FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD ROSS PIZZUTO, Jr., No. 24-2275

D.C. No.
Plaintiff - Appellee,
1:21-cv-00359-
BLW
v.

JOSH TEWALT, Director, Idaho

Department of Correction, in his OPINION
official capacity; RANDY VALLEY,
Warden, Idaho Maximum Security
Institution, in his official capacity,

Defendants - Appellants.

Appeal from the United States District Court

for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Argued and Submitted September 25, 2024

San Francisco, California

Filed March 21, 2025

Before: Ronald M. Gould, Johnnie B. Rawlinson, and Mark

J. Bennett, Circuit Judges.

Opinion by Judge Bennett

2 PIZZUTO V. TEWALT

SUMMARY *

Discovery / 42 U.S.C. § 1983 / Collateral Order Doctrine

In this interlocutory appeal, the panel affirmed the

district court’s order granting Idaho death-row inmate
Gerald Ross Pizzuto’s request for discovery about where
Idaho’s execution protocol drugs originated, how the drugs
were manufactured, and when Idaho obtained the drugs.
Pizzuto filed a complaint under 42 U.S.C § 1983 against
the director of Idaho’s Department of Corrections and the
warden of the Idaho Maximum Security Institution alleging
that his execution would constitute cruel and unusual
punishment in violation of the Eighth Amendment.
The panel held that it had jurisdiction to review the
district court’s interlocutory discovery order because the
order fell into the narrow class of cases satisfying the
collateral order doctrine. First, unlike other discovery
orders, later review may not cure the possible harms caused
by the disclosures in the district court’s order. Second, the
State has an interest in protecting the identity of its execution
drug manufacturer. Third, unlike attorney-client privilege
and similar discovery disclosures, protection of an execution
drug manufacturer’s identity is rarely invoked. Finally, no
justice is afforded to the parties by not reaching the merits of
Defendants’ challenge to the district court’s order.
The panel held that the district court did not abuse its
discretion in ordering Defendants’ responses. The district

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PIZZUTO V. TEWALT 3

court did not abuse its discretion in finding that Pizzuto’s

requests for admission were relevant. Idaho’s secrecy
statute did not create an evidentiary privilege that binds
federal courts in federal question cases, and the panel was
not persuaded to declare a new federal evidentiary privilege
in the identity of a state’s execution drug supplier. Applying
a “reasonable degree of certainty” standard, the district court
did not abuse its discretion in ordering the disclosures. The
district court’s opinion was well reasoned in articulating why
it ordered the disclosures. Idaho did not show, to the
requisite degree, how its strong interest in enforcing its
criminal laws, including its death penalty law, would be
inappropriately harmed or burdened by allowing the
challenged discovery.

COUNSEL

Jonah J. Horwitz (argued), Assistant Federal Public

Defender, Capital Habeas Unit; Christopher M. Sanchez,
Assistant Federal Public Defender; Federal Defenders of
Idaho, Boise, Idaho; Stanley J. Panikowski III, DLA Piper
LLP US, San Diego, California; Sarah Kalman, DLA Piper
LLP US, Philadelphia, Pennsylvania; for Plaintiff-Appellee.
Kristina M. Schindele (argued), Deputy Attorney General,
Idaho Department of Correction; Raul Labrador, Idaho
Attorney General; Office of the Idaho Attorney General,
Boise, Idaho; Tanner Smith, Moore Elia & Kraft LLP, Boise,
Idaho; for Defendants-Appellants.
4 PIZZUTO V. TEWALT

OPINION

BENNETT, Circuit Judge:

Gerald Ross Pizzuto, Jr., a death-row inmate in Idaho,

filed suit alleging that his execution by lethal injection would
violate the Eighth Amendment’s prohibition against cruel
and unusual punishment. After the Idaho Department of
Correction (“Idaho”) obtained execution protocol drugs for
use in the execution of another death-row inmate, Plaintiff
sought certain discovery about where these drugs originated,
how these drugs were manufactured, and when Idaho
obtained these drugs. Idaho refused to respond, claiming
that disclosure would impose an undue burden by revealing
the identity of the State’s execution drug supplier, thus
imperiling its execution protocol. The district court found
that the information was relevant, that it was not protected
by privilege, and that its disclosure did not unduly burden
the State. Idaho filed an interlocutory appeal of the district
court’s discovery order. We have jurisdiction under the
collateral order doctrine, and we affirm.
BACKGROUND
Plaintiff Gerald Ross Pizzuto, Jr. is an Idaho death-row
inmate. On November 16, 2021, he filed an amended
complaint under 42 U.S.C. § 1983 against Defendants Josh
Tewalt, the director of Idaho’s Department of Correction,
and Tim Richardson, the warden of the Idaho Maximum
Security Institution, in their official capacities
(“Defendants” or the “State”). Plaintiff asserted a single
claim: that his execution would constitute cruel and unusual
punishment, in violation of the Eighth Amendment to the
United States Constitution, because his medical conditions
and Idaho’s lethal injection practices unconstitutionally
 PIZZUTO V. TEWALT 5

increased the risk of pain and suffering during his execution.

