamus are “useful ‘safety valves’ for promptly correcting serious
errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009) (quoting Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994)). Thus, although
discovery orders are not ordinarily appealable, “mandamus may issue in extraordinary
circumstances to forbid discovery of irrelevant information, whether or not it is
privileged, where discovery would be oppressive and interfere with important state
interests.” In re Lombardi, 741 F.3d 888, 895 (8th Cir. 2014) (en banc). 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.” Cheney v. U.S. Dist. Court for D.C.,
542 U.S. 367, 380-81 (2004). “[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 first address whether MDOC’s entitlement to the writ is clear and
indisputable. On this point, MDOC makes three arguments: (1) the information
sought by the inmates is not relevant to their Eighth Amendment claims, (2) the
disclosure would result in an undue burden on MDOC, and (3) the subpoena violates

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Missouri’s sovereign immunity. Each of these arguments represents an independently
sufficient ground for holding that MDOC is entitled to the writ.

       First, MDOC argues that the unique circumstances of this case will render the
identity of MDOC’s supplier irrelevant to the inmates’ claim. In order to succeed on
their Eighth Amendment claim, the inmates must identify an “available alternative
method of execution” that Mississippi could use. See Glossip v. Gross, 576 U.S. ---,
135 S. Ct. 2726, 2737 (2015). As M7 now has confirmed, M7 will cease to provide
pentobarbital to anyone, including Mississippi, once its identity is disclosed.
Therefore, according to MDOC, disclosure of M7’s identity will not help the inmates
establish the existence of an available alternative method of execution.

       The inmates respond that the information remains relevant because the
availability of pentobarbital is “at issue in the underlying case.” The inmates
distinguish this case from In re Lombardi, where we granted a writ, by arguing that
the complaint in that case “failed to propose an alternative method of execution.”
Indeed, in In re Lombardi, we granted a writ to MDOC because the identity of its
lethal chemicals supplier was “not relevant to any claim that should survive a motion
to dismiss.” In re Lombardi, 741 F.3d at 895. The inmates point out that their claim
alleged an available alternative and has survived a motion to dismiss.

       However, this argument does not explain how M7’s identity will remain
relevant once M7 indisputably refuses to make pentobarbital available to anyone.
Although the requested identity information in In re Lombardi may have been
irrelevant because the claim did not allege an available alternative, we did not draw
a distinction between claims that survive a motion to dismiss and those that do not.
Rather, we held simply that mandamus may issue to prevent discovery of “irrelevant
information.” Id. The inmates’ allegations alone do not establish relevancy of
information that is not “of consequence in determining the action.” Fed. R. Evid.
401. Therefore, because M7 would not supply pentobarbital to Mississippi once its

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identity is disclosed, we conclude that M7’s identity has no relevance to the inmates’
Eighth Amendment claim.

         Second, even if M7’s identity had any relevance to the inmates’ claim, M7’s
declaration also establishes that the disclosure of M7’s identity will result in an undue
burden on MDOC. FRCP 45(d)(3)(A)(iv) 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)). A state
has an interest in “exercising its sovereign power to enforce the criminal law.” In re
Blodgett, 502 U.S. 236, 239 (1992). As M7’s declaration demonstrates, disclosure
of M7’s identity will certainly harm this interest by preventing MDOC from acquiring
pentobarbital for executions from M7. Without M7, Lombardi states that MDOC
“would not be able to obtain the lethal chemicals necessary to carry out its lawful
executions.” Meanwhile, the inmates have no need for M7’s identity because it has
little, if any, relevance to their Eighth Amendment claim.

       In response, the inmates do not address the harm posed by MDOC losing its
pentobarbital supplier. Rather, they attempt to show that MDOC will be able to carry
out death sentences even without maintaining M7’s secrecy. Specifically, they point
to statements by pharmaceutical manufacturers to show that suppliers are “not
cowering in the wake of capital punishment abolitionists.” But even if M7’s fears are
unfounded, that does not change the fact that M7 has already declared a clear
intention to cease supplying if M7’s identity is disclosed. Thus, we conclude that the
harm to MDOC clearly outweighs the need of the inmates, and disclosure would
represent an undue burden on MDOC. Because we hold that MDOC is clearly
entitled to a writ on the grounds of relevancy and undue burden, we do not address
MDOC’s sovereign immunity argument.

