     Case: 14-30198      Document: 00512576359         Page: 1    Date Filed: 03/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                            March 27, 2014
                                      No. 14-30198
                                                                             Lyle W. Cayce
                                                                                  Clerk
In re: JAMES M. LEBLANC, Secretary, Louisiana Department of Public
Safety and Corrections; BURL CAIN, WARDEN, LOUISIANA STATE
PENITENTIARY; ANGELA NORWOOD, Warden, Death Row; LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

                                                 Petitioners



                          Petition for a Writ of Mandamus
                         to the Middle District of Louisiana
                               USDC No. 3:12-CV-796


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioners, Louisiana corrections officials James M. LeBlanc, Burl Cain,
and Angela Norwood, and the Louisiana Department of Public Safety and
Corrections, seek a writ of mandamus from this Court to vacate the district
court’s discovery order. Petitioners are defendants in a civil action brought
against them under 42 U.S.C. § 1983 by Christopher Sepulvado, a Louisiana
death-row inmate, along with other Louisiana death-row inmates not parties
to this writ proceeding (together, “Sepulvado” or “plaintiffs”), who allege
substantial constitutional violations in the manner by which the petitioners




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                               No. 14-30198
plan to carry out their function of executing death-row inmates and seek
declarative and injunctive relief therefrom.
      In the course of discovery, with respect to his own execution, Sepulvado
submitted requests for the production of a number of documents pursuant to
Federal Rules of Civil Procedure 26 and 34, including a written protocol
describing the chemical makeup of the lethal drugs and the method which the
petitioners will use to execute him, together with the identity of the drugs’
manufacturers and sources; the entities involved in supplying and testing
those lethal chemicals; and the healthcare professionals who will be personally
and directly involved in the process of carrying out the execution. (Dkt. Nos.
143, 153.)   When presented with the request for these documents and
materials, petitioners objected, claiming that the information sought was
irrelevant to Sepulvado’s lawsuit. The petitioners, however, do not contend
that the information sought is privileged. The plaintiffs moved, pursuant to
Federal Rule of Civil Procedure 37, for an order compelling discovery. The
district court referred the matter to a magistrate judge for findings and
recommendations, and the magistrate judge recommended that the district
court order production of the data. The district court accepted the magistrate
judge’s recommendations and ordered the production of the information and
materials.   Seeking to limit distribution of the information, however, the
district court issued a protective order limiting the number of people associated
with Sepulvado who could examine the information with respect to the
individual healthcare providers’ identities. Ultimately, after a series of
exchanges between the parties, the district court amended its order to provide
that the disclosure of all of the information described in the court’s March 5,
2014 order (Dkt. No. 143), “be limited to Plaintiff, Christopher Sepulvado,
Plaintiff’s counsel, Plaintiff’s experts, and Court personnel.” (Dkt. No. 153.)


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                                No. 14-30198
      Dissatisfied with the district court’s ruling, petitioners filed a petition
for a writ of mandamus under 28 U.S.C. § 1651(a) requesting that this Court
vacate the district court’s order granting plaintiffs’ motion to compel discovery.
In an order dated March 12, 2014, we temporarily stayed the district court’s
order to allow sufficient time to consider the State officials’ petition and
requested a response from the plaintiff, which Sepulvado provided.
      “The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976)
(citing Will v. United States, 389 U.S. 90, 95 (1967); Bankers Life & Cas. Co. v.
Holland, 346 U.S. 379, 382-85 (1953); Ex parte Fahey, 332 U.S. 258, 259
(1947)). As the Supreme Court observed, “the writ has traditionally been used
in the federal courts only to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is its
duty to do so.” Id. (citing Will, 389 U.S. at 95) (internal quotation marks
omitted). And, while courts “have not limited the use of mandamus by an
unduly narrow and technical understanding of what constitutes a matter of
‘jurisdiction,’ the fact still remains that ‘only exceptional circumstances
amounting to a judicial “usurpation of power” will justify the invocation of this
extraordinary remedy.’”      Id. (citation omitted). This is a “drastic and
extraordinary” remedy “reserved for really extraordinary causes.” Cheney v.
U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey,
332 U.S. at 259-60).
      “As the writ is one of the most potent weapons in the judicial arsenal,
three conditions must be satisfied before it may issue. First, the party seeking
issuance of the writ must have no other adequate means to attain the relief he
desires—a condition designed to ensure that the writ will not be used as a
substitute for the regular appeals process. Second, the petitioner must satisfy
the burden of showing that his right to issuance of the writ is clear and