Plaintiff alleged that Idaho relied on unreliable drug sources
for earlier executions, and use of unreliably sourced drugs
could lead to “a substantial risk of serious harm in an
execution.” 1 Plaintiff alleged that his medical conditions,
including his chronic heart problems and gabapentin
prescription, created “a substantial risk of serious harm” by
“the use of pentobarbital at his execution.”
In March 2022, the Idaho Legislature passed House Bill
No. 658, modifying state statutes related to state execution
participants and state execution drug suppliers. 2022 Idaho
Sess. Laws 590–94. Under the amended law, “the identities”
of any “entity who compounds, synthesizes, tests, sells,
supplies, manufactures, stores, transports, procures,
dispenses, or prescribes the chemicals or substances for use
in an execution” “shall be confidential, shall not be subject
to disclosure, and shall not be admissible as evidence or
discoverable in any proceeding before any court.” Idaho
Code § 19-2716A(4).
In December 2021, Defendants answered Plaintiff’s
amended complaint, and Plaintiff served discovery on the
State. Plaintiff served three sets of discovery on the State by
January 2023. The first set consisted of document
production requests, physical space inspection requests,

1
Plaintiff alleged that the use of improperly compounded drugs could
create “risks that the [drug] particle becomes contaminated or lodged in
small blood vessels or in a prisoner’s lungs, which would be extremely
painful.” He alleged that unreliably sourced drugs could “become
contaminated with fungi, bacteria, and other contaminants” that “would
elicit an inflammatory reaction and c[ould] result in shock” or produce
“immediate anaphylaxis.” Plaintiff alleged that “[t]hese various
problems with [improperly sourced] compounded drugs create a
substantial risk of serious pain.”
6 PIZZUTO V. TEWALT

interrogatories, and requests for admission. Exhibit 30,

Pizzuto v. Tewalt, No. 21-cv-00359 (D. Idaho Nov. 22,
2022), ECF No. 54-31. The second set consisted of
interrogatories. Exhibit 1, Pizzuto v. Tewalt, No. 21-cv-
00359 (D. Idaho Apr. 13, 2023), ECF No. 82-2. The third
set consisted of interrogatories. Exhibit 3, Pizzuto v. Tewalt,
No. 21-cv-00359, (D. Idaho Apr. 13, 2023), ECF No. 82-4;
Exhibit 5, Pizzuto v. Tewalt, No. 21-cv-00359 (D. Idaho Apr.
13, 2023), ECF No. 82-6; Exhibit 7, Pizzuto v. Tewalt, No.
21-cv-00359 (D. Idaho Apr. 13, 2023), ECF No. 82-8.
The State refused to answer six of Plaintiff’s
interrogatories and two of Plaintiff’s requests for admission.
The State refused to answer Plaintiff’s Interrogatory 3 from
his first set of interrogatories which asked “[i]f
manufactured, what companies are involved in the[]
manufacture [of the execution chemicals]?” The State
responded, citing Idaho’s execution secrecy statute:

Defendants Tewalt and Richardson object to

this interrogatory pursuant to Idaho Code
§ 19-2716A, which prohibits the disclosure
of “[a]ny person or entity who compounds,
synthesizes, tests, sells, supplies,
manufactures, stores, transports, procures,
dispenses, or prescribes the chemicals or
substances for use in an execution . . . .”
Further, Defendants cannot answer this
interrogatory as the Department does not
currently have any execution chemical in its
possession.

Second Mot. To Compel Disc. at 5, Pizzuto v. Tewalt, No.

