Sealed Court Document

SEP 5. A, IN THE UNITED STATES COURT OF APPEALS @st G4 FOR THE EIGHTH CIRCUIT 01? cod/?g: No. 16-3072 In re: Missouri Department of Corrections, Petitioner Richard Jordan and Ricky Chase, Respondents. On Petition for Writ of Mandamus to the United States District Court for the Western District of Missouri Jefferson City (2: 16-MC-09005) MOTION FOR LEAVE TO FILE TRANSCRIPT UNDER SEAL James W. Craig Emily M. Washington Roderick Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans LA 70119 (504) 620-2259 (504) 208?3133 (I) jim.craig@macarthurjusticeorg emily.washington@macarthurj ustice.org Attorneys for Respondents in :11: -. Appellate Case: 16-3072 Page: 1 Date Filed: 09/30/2016 Entry ID: 4454684 I. Ii. MOTION FOR LEAVE TO FILE TRANSCRIPT UNDER SEAL Richard Jordan and Ricky Chase, Respondents in the above-captioned mandamus proceeding, move this Court for leave to ?le a portion of the transcript of the hearing before District Judge Bough under seal. The transcript, attached to the paper copy of this motion, is designated ?Exhibit in Respondents? pleadings in opposition to the petitions for mandamus and rehearing ?led by the Missouri Department of Corrections and M7. In support of this motion, Respondents represent the following to the Court: 1. On July 1, 2016, the United States District Court for the Western District of Missouri conducted a hearing on motion to quash a subpoena duces tecum and notice of deposition served upon MO-DOC by Respondents. 2. A portion of the hearing was sealed with only MO-DOC and Respondents? attorneys present in the courtroom. 3. On September 20, 2016, the district court entered a Protective Order sealing the transcript of the in camera portion of the July 1 hearing. Doc. 38, Missouri Department of Corrections v. Jordan et al., case no. 2:16-mc-09005. 4. Under the terms of the Protective Order, the transcript of the in camera portion of the transcript can only be ?led in the Eighth Circuit Court of Appeals under seal. Appellate Case: 16-3072 Page: 2 Date Filed: 09/30/2016 Entry ID: 4454684 5. In addition to the sealed transcript, Respondents submit a brief Argument Regarding Matters in Sealed Transcript, setting forth the relevance of the sealed transcript to the issues before this Court. 6. Respondents believe that this Motion may be made publically available on PACER. See Local Rule 25A(g). WHEREFORE, PREMISES CONSIDERED, Respondents request that this Court grant leave to ?le the sealed portion of the July 1 transcript and the Argument Regarding Matters in Sealed Transcript under seal. Respectfully submitted, James W. Craig James W. Craig Emily M. Washington Roderick Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans LA 70119 (504) 620-2259 (504) 208-3133 jim.craig@macarthurjustice.org Attorneys for Respondents Appellate Case: 16-3072 Page: 3 Date Filed: 09/30/2016 Entry ID: 4454684 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of this Motion on all parties by electronic mail. This pleading is not ?led via the Electronic Case Filing system of the United States Court of Appeals for the Eighth Circuit. This, the 30th day of September, 2016. James W. (?mfg Appellate Case: 16-3072 Page: 4 Date Filed: 09/30/2016 Entry ID: 4454684 FILED 35" 3 0 2036 IN THE UNITED STATES COURT or APPEALS MICHAEL GA FOR THE EIGHTH CIRCUIT CLERK OF mug? No. 16-3072 In re: Missouri Department of Corrections, Petitioner Richard Jordan and Ricky Chase, Respondents. On Petition for Writ of Mandamus to the United States District Court for the Western District of Missouri Jefferson City ARGUMENT REGARDING MATTERS IN SEALED TRANSCRIPT James W. Craig Emily M. Washington Roderick Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans LA 70119 (504) 620-2259 (504) 208-3133 jim.craig@macarthurjustice.org Attorneys for Respondents Appellate Case: 16-3072 Page: 1 Date Filed: 09/30/2016 Entry ID: 4454684 ARGUMENT REGARDING MATTERS IN SEALED TRANSCRIPT On July 1, 2016, the United States District Court for the Western District of Missouri conducted a hearing on motion to quash a subpoena duces tecum and notice of deposition served upon by Respondents. A portion of the hearing was sealed with only MO-DOC and Respondents? attorneys present in the courtroom. The sealed transcript is designated as ?Exhibit in the Respondents? oppositions to the motions ?led by the Missouri Department of Corrections and M7, anonymous drug vendor. During the in camera portion of the hearing, counsel for discussed matters set forth in the privilege log which had been submitted to the district court ex parte. Respondents? counsel did not have access to the ex parte privilege log. counsel focused the Court?s attention on Request No. 2 of the subpoena duces tecum under consideration in the district court. That request seeks production of ?All drug labels and package inserts for any drug purchased or obtained by the Department, from 2010 to the present, for use in lethal injection executions.?1 MO-DOC counsel stated: I?m primarily focused on request number 2 for documents about pentobarbital . . . if identi?ed whether or not there is a responsive document to that request, that answers the question of whether it is or is not manufactured or Exhibit 3 to Respondents? Opposition at 5. Appellate Case: 16-3072 Page: 2 Date Filed: 09/30/2016 Entry ID: 4454684 compounded pentobarbital because manufactured pentobarbital has that information, and compounded pentobarbital does not have a package insert. So by merely saying that there exists a document that proves it?s manufactured or proves that it?s compounded, that answers the question does Missouri use compounded or manufactured pentobarbital.2 Thereafter, the district court stated ?there are three responses that list No. 2.?3 Counsel for MO-DOC agreed.4 Thus, there is evidence that at some point after 2010, MO-DOC purchased manufactured pentobarbital for use in lethal injection executions. All parties agree that pentobarbital can be purchased in one of two forms: either compounded by a licensed pharmacy from the active pharmaceutical ingredients for the chemical; or manufactured by a pharmaceutical company under FDA?approved and monitored practices. Akom Pharmaceuticals is the sole licensed manufacturer of pentobarbital.5 Akom has instituted a policy restricting the sale of Nembutal to corrections departments for use in executions.6 The sale of manufactured pentobarbital by M7 or another vendor to MO-DOC would violate the property and contractual rights of Akom to determine how its 2 Exhibit 4-B at 8-See Exhibit (May 13, 2016 article) to Exhibit 15 (Declaration of Comptroller DiNapoli) to Respondent?s Opposition. 6 Exhibit to Exhibit 15 to Respondents? Opposition. Appellate Case: 16-3072 Page: 3 Date Filed: 09/30/2016 Entry ID: 4454684 product is used. For the reasons set forth in the Oppositions ?led by Respondents in the public record, mandamus should be denied if this Court, or the district court, ?nds that MO-DOC and M7?s attempt to safeguard the con?dentiality of the identity of lethal injection drug vendors would facilitate the Violation of the rights of Akorn and its shareholders. Appellate Case: 16-3072 Page:4 Respectfully submitted, As/James W. Craig James W. Craig Emily M. Washington Roderick Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans LA 70119 (504) 620-2259 (504) 208-3133 jim.craig@macarthurjustice.org Attorneys for Respondents Date Filed: 09/30/2016 Entry ID: 4454684 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of this Argument on all parties by electronic mail. This pleading is not ?led Via the Electronic Case Filing system of the United States Court of Appeals for the Eighth Circuit. This, the 30th day of September, 2016. James W. Craig Appellate Case: 16-3072 Page: 5 Date Filed: 09/30/2016 Entry ID: 4454684