The MacArthur Justice Center served a subpoena for documents and deposition testimony on the Missouri Department of Corrections (DOC) on May 31, 2016. The subpoena sought to obtain facts on Missouri’s use of pentobarbital in executions. This included identification of the supplier of this drug, and documents or testimony explaining why Missouri chose to replace their old three-drug execution protocol (which was very similar to Mississippi’s current one) with the pentobarbital-only method.
The Missouri DOC claimed that an execution secrecy statute protected this information from disclosure. We argued that a state statute cannot frustrate a Federal civil rights plaintiff’s need for information to prove her case. We also stated that a protective order could be entered to require all use of Missouri’s information to be filed under seal (non-publicly) in our Mississippi case. Federal District Court Judge Baugh agreed with us and ordered the Missouri DOC to produce the documents.
The Missouri DOC appealed. At first, the Eighth Circuit Court of Appeals ruled that the Department had failed to show they would be harmed by disclosure of the information. The DOC moved for rehearing with new affidavits claiming that its supplier would never sell pentobarbital to the DOC again if its identity were revealed. The supplier, called “M7,” filed its own pleading making the same point, and attaching a sworn statement from “M7.” The Eighth Circuit Court of Appeals changed its ruling and blocked our clients from getting the information. The U.S. Supreme Court denied certiorari.
After this case was over, the news outlet Buzzfeed.com uncovered the name of the seller: “Foundation Care, a 14-year-old pharmacy based in the suburbs of St. Louis that has been repeatedly found to engage in hazardous pharmaceutical procedures and whose cofounder has been been accused of regularly ordering prescription medications for himself without a doctor’s prescription.”