21-cv-00359 (D. Idaho Apr. 13, 2023), ECF No. 82-1
 PIZZUTO V. TEWALT 7

(alterations in original). The State provided the same

response to: Interrogatory 4, which asked “[i]f compounded,
what is the compounding pharmacy” for the drugs;
Interrogatory 7, which asked Defendants to “[d]escribe how
the drugs were chosen for Mr. Pizzuto’s execution”; and
Interrogatory 8, which asked Defendants to “[d]escribe how
the source of the drugs was chosen for Mr. Pizzuto’s
execution, i.e., the compounder or manufacturer.” Id. The
State responded similarly to Interrogatory 15, which asked
for a description of “every step [Defendants] have taken
from August 23, 2022 to the present to locate a source of
chemicals for Mr. Pizzuto’s execution,” and Interrogatory
19, which asked the State to describe the circumstances
under which a member of the medical execution team had
left the medical team. Id. at 5–6.
The State also objected on the same basis to Plaintiff’s
Request for Admission 54 that the State “[a]dmit that [it] will
make inquiries to determine the manufacturer of the [Active
Pharmaceutical Ingredients] for the Execution Drugs” and
Plaintiff’s Request for Admission 89 that the State “[a]dmit
that [it] will identify to [Plaintiff’s] counsel the person or
persons providing the ‘technical assistance’ and performing
the ‘technical review’ described on page 25 of [Standard
Operating Procedure] 135.” Id. at 7. The State similarly
objected to Plaintiff’s Request for Production 16 for all
emails received or sent “regarding the choice of, search for,
acquisition of, transportation of, and/or maintenance of
execution chemicals.” Exhibit 7, Pizzuto, ECF No. 82-8.
Plaintiff moved to compel.
In a July 2023 order, the district court found that
“Idaho’s secrecy statute does not create an evidentiary
privilege that binds federal courts in federal question cases”
and was not persuaded to declare “a new, coextensive federal
8 PIZZUTO V. TEWALT

privilege in the identities of states’ execution-drug

suppliers.” But, recognizing Idaho’s interest in enforcing its
criminal laws, including the death penalty, the district court
evaluated whether Plaintiff’s discovery requests constituted
an undue burden on Defendants under Federal Rule of Civil
Procedure 26(c). The district court found it would place an
undue burden on Defendants to produce “any information
that would, to a reasonable degree of certainty, identify any
person or entity involved in preparing for, supplying drugs
for, or administering the death penalty in Idaho.”
Applying this standard, the district court ordered
Defendants to comply with certain of Plaintiff’s discovery
requests. The district court denied as irrelevant Plaintiff’s
motion to compel a response to Interrogatory 15 about every
step the State took to identify a source of execution drugs.
The district court found Defendants would be unduly
burdened if required “to identify their execution-drug
supplier” and denied Plaintiff’s motion to compel responses
to Interrogatories 3 and 4. Similarly, the district court denied
Plaintiff’s motion to compel responses to Interrogatories 7
and 8 and Request for Production 16 to the extent it sought
any answer “that would identify the State’s execution team
members or drug suppliers to a reasonable degree of
certainty,” but the district court granted Plaintiff’s motion to
compel to the extent it would not so identify them. The
district court ordered Defendants to respond within twenty-
one days to Plaintiff’s Interrogatory 19 about why a member
of the medical team had left. The district court denied
Plaintiff’s motion to compel a response to Request for
Admission 89 that sought “to compel Defendants to identify
the person who will provide technical assistance.”
According to Plaintiff, the State “[e]ven after being
ordered to provide additional information,” continued to
 PIZZUTO V. TEWALT 9

offer “vague statements” and withheld “rudimentary details,

like whether the drugs being sought [we]re compounded or
manufactured.” Mot. for Leave to Serve Additional
Interrogs. at 3, Pizzuto v. Tewalt, No. 21-cv-00359 (D. Idaho
Sept. 1, 2023), ECF No. 91-1. According to Plaintiff, the
State “also declined to tell Mr. Pizzuto what information [it]
will give him about the actual drugs they obtain for his
execution, despite the Court’s directive.” Id. Plaintiff did
not file another motion to compel related to these
interrogatories.
In late 2023, an Idaho state court issued a death warrant
for Thomas Creech, another inmate on death row. The State
informed Creech that it had “secured the chemicals
necessary to carry out an execution by lethal injection” under
Idaho’s execution protocol. When it issued his death
warrant, the State informed Creech that it intended to use
pentobarbital as part of his lethal injection protocol and had
already acquired the pentobarbital. Plaintiff served requests
for admission about the source of the pentobarbital that the
State had obtained for Creech’s execution. 2 Plaintiff
requested that the State, among other things:

(1) “Admit or deny that the Execution Drugs

were manufactured by Akorn,” a defunct
pharmaceutical company;

2
Creech’s execution was set for February 28, 2024. The execution was
halted after the execution team failed eight times to set an intravenous
line to administer the lethal injection drugs. The State issued another
death warrant for November 13, 2024, but on November 6, 2024, a
federal district court issued a stay of execution.
10 PIZZUTO V. TEWALT

(2) “Admit or deny that [Idaho] identified a

source of Execution Drugs prior to
October 10, 2023”;
(3) “Admit or deny that [Idaho] obtained
Execution Drugs prior to October 10,
2023”;
(4) “Admit or deny that [Idaho] would
potentially use the Execution Chemicals
currently in its possession to execute Mr.
Pizzuto”;
(5) “Admit or deny that the Execution
Chemicals currently in [Idaho’s]
possession are compounded”;
(6) “Admit or deny that the Execution Drugs
were made in America” or “outside of
America”;
(7) “Admit or deny that the Execution Drugs
came from a veterinary source” or “a
hospital”; and
(8) “Admit or deny that the Execution Drugs
were sold by a wholesaler/distributor” or
“pharmacy.”

