IN THE SUPREME COURT OF THE STATE OF NEVADA

*****
STATE OF NEVADA; NEVADA
Supreme Court Case No.:
DEPARTMENT OF CORRECTIONS;
JAMES DZURENDA, Director of the District Court Case No. A-18-777312-B
Electronically Filed
Nevada Department of Corrections, in his Sep 05 2018 08:22 a.m.
official capacity; IHSAN AZZAM, Ph.D, Elizabeth A. Brown
M.D., Chief Medical Officer of the State of Clerk of Supreme Court
Nevada, in his official capacity; and JOHN
DOE, Attending Physician at Planned
Execution of Scott Raymond Dozier in his
official capacity,

Petitioners,

vs.

THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA, IN
AND FOR THE COUNTY OF CLARK;
AND THE HONORABLE ELIZABETH
GONZALEZ, DISTRICT COURT JUDGE,
Respondents,

and

ALVOGEN, INC.; HIKMA

PHARMACEUTICALS USA INC.; and
SANDOZ, INC.,
Real Parties in Interest.

EMERGENCY MOTION UNDER NRAP 27(e) TO STAY PENDING THIS COURT’S

DECISION ON THE PETITION

IMMEDIATE ACTION REQUESTED BY SEPTEMBER 5, 2018

ANN M. MCDERMOTT (Bar No. 8180)

Bureau Chief
JORDAN T. SMITH (Bar No. 12097)
Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
(702) 486-3894
jsmith@ag.nv.gov

Docket 76847 Document 2018-34390

I. INTRODUCTION

The State has filed an emergency petition seeking a writ of prohibition or

mandamus to prevent the court ordered disclosure of the identity of the Attending

Physician that was scheduled to attend Scott Dozier’s execution on July 11, 2018. As

explained in the Petition, Nevada Department of Corrections Director, James

Dzurenda, attests that disclosing this individual’s identity will expose him or her and

their family to harassment, intimidation, and even death threats. This includes unwanted

contact by death penalty opponents and associates of inmates on death row. Disclosing

this information will stifle the State’s ability to find qualified individuals willing to assist

because, understandably, no one will want to put themselves or their families at risk

without the assurance of anonymity and confidentiality. The Attending Physician has

made clear that he or she will only serve as the attending physician to the extent their

anonymity is protected from disclosure. As other courts have recognized, this

identifying information is so sensitive that the District Court’s allowance of an

attorneys-eyes only protective order is not an adequate safeguard. McGehee v. Tex. Dept.

of Criminal Justice, No. H–18–1546, 2018 WL 3996956, at *12 (S.D. Tex. August 21,

2018).

Along with the Attending Physician’s identity, the District Court also allowed

inquiry into highly sensitive information about the lethal injection protocol’s creation

(including background science) and the State’s supply of other drugs that are unrelated

to the drug manufacturers that have brought this suit. This information is not remotely

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relevant to the drug manufacturers’ claims that the State improperly purchased and

acquired their drugs in violation of non-existent product “controls” between themselves

and their third-party distributor, Cardinal Health. An inmate mounting a challenge to

the lethal injection protocol itself would not be entitled to this highly sensitive

information. The District Court’s discovery order gives drug manufacturers broader

discovery rights than a condemned inmate.

The drug manufacturers’ true motive for seeking this information and the

Attending Physician’s identity is to cutoff the State’s already-limited ability to obtain

other drugs and to scare people away from assisting the State. Removing anonymity

and allowing this disclosure will prevent the State from finding the supplies and

individuals necessary to carry out lawful capital sentences. Courts considering similar

discovery requests have held “the disclosures would cause an undue burden on and

prejudice Defendants by subjecting them to the risk of harm, violence, and harassment

and by making it difficult for them to obtain lethal-injection drugs.” In re Ohio Execution

Protocol Litig., 845 F.3d 231, 237 (6th Cir. 2016).

At minimum, the State should not be required to produce this incredibly sensitive

information before this Court determines whether the drug manufacturers even possess

a viable cause of action in the related writ proceeding in Supreme Court Case Number

76485. If the drug manufacturers do not have cognizable claims for relief, the Court

need not address these discovery issues and the State need not produce this

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information. And many of the issues raised in this Petition inherently overlap the issues

in the other matter before this Court.