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      Next, we address whether MDOC has any other adequate means of relief.
MDOC contends that we have previously granted a writ in similar circumstances.
Indeed, in In re Lombardi, we granted a writ to prevent disclosure of the lethal
chemical supplier’s identity instead of requiring a protective order. 741 F.3d at 897.
MDOC also contends that the district court cannot prevent the inmates from
responding to discovery requests from the Mississippi Department of Corrections
(“MS-DOC”) and cannot limit further disclosure by MS-DOC.

       The inmates respond that the district court can, in fact, include “a provision
requiring third parties to agree to be bound by the terms of a protective order as a
condition precedent to receiving documents produced under such an order.” The
inmates cite protective-order clauses directed at individuals retained by lawyers or
parties to provide assistance or testimony. See Karr v. Oil & Gas Transfer L.L.C.,
No. 1:16-CV-00053, 2016 WL 3621089, at *1 (D.N.D. June 28, 2016); Jochims v.
Isuzu Motors, Ltd., 145 F.R.D. 499, 504-05 (S.D. Iowa 1992). However, even
assuming that the district court can issue such an order directed at MS-DOC, the
inmates fail to distinguish this case from In re Lombardi. There, we granted a writ
based on Lombardi’s assertion that “it is likely that active investigation of the
physician, pharmacy, and laboratory will lead to further disclosure of the identities.”
741 F.3d at 894. The inmates do not offer any assurances that they will be able to
investigate the supplier any more subtly than the inmates in In re Lombardi.

      Moreover, M7 has not indicated that M7 would continue to supply
pentobarbital so long as the district court issues a protective order. Rather, M7 has
alleged that M7 will cease to supply pentobarbital “if disclosure of M7’s identity is
required.” In light of this risk, as in In re Lombardi, we must conclude that MDOC
“has no other adequate means to attain the relief [MDOC] desires.” Id. at 895.

      Lastly, we address whether issuance of the writ is appropriate under the
circumstances. The inmates argue that the doctrine of “unclean hands” bars MDOC’s

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request for mandamus if the request is designed to conceal M7’s violation of property
and contract rights of others. Specifically, the inmates contend that “Akorn is the
only approved manufacturer of pentobarbital” and that M7 may be “selling Akorn’s
licensed product contrary to the manufacturer’s contract rights.” The only legal
authority that the inmates cite is a 1945 Supreme Court case affirming the dismissal
of a patent infringement action because the plaintiff acted in “bad faith relative to the
matter in which he seeks relief.” Precision Instrument Mfg. Co. v. Automotive Mach.
Co., 324 U.S. 806, 814 (1945). There, it was “clear that [the plaintiff] knew and
suppressed facts that, at the very least, should have been brought in some way to the
attention of the Patent Office.” Id. at 818. Here, it is not “clear” that MDOC or M7
are requesting writs in bad faith. The inmates contend that MDOC may have
purchased manufactured pentobarbital, but we do not find this contention sufficient
to establish that MDOC has unclean hands.1 Therefore, we conclude that mandamus
relief is appropriate.

III. Conclusion

       Because MDOC is clearly entitled to the writ and has no adequate alternative
means of relief and because it is appropriate to issue the writ, we grant both of
MDOC’s petitions for writs of mandamus. Because this would provide the precise
relief sought by M7, we deny as moot M7’s motion for leave to file a petition for a
writ.
                      ______________________________




      1
        We grant the inmates’ motion to file a portion of the district court hearing
transcript under seal. However, we do not agree that the statements contained within
the transcript prove that MDOC is requesting the writs in bad faith.

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