Exhibit A, Pizzuto v. Tewalt, No. 21-cv-00359 (D. Idaho

Feb. 14, 2024), ECF No. 115-2; Exhibit A, Pizzuto v. Tewalt,
No. 21-cv-00359 (D. Idaho Feb. 2, 2024), ECF No. 109-2;
Exhibit 7, Pizzuto v. Tewalt, No. 21-cv-00359 (D. Idaho Feb.
15, 2023), ECF No. 102-8.
Plaintiff also requested that the State supplement its
earlier discovery responses. The State had previously
answered Plaintiff’s interrogatories and requests for
 PIZZUTO V. TEWALT 11

production but had not yet obtained the pentobarbital or had

not acknowledged it had obtained pentobarbital. Plaintiff
requested supplemental information about the acquired
execution chemicals including “[a]ll documents generated or
obtained in connection with [Idaho’s] acquisition,
transportation, and storage of execution chemicals,
including but not limited to receipts, purchase orders,
expiration dates, and so forth,” and “[a]ll documents
obtained from the source of [the State]’s execution
chemicals.”
Defendants answered the second, fourth, and fifth
admission requests listed above, but refused to answer the
others, objecting similarly to each, because each:

[C]reates an undue burden on the [State] and

interferes with the agency’s duty to carry out
a lawfully imposed death sentence. The Idaho
Legislature enacted Idaho Code § 19-2716A
to prohibit the disclosure of the identities of
any person or entity who compounds,
synthesizes, tests, sells, supplies,
manufactures, stores, transports, procures,
dispenses, or prescribes the chemicals or
substances for use in an execution.
Defendant[s] . . . object[] to disclosure of any
information that could lead to the
identification of the person or entity from
whom [the State] acquired execution
chemicals. Defendant[s] . . . assert[]
disclosure of the requested information could
12 PIZZUTO V. TEWALT

lead to the identity of the source of execution

chemicals.
The State produced a purchase order and a United States
Drug Enforcement Agency registration form for the
pentobarbital but redacted the purchase date on the purchase
order. The State also provided a “Certificate of Analysis”
that contained results of chemical testing performed on the
drug but redacted the report date of the analysis. The State
began to produce documents responsive to Plaintiff’s
requests for production and stated that it would
“supplement” its responses “as appropriate.” Plaintiff
moved to compel Defendants’ responses to these requests for
admission and production.
In March 2024, the district court granted in part and
denied in part the motions to compel. The district court
found that the requested information was relevant. The
district court reiterated its earlier standard for whether the
requests constituted an undue burden finding that
Defendants could withhold “information that would, to a
reasonable degree of certainty, identify a person or entity
involved in preparing for, supplying drugs for, or
administering the death penalty in Idaho” and thus
undermine the State’s ability to “enforce its criminal laws.”
Applying this standard, the district court found that
Defendants “offer[ed] only bare speculation that the
purchase date could be used in conjunction with ‘other
records’ to trace the execution drugs to a particular supplier.”
The district court found that the State failed “to go further
and explain, in concrete terms, how [its] answers to these
particular questions” about whether the execution drug
manufacturer was domestic or foreign “may actually lead to
the identification of [its] supplier.” Similarly, the district
 PIZZUTO V. TEWALT 13

court found that the State “offered no evidence or analysis to

support [its] speculation” that information about the type of
drug manufacturer, such as whether it was a veterinary or
hospital source, would lead to the identification of the
manufacturer. The district court refused to reject Plaintiff’s
discovery requests “based on some unquantified risk that
Defendants’ answers could theoretically lead to the
identification of the drug supplier.” And the district court
found that Defendants did not explain how their supplier
could be identified if the report date on the Certificate of
Analysis or whether Akorn was the manufacturer were
disclosed.
All told, while the district court reasoned that the State’s
claim that the requested information “would increase the risk
that [Idaho’s] supplier will be identified” was “true as a
general matter,” “Defendants fail[ed] to go further and
explain, in concrete terms, how their answers to these
particular questions may actually lead to the identification of
their supplier.” The district court concluded that answering
Plaintiff’s requests for admission identified above and
producing a Certificate of Analysis with an unredacted
report date would not unduly burden Defendants. The
district court ordered that Defendants respond to Plaintiff’s
requests for admission, save for the dates by which the State
identified its execution drugs, which Defendants had
adequately provided.
On April 10, 2024, Defendants filed a timely notice of
interlocutory appeal of the district court’s March 2024 order.
Defendants did not file an appeal of the district court’s July
2023 order.
14 PIZZUTO V. TEWALT