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                               No. 14-30198
indisputable.” Cheney, 542 U.S. at 380-81 (citations, alterations, and internal
quotation marks omitted). Thus, a petitioner must show “not only that the
district court erred, but that it clearly and indisputably erred[.]” Occidental
Petrol. Corp., 217 F.3d 293, 295 (5th Cir. 2000). “Third, even if 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.”
Cheney, 542 U.S. at 380-81 (citations, alterations, and internal quotation
marks omitted). In general, “if a matter is within the district court’s discretion,
the litigant’s right to a particular result cannot be ‘clear and indisputable.’”
Kmart Corp. v. Aronds, 123 F.3d 297, 300-01 (5th Cir. 1997). For that reason,
interlocutory review of “ordinary discovery orders” is generally “unavailable,
through mandamus or otherwise.” Cheney, 542 U.S. at 381; see In re United
States, 878 F.2d 153, 158 (5th Cir. 1989) (noting that “generally discovery and
similar pretrial orders, even erroneous ones, are not reviewable on
mandamus”). Cf. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110 (2009)
(citing view that “almost all interlocutory appeals from discovery orders would
end in affirmance” because “the district court possesses discretion, and review
is deferential”) (quoting Reise v. Bd. of Regents of Univ. of Wis. Sys., 957 F.2d
293, 295 (7th Cir. 1992)).
      Considering the framework of these factors, the petitioners have not
shown that they are clearly and indisputably entitled to the extraordinary
remedy of a writ of mandamus in this case. “The discovery provisions of the
Federal Rules of Civil Procedure allow the parties to develop fully and
crystalize concise factual issues for trial.      Properly used, they prevent
prejudicial surprises and conserve precious judicial energies.        The United
States Supreme Court has said that they are to be broadly and liberally
construed.” Burns v. Thiokol Chem. Corp., 483 F.2d 300, 304 (5th Cir. 1973)
(citing Hickman v. Taylor, 1947, 329 U.S. 495, 507 (1947), and Schlagenhauf

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                                No. 14-30198
v. Holder, 379 U.S. 104, 114-15 (1964)). “[D]iscovery matters are committed
almost exclusively to the sound discretion of the trial [j]udge.” Id. Federal
Rule of Civil Procedure 26(b) sets the scope of discovery broadly, allowing
parties to obtain discovery regarding “any nonprivileged matter that is
relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b). In general,
information is discoverable if it “appears reasonably calculated to lead to the
discovery of admissible evidence.” Id.; see, e.g., Coughlin v. Lee, 946 F.2d 1152,
1159 (5th Cir. 1991) (“Discoverable information is not limited to admissible
evidence.”). The district court may, for good cause, issue a protective order to
“protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” FED. R. CIV. P. 26(c). “[T]he burden is upon [the
party seeking the protective order] to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact as distinguished
from stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302,
306 (5th Cir. 1998) (citation omitted). District courts have broad discretion in
determining whether to grant a motion for a protective order. Harris v. Amoco
Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The trial court is in the best
position to weigh fairly the competing needs and interests of parties affected
by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “Because
the issue of relevancy in discovery matters is subject to such a broad standard,
a district court’s decision will rarely be overturned by a petition for
mandamus.” Kerr v. U.S. Dist. Court for N. Dist. of Cal., 511 F.2d 192, 197
(9th Cir. 1975), aff’d, 426 U.S. 394 (1976); see Cheney, 542 U.S. at 381
(interlocutory review of “ordinary discovery orders” is generally “unavailable,
through mandamus or otherwise”); In re United States, 878 F.2d at 158 (noting
that “generally discovery and similar pretrial orders, even erroneous ones, are
not reviewable on mandamus”).


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                                  No. 14-30198
       The petitioners have not shown that they are entitled to mandamus. The
petitioners received much of the relief they sought in their motion for a
protective order: the district court directed them to turn over the requested
information, but prohibited any party from receiving or sharing the
information other than Sepulvado, his counsel, his approved experts, and court
personnel. The petitioners have not shown that the district court clearly and
indisputably abused its discretion in ordering the limited discovery to a
narrowly circumscribed list of recipients. See Cheney, 542 U.S. at 380-81;
Occidental Petrol., 217 F.3d at 295 (before mandamus may issue, a petitioner
must show “not only that the district court erred, but that it clearly and
indisputably erred”). Cf. Wiwa v. Royal Dutch Petrol. Co., 392 F.3d 812, 817
(5th Cir. 2004) (explaining that we will affirm district court discovery orders
“unless they are arbitrary or clearly unreasonable”). 1 In the exercise of our
discretion, we are not satisfied that the writ is appropriate under the
circumstances.
       Accordingly, IT IS ORDERED that the petition for a writ of mandamus
is DENIED. IT IS FURTHER ORDERED that the temporary stay of the
district court’s order is LIFTED.




       1  Petitioners’ reliance on In re Lombardi, 741 F.3d 888 (8th Cir. 2014) (en banc), is
misplaced. The court in In re Lombardi issued the writ because it determined that the
plaintiffs failed to state a claim upon which relief could be granted, rendering any discovery
as to those claims irrelevant. See id. at 896. The petitioners here do not challenge
Sepulvado’s underlying lawsuit; they challenge only the district court’s discretionary
discovery order.
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