Currently, there are multiple depositions scheduled for Thursday, September 6,

2018 and Friday, September 7, 2018, and there is an evidentiary hearing scheduled for

Tuesday, September 11, 2018. The drug manufacturers intend to expose this

information during those proceedings. The District Court denied the State’s motions

for protective orders and orders in limine—and request to stay its rulings pending this

Petition—in the morning of September 4, 2018. Therefore, emergency relief and an

emergency stay is necessary. A temporary administrative stay is appropriate while the

Court reviews the Petition. Once this information is revealed, it cannot be taken back.

II. STATEMENT OF FACTS

Due to the emergency circumstances, and to avoid redundancy, a full recitation

of the facts is provided in the related writ proceeding in Supreme Court Case Number

76485. It suffices to say here that Alvogen filed this lawsuit on July 10, 2018, the day

before Dozier’s scheduled execution. In its Complaint, Alvogen alleges supposed

statutory and common law claims that the State illegally obtained Alvogen’s

“property”—its drugs—for use in Dozier’s execution. (App. 1-80). Alvogen seeks

return of its drug, Midazolam, based on its unfounded assertions that Defendants

obtained the drug through “subterfuge” or by some similar effort to evade alleged

manufacturer resale conditions or product “controls.” The Intervenors, Hikma and

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Sandoz, make nearly identical claims, although Sandoz has abandoned the supposed

statutory claims and only advances the common law claims. (App. 81-295).

All three drug manufacturers have served NRCP 30(b)(6) deposition notices and

written discovery aimed at the identity of “John Doe,” the Attending Physician, details

regarding the creation of the State’s lethal injection protocol, and specifics about the

State’s other drug inventory and suppliers. (App. 500-45; 687-732).

The State filed two motions for protective order and motions in limine on orders

shortening time on August 30, 2018. (App. 484-734). The District Court held a hearing

on September 4, 2018. While a written order is not yet available, the District Court

required the disclosure of the Attending Physician’s identity subject to a protective

order and limited the timeframe for the State’s disclosure regarding other drugs, other

drug manufacturers, and creation of the protocol to 2016 to present.1 The District

Court’s ruling did not otherwise address the underlying irrelevancy of the requested,

sensitive information.

III. ARGUMENT

A. Standard for Granting a Stay Pending Writ Review.

Nevada Rule of Appellate Procedure 8(a) requires a party seeking a stay to first

move in the lower court before requesting relief from this Court. NRAP 8(a); see also

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The drug manufacturers stipulated that they did not seek the identity of other
execution team members.

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Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 657, 6 P.3d 982, 986 (2000). Yesterday, the

State requested this stay from the District Court and was denied.

When considering a stay, this Court weighs a number of factors: (1) whether the

object of the petition will be defeated if the stay is denied; (2) whether petitioner will

suffer irreparable injury if the stay is denied; (3) whether the real party in interest will

suffer irreparable harm if a stay is granted; and (4) whether petitioner is likely to prevail

on the merits of the petition. NRAP 8(c). No single factor is dispositive and, if one or

two factors are especially strong, those may counterbalance other weak factors. Mikohn

Gaming Corp. v. McCrea, 120 Nev. 248, 251, 89 P.3d 36, 38 (2004).

B. The State’s Petition Presents Substantial Questions for this Court’s

Review.
A party requesting a stay “does not always have to show a probability of success

on the merits, the movant must ‘present a substantial case on the merits when a serious

legal question is involved ….’” See Hansen, 116 Nev. at 659, 6 P.3d at 987 (quoting Ruiz

v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981)) (emphasis added). A stay is appropriate

when the appeal does not appear frivolous or merely an attempt to delay. Mikohn Gaming

Corp., 120 Nev. at 253, 89 P.3d at 40. A stay may be entered even if the appeal’s merits

are unclear at this stage. See id. at 254, 89 P.3d at 40.

As described more fully in the Petition, and based on the numerous cases cited

therein, the State has presented a substantial case on whether the Attending Physician’s

identity must be disclosed given its lack of relevancy and the related security concerns,

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including intimidation and death threats. Likewise, the State has made a substantial case

that specifics regarding the lethal injection protocol’s creation and the State’s other drug

supplies are irrelevant to the drug manufacturers’ claims. Releasing this information will

prejudice the State and impose an undue burden because it will make individuals and

companies unwilling to assist the State with its obligation to carry out lawful capital

sentences. As Director Dzurenda declared, “revealing the names of … the attending

physician would completely undermine the process and it would be difficult if not

impossible to continue with the execution as authorized by state law, imposed by juries,

and ultimate ordered by the courts.” (App. 550). Numerous courts in similar contexts

have protected this information from disclosure because of its lack of relevancy and

tendency to injure the State.