STANDARD OF REVIEW
“We have jurisdiction to determine whether we have
jurisdiction to hear the case.” Aguilar v. Walgreen Co., 47
F.4th 1115, 1120 (9th Cir. 2022) (quoting Childs v. San
Diego Fam. Hous. LLC, 22 F.4th 1092, 1095 (9th Cir.
2022)). We review questions of our jurisdiction de novo. Id.
(citing Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137,
1140 (9th Cir. 2009)). We review a district court’s discovery
rulings for abuse of discretion. U.S. Fid. & Guar. Co. v. Lee
Invs. LLC, 641 F.3d 1126, 1136 n.10 (9th Cir. 2011).
DISCUSSION
A. We have jurisdiction under the collateral order
doctrine.
Courts of appeals “have jurisdiction of appeals from all
final decisions of the district courts of the United States, . . .
except where a direct review may be had in the Supreme
Court.” 28 U.S.C. § 1291. “A ‘final decision’ is typically
one ‘by which a district court disassociates itself from a
case.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106
(2009) (brackets omitted) (quoting Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995)).
In limited circumstances appeals may be taken before a
final decision is made. This class of cases includes orders
certified by a district court for immediate appeal, see 28
U.S.C. § 1292(b), or decisions that “do not end the
litigation” but “are appropriately deemed ‘final.’” Mohawk
Indus., 558 U.S. at 106 (quoting Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545–46 (1949)). We
accommodate review of this latter subset of decisions as
“final” under the collateral order doctrine. See Digit. Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)
 PIZZUTO V. TEWALT 15

(noting “[t]he collateral order doctrine is best understood not

as an exception to the ‘final decision’ rule laid down by
Congress in § 1291, but as a ‘practical construction’ of it”
(quoting Cohen, 337 U.S. at 546)). This category of cases is
narrow because “[p]ermitting piecemeal, prejudgment
appeals . . . undermines ‘efficient judicial administration’
and encroaches upon the prerogatives of district court
judges, who play a ‘special role’ in managing ongoing
litigation.” Mohawk Indus., 558 U.S. at 106 (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
(1981)).
“To fall within the narrow class of orders satisfying the
Supreme Court’s collateral order doctrine, an order must
(1) ‘conclusively determine the disputed question,’
(2) ‘resolve an important issue completely separate from the
merits of the action,’ and (3) ‘be effectively unreviewable on
appeal from a final judgment.’” Childs, 22 F.4th at 1095
(quoting Will v. Hallock, 546 U.S. 345, 349 (2006)). The
Supreme Court has summarized these considerations as
(1) “conclusiveness,” (2) “separateness,” and (3) “effective
unreviewability.” Mohawk Indus., 558 U.S. at 108.
The district court’s March 2024 ruling on Plaintiff’s
motion to compel discovery did not end the litigation on the
merits, and the district court did not certify its order for
interlocutory review under 28 U.S.C. § 1292(b). But
because the district court’s discovery order falls into the
narrow class of cases satisfying the collateral order doctrine,
we have jurisdiction.
The parties agree that the order conclusively determined
the disputed question. And the parties do not dispute that
this issue is completely separate from the merits. But the
parties dispute the importance of this question and whether
16 PIZZUTO V. TEWALT

this question would “be effectively unreviewable on appeal

from a final judgment” because a lack of review “would
imperil a substantial public interest.” Will, 546 U.S. at 349,
353.
Lack of review “imperil[s] a substantial public interest,”
id., “only where the order at issue involves ‘an asserted right
the legal and practical value of which would be destroyed if
it were not vindicated before trial,’” Midland Asphalt Corp.
v. United States, 489 U.S. 794, 799 (1989) (quoting United
States v. MacDonald, 435 U.S. 850, 860 (1978)). To resolve
whether an order imperils a substantial public interest, the
Supreme Court has instructed us to look to “the entire
category to which a claim belongs” rather than
individualized claims of jurisdiction. Digit. Equip. Corp.,
511 U.S. at 868. “As long as the class of claims, taken as a
whole, can be adequately vindicated by other means, ‘the
chance that the litigation at hand might be speeded, or a
particular injustic[e] averted,’ does not provide a basis for
jurisdiction under § 1291.” Mohawk Indus., 558 U.S. at 107
(alteration in original) (quoting Digit. Equip. Corp., 511 U.S.
at 868).
Defendants seek review of the district court’s March
2024 discovery order. In general, the Supreme Court has
instructed that the collateral order doctrine does not apply to
discovery orders. See Firestone Tire, 449 U.S. at 377 (“[W]e
have generally denied review of pretrial discovery orders.”);
Mohawk Indus., 558 U.S. at 108. We have jurisdiction here,
however, because the context and the disclosures in the
district court’s order are distinct from the ordinary class of
discovery orders.
First, unlike other discovery orders, later review may not
cure the possible harms caused by the disclosures in the
 PIZZUTO V. TEWALT 17

district court’s order. The Supreme Court has instructed that

“[t]he crucial question” in evaluating the public interest at
stake “is not whether an interest is important in the abstract;
it is whether deferring review until final judgment so
imperils the interest as to justify the cost of allowing
immediate appeal of the entire class of relevant orders.”
Mohawk Indus., 558 U.S. at 108. “[T]he finality requirement
should ‘be construed so as not to cause crucial collateral
claims to be lost and potentially irreparable injuries to be
suffered.’” Firestone Tire, 449 U.S. at 376 (quoting
Mathews v. Eldridge, 424 U.S. 319, 331 n.11 (1976)).
Significant to our determination is that there is a
possibility that Defendants’ important interests would be
“imperil[ed]” without review. Mohawk Indus., 558 U.S. at
108. The State’s interest in keeping the identity of its
execution drug supplier a secret is substantial. If the State’s
execution drug supplier were identified, the State’s
execution drug protocol would be imperiled. The State is
concerned that information about its execution drug supplier,
once released, is available forever and could be used together
with other information to reveal the identity of its execution
drug supplier.
Defendants argue that disclosure of the requested
information will allow Plaintiff and anti-death penalty
advocates to identify and target the manufacturer of Idaho’s
execution drugs. If Defendants are correct, then the order is
effectively unreviewable on appeal from a final judgment.
The manufacturer would be identified, and Idaho’s
execution protocol would be imperiled. See Glossip v.
Gross, 576 U.S. 863, 869–71 (2015) (describing efforts by
anti-death penalty advocates to lobby drug manufacturers
and suppliers to make execution drugs unavailable). Even if
18 PIZZUTO V. TEWALT

we later determined that the information Plaintiff requested

was not relevant or useful, we could not cure this harm.
The parties agree that requiring outright disclosure of the
drug manufacturer would be effectively unreviewable on
appeal. Oral Arg. at 16:24–16:47, 19:02–21:47. And the
parties likely would not dispute that the disclosure of
information completely unrelated to the source of the
execution drugs would be reviewable on appeal because this
information could not be used to identify the drug
manufacturer. Plaintiff’s discovery requests fall somewhere
in between these examples.
The district court’s order compelled disclosure of the
following information: the “purchase date” of the execution
drugs, the dates Idaho obtained the execution drugs, whether
the drugs “were made ‘in America’” or were “imported,”
“whether the drugs came from a ‘veterinary source’ or a
hospital,” “whether the drugs were sold by a
‘wholesaler/distributor’ or a pharmacy,” “the ‘Report Date’
on the Certificate of Analysis,” and whether the drugs “were
manufactured by Akorn, a now-bankrupt pharmaceutical
company.” Taken together with other publicly available
information, it is possible that Plaintiff or anti-death penalty
advocates might identify the manufacturer of Idaho’s
execution drugs. 3
When the collateral order doctrine does not apply, the
Supreme Court has found that post-merits remedies can cure
a prior error, even in common discovery contexts. See, e.g.,
Mohawk Indus., 558 U.S. at 109 (“Appellate courts can

3
As we discuss below, “might” or “could” be able to identify is not the
merits standard by which we judge if the district court abused its
discretion in ordering discovery.
 PIZZUTO V. TEWALT 19

remedy the improper disclosure of privileged material in the

same way they remedy a host of other erroneous evidentiary
rulings: by vacating an adverse judgment and remanding for
a new trial in which the protected material and its fruits are
excluded from evidence.”); see also SolarCity Corp. v. Salt
River Project Agric. Improvement & Power Dist., 859 F.3d
720, 725–27 (9th Cir. 2017) (finding state-action immunity
is immunity from liability, not suit, and “can be protected by
a post-judgment appeal”); R.W. v. Columbia Basin Coll., 77
F.4th 1214, 1224 (9th Cir. 2023) (holding party substitution
under Federal Rule of Civil Procedure 25 was reviewable
upon entry of a final judgment by replacing the named
party).
But unlike other types of discovery disclosures, the
possible consequences of the district court’s order cannot
“be adequately vindicated by other means.” SolarCity
Corp., 859 F.3d at 724 (quoting Mohawk Indus., 558 U.S. at
107). If the identity of the State’s execution drug supplier or
information leading to the supplier’s identity were revealed,
there is no way to undo that disclosure. Unlike the disclosure
of privileged information, there would be no way to “redo”
the disclosures without revealing the State’s execution drug
supplier. And, on review, any argument that the discovery
requests had unduly burdened the State would be moot
because that information would already have been revealed.
See generally Campbell-Ewald Co. v. Gomez, 577 U.S. 153,
160–61 (2016) (discussing the non-justiciability of review
when intervening circumstances make it impossible to grant
relief).
Second, the State has an interest in protecting the identity
of its execution drug manufacturer. In our prior cases
applying the collateral order doctrine to motions to seal or
unseal information, we have looked to the interests asserted
20 PIZZUTO V. TEWALT