There is a substantial question whether even an attorneys’ eyes only protective

order would be a sufficient precaution. Other courts have held that it is not. For

instance, in McGehee v. Texas Dept. of Criminal Justice, No. H–18–1546, 2018 WL 3996956

(S.D. Tex. August 21, 2018), the court concluded that a protective order limiting

dissemination of the information was an inadequate safeguard. Id. at *12.

Entry of a protective order merely limiting the dissemination of

information is an unsatisfactory alternative, as the drug supplier has made
it clear that it will discontinue selling the necessary drugs if its identity is
revealed. There is no allowance for revelation by court order. Moreover,
the inherent danger and hardship that would follow even an inadvertent
disclosure convince the Court that it must protect the information at issue
from discovery. For these reasons, the Defendants are entitled to withhold
from discovery any material that would identify
suppliers of lethal injection drugs or persons involved in the execution

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 process.
Id. (quoting Jordan v. Hall, 2018 WL 1546632, at *11 (S.D. Miss. 2018)); see also In re

Missouri Dep’t of Corrections, 839 F.3d at 737 (refusing to require disclosure under a

protective order because “‘it is likely that active investigation of the physician,

pharmacy, and laboratory will lead to further disclosure of the identities’”); Jordan, 2017

WL 5075252, at *21 (“[S]uch protective orders are not adequate to protect a state’s

interest in shielding the identities of individuals and entities that assist the state in

carrying out executions.”)).

C. If a Stay is Denied, the State will Suffer Harm and the Objects of the
Petition Will Be Defeated.
Courts can consider these two factors together. “Although irreparable or serious

harm remains part of the stay analysis, this factor will not generally play a significant

role in the decision whether to issue a stay.” Mikohn Gaming Corp., 120 Nev. at 253, 89

P.3d at 39.

Like the release of privileged information, once this information is released it

cannot be clawed back. The proverbial bell cannot be unrung. Director Dzurenda avers

that releasing this information “would cause irreparable harm to NDOC and the State.”

(App. 549-50). “It is well known that people pressure and harass individuals and drug

suppliers not to assist the states performing capital punishment. This pressure and

harassment makes it extremely difficult for the State to find companies and individuals

willing to assist the State, which frustrates the State’s sovereign interest.” (App. 550).

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The object of the State’s Petition—protecting the Attending Physician’s identity and

other highly sensitive sovereign information—will be defeated if it is required to

disclose this sensitive information before this Court reviews the Petition.

D. The Drug Manufacturers Will Not Suffer Any Harm From a Stay.

Conversely, the drug manufacturers will not suffer any harm if the Court grants

a stay while it reviews the important issues presented. “[A] mere delay in pursuing

discovery and litigation normally does not constitute irreparable harm.” Mikohn Gaming

Corp., 120 Nev. at 253, 89 P.3d at 39. Nor does increased litigation expenses. Id.

The drug manufacturers cannot claim injury from the denial of discovery to

which they are not entitled. A short delay will not harm the drug companies while the

Court considers these highly important discovery issues that undeniable State-interest

implications.

IV. CONCLUSION

For these reasons, all NRAP 8(c) factors weigh in favor of granting a stay and

the State respectfully requests that the Court enter a stay pending this Court’s decision

on the State’s Emergency Petition.

Dated: September 4, 2018.

/s/ Jordan T. Smith
Ann M. McDermott (Bar No. 8180)
Bureau Chief
Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101

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 NRAP 27(e) Certificate

I, Jordan T. Smith, declare as follows:

1. I am currently employed in the Office of the Attorney General as the

Deputy Solicitor General. I am counsel for Petitioners named herein.

2. I verify that I have read the foregoing Emergency Motion and that the same

is true of my own knowledge, except for matters stated on information and belief, and

as to those matters, I believe them to be true.

3. The facts showing the existence and nature of the emergency are set forth

in the Motion and in the Petition. As described above, relief is needed in less than 14

days to avoid irreparable harm from the disclosure of the subject information during

the depositions on September 6th and 7th as well as the evidentiary hearing on September

11, 2018.

4. The relief sought in this Motion was presented to the District Court and

was denied today, September 4, 2018. The State is filing this Motion at the earliest

possible time.