in keeping the information secret. In Islamic Shura Council

of Southern California v. FBI, 635 F.3d 1160 (9th Cir. 2011),
we found a ruling that unsealed an order containing sensitive
national security and law enforcement information was
effectively unreviewable on appeal because “once the order
is unsealed, any government appeal of the issue after
judgment would be moot. When an order is unsealed, the
unsealing cannot be reversed.” Id. at 1164. On the other
hand, in United States v. Guerrero, 693 F.3d 990 (9th Cir.
2012), we found that orders to unseal mental competency
proceedings for public access were not immediately
appealable because “concerns raised by public access to a
criminal defendant’s competency proceedings” were not
“comparable” to “national security” or other dire interests.
Id. at 998.
As the district court correctly recognized, Idaho’s
interest in protecting the identity of its drug manufacturer is
significant. See Nelson v. Campbell, 541 U.S. 637, 644
(2004) (“[A] constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to
a challenge to the fact of the sentence itself . . . . [A] State
retains a significant interest in meting out a sentence of death
in a timely fashion.”); Towery v. Brewer, 672 F.3d 650, 661
(9th Cir. 2012) (per curiam) (“We also recognize that the
State ordinarily has ‘a strong interest in enforcing its
judgments without undue interference from federal courts
. . . .’”); Landrigan v. Brewer, 625 F.3d 1132, 1143 (9th Cir.
2010) (Kozinski, C.J., dissenting from denial of rehearing en
banc) (“Certainly [the state] has a legitimate interest in
avoiding a public attack on its private drug manufacturing
sources . . . .”); Calderon v. Thompson, 523 U.S. 538, 556
(1998) (“Our federal system recognizes the independent
power of a State to articulate societal norms through criminal
 PIZZUTO V. TEWALT 21

law; but the power of a State to pass laws means little if the
State cannot enforce them.” (quoting McCleskey v. Zant, 499
U.S. 467, 491 (1991))); Glossip, 576 U.S. at 869 (noting the
Supreme Court has never invalidated a procedure for
carrying out the death penalty as infliction of cruel and
unusual punishment, “animated in part by the recognition
that because it is settled that capital punishment is
constitutional, ‘[i]t necessarily follows that there must be a
[constitutional] means of carrying it out.’” (alterations in
original) (quoting Baze v. Rees, 553 U.S. 35, 47 (2008)
(plurality opinion))).
Plaintiff asserts there is a countervailing public interest
in learning about executions “so that citizens ‘can determine
whether lethal injections are fairly and humanely
administered.’” But we have held that the identity of the
manufacturer of execution drugs differs from other public
rights to access executions and “that the public does not have
a right of access to th[at] information.” First Amend. Coal.
of Ariz., Inc. v. Ryan, 938 F.3d 1069, 1078 (9th Cir. 2019).
Third, unlike the attorney-client privilege and similar
discovery privileges, protection of an execution drug
manufacturer’s identity is rarely invoked. 4 Collateral review
of these types of orders, therefore, does not implicate
significant “institutional costs,” Mohawk Indus., 558 U.S. at
112, or “swallow the general rule that a party is entitled to a
single appeal, to be deferred until final judgment has been
entered, in which claims of district court error at any stage

4
At the end of 2023, there were 728 death penalty cases pending in
federal district courts and state supreme courts within the Ninth Circuit.
U.S. CTS. FOR THE NINTH CIR., 2023 ANNUAL REPORT 62 (2023). And
within this small class of cases, we have seen few discovery orders that
risk divulging the identity of the supplier of a state’s execution drugs.
22 PIZZUTO V. TEWALT

of the litigation may be ventilated,” Digit. Equip. Corp., 511

U.S. at 868 (citation omitted).
Finally, no justice is afforded the parties by not reaching
the merits of Defendants’ challenge to the district court’s
order. To assess our jurisdiction, we must already grapple
with the possibility of the disclosure of Idaho’s execution
drug supplier due to the district court’s order—the basis for
Defendants’ challenge to the discovery order. The collateral
order doctrine is driven by the value of judicial economy,
which we do not serve by declining to accommodate review.
And as we have seen, these types of discovery orders will
continue to arise in this and other Idaho cases and possibly
elsewhere. It would not benefit anyone for us to simply
decline to address these issues now.
Because it is cabined to this context, our decision will
not “overpower the substantial finality interests § 1291 is
meant to further: judicial efficiency, for example, and the
‘sensible policy of avoid[ing] the obstruction to just claims
that would come from permitting the harassment and cost of
a succession of separate appeals from the various rulings to
which a litigation may give rise.’” Will, 546 U.S. at 350
(alteration in original) (internal quotations omitted) (quoting
Firestone Tire, 449 U.S. at 374). Accordingly, we have
jurisdiction to review the district court’s discovery order.
B. The district court did not abuse its discretion in
ordering Defendants’ responses.
We review discovery orders for abuse of discretion. See
Branch v. Umphenour, 936 F.3d 994, 1005 (9th Cir. 2019).
“A district court ‘has wide latitude in controlling discovery,
and its rulings will not be overturned in [the] absence of a
clear abuse of discretion.’” Lane v. Dep’t of the Interior, 523
F.3d 1128, 1134 (9th Cir. 2008) (quoting White v. City of
 PIZZUTO V. TEWALT 23

San Diego, 605 F.2d 455, 461 (9th Cir. 1979)). “A court
abuses its discretion when it applies an incorrect legal rule
or relies upon a factual finding that is illogical, implausible,
or without support in inference that may be drawn from the
record.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053,
1060 (9th Cir. 2014) (quoting Valle del Sol Inc. v. Whiting,
732 F.3d 1006, 1014 (9th Cir. 2013)).
Defendants argue that the “district court did not consider
other factors required by Federal Rule of Civil Procedure
26—including relevance, timeliness, good cause, utility, or
materiality.” Regarding relevance, Defendants did not argue
below that the dates on which Defendants acquired the drugs
were irrelevant. Thus, Defendants have waived these
relevance objections. 5 See Fed. R. Civ. P. 36(a)(5) (“The
grounds for objecting to a request must be stated.”);
Richmark Corp. v. Timber Falling Consultants, 959 F.2d
1468, 1473 (9th Cir. 1992) (“It is well established that a
failure to object to discovery requests within the time
required constitutes a waiver of any objection.”).
For the other requested information, the district court
found that the geographic origin of the drugs, the type of
drug supplier, and whether Akorn was the drug supplier were
all relevant. “District courts have broad discretion in
determining relevancy for discovery purposes.” Surfvivor
Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir.

5
Even were these objections not waived, we would easily conclude that
under the broad discovery standards, the date information that Plaintiff
seeks is reasonably calculated to lead to the discovery of admissible
evidence. Plaintiff alleged that improperly stored or old pentobarbital
degrades the chemical and increases the risks associated with lethal
injection. The dates that the State obtained its execution drugs are
relevant to both the efficacy and the safety of the State’s execution
protocol.
24 PIZZUTO V. TEWALT

2005). “Relevant information for purposes of discovery is

information ‘reasonably calculated to lead to the discovery
of admissible evidence.’” Id. (quoting Brown Bag Software
v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)).
This standard is a “low bar.” Sandoval v. County of San
Diego, 985 F.3d 657, 666 (9th Cir. 2021).
The district court did not abuse its discretion in finding
that Plaintiff’s requests for admission were relevant.
Plaintiff alleges that “[t]he use of pentobarbital at [his]
execution creates a substantial risk of serious pain and
suffering” in violation of the Eighth Amendment. The date
that the drugs were obtained, 6 the geographic origin of the
drugs, 7 and the type of company formulating the drugs 8 are

6
Plaintiff alleged that old or improperly stored pentobarbital increases
the risks associated with lethal injection. When the State obtained the
drugs is relevant to whether Plaintiff would experience unconstitutional
risk of pain or suffering in his execution.
7
Plaintiff alleged that sterile and technical manufacturing protocols must
be implemented to avoid chemical degradation or contamination.
Absent these standards, Plaintiff alleged he faces an increased risk of
pain or suffering in his execution. Whether the State’s drugs were made
by manufacturers in countries with robust chemical manufacturing
standards or monitoring by the United States Food and Drug
Administration (“FDA”) is relevant.
8
Plaintiff alleged that drugs manufactured by compounding pharmacies
are not subject to the FDA’s safety and efficacy standards. He alleged
that drugs made by compounding pharmacies are generally not tested for
“identity, potency, and purity, or to detect contamination.” He alleged
that “[a]ny one of these problems increases the danger that a
compounded drug would not work as it is intended to and would
therefore lead to a substantial risk of serious harm in an execution.”
Whether the State’s drugs were made by a compounding pharmacy is
relevant to whether Plaintiff would experience unconstitutional pain or
suffering in his execution.
 PIZZUTO V. TEWALT