5. I have made every practicable effort to notify the Supreme Court and

opposing counsel of the filing of this Motion. The State’s intent to file this Motion was

expressed at the District Court hearing today and opposing counsel were alerted to the

filing of this Motion shortly before it was submitted for e-filing. I also called the Clerk

of Court’s Office before filing. A courtesy copy was emailed to all parties.

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 6. Below are the telephone numbers and office addresses of the known

participating attorneys:

Counsel for Alvogen, Inc.

James J. Pisanelli, Esq. Kenneth Schuler
Todd Bice, Esq. Michael Faris
Debra Spinelli, Esq. Alex Grabowski
PISANELLI BICE, PLLC LATHAM & WATKINS, LLP
400 South 7th Street, Suite 300 330 North Wabash Ave., #2800
Las Vegas, NV 89101 Chicago, IL 60611
Tel: 702-214-2100 Tel: 312-876-7659

Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Tel: 202-637-3321
Counsel for Hikma Pharmaceuticals USA Inc.
E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristen L. Martini, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702-949-8200

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 Counsel for Sandoz Inc.
J. Colby Williams, Esq.
Philip R. Erwin, Esq.
CAMPBELL & WILLIAMS
700 South Seventh Street
Las Vegas, NV 89101
Tel: 702-382-5222
Noel B. Ix., Esq.
PEPPER HAMILTON LLP
301 Carnegie Center, Suite 400
Princeton, NJ 08540
Tel: 609-452-0808

Andrew Kantra, Esq

300 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
Tel: 215-981-4000

Executed on this 4th day of September 2018 in Las Vegas, Nevada.

/s/ Jordan T. Smith

Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General

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 CERTIFICATE OF COMPLIANCE

I hereby certify that this Motion complies with the formatting requirements of

NRAP 27(d) and the typeface and type-style requirements of NRAP 27(d)(1)(E)

because this Motion has been prepared in a proportionally spaced typeface using Office

Word 2013 in size 14 double-spaced Garamond font. This filing also complies with

NRAP 32.

I further certify that I have read this Motion and that it complies with the page

or type-volume limitations of NRAP 27(d)(2) and NRAP 32 because, it is

proportionately spaced, and does not exceed 10 pages.

Finally, I hereby certify that to the best of my knowledge, information and belief,

it is not frivolous or interposed for any improper purpose. I further certify that this

Motion complies with all applicable Nevada Rules of Appellate Procedure, in particular

NRAP 28(e)(1), which requires that every assertion regarding matters in the record to

be supported by appropriate references to the record on appeal. I understand that I

may be subject to sanctions in the event that the accompanying brief is not in

conformity with the requirements of the Nevada Rules of Appellate Procedure.

Dated: September 4, 2018.

/s/ Jordan T. Smith

Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General

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 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing EMERGENCY

MOTION UNDER NRAP 27(E) TO STAY PENDING THIS COURT’S

DECISION ON THE PETITION IMMEDIATE ACTION REQUESTED BY

SEPTEMBER 5, 2018 with the Clerk of the Court for the Nevada Supreme Court by

using the appellate CM/ECF system on September 4, 2018.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

I further certify that a courtesy copy was emailed to counsel for Real Parties in

Interest simultaneously with the filing of the foregoing.

A copy was also provided to the following:

Counsel for Alvogen, Inc.
James J. Pisanelli, Esq. Kenneth Schuler
Todd Bice, Esq. Michael Faris
Debra Spinelli, Esq. Alex Grabowski
PISANELLI BICE, PLLC LATHAM & WATKINS, LLP
400 South 7th Street, Suite 300 330 North Wabash Ave., #2800
Las Vegas, NV 89101 Chicago, IL 60611
Tel: 702-214-2100 Tel: 312-876-7659

Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
Tel: 202-637-3321

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 Counsel for Hikma Pharmaceuticals USA Inc.
E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristen L. Martini, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702-949-8200

Counsel for Sandoz Inc.

J. Colby Williams, Esq. Noel B. Ix., Esq.
Philip R. Erwin, Esq. PEPPER HAMILTON LLP
CAMPBELL & WILLIAMS 301 Carnegie Center, Suite 400
700 South Seventh Street Princeton, NJ 08540
Las Vegas, NV 89101 Tel: 609-452-0808
Tel: 702-382-5222

Andrew Kantra, Esq

300 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
Tel: 215-981-4000

Hon. Elizabeth Gonzalez /s/ Barbara Fell

Eighth Judicial District Court An employee of the
Department 11 Office of the Attorney General
200 Lewis Avenue
Las Vegas, NV 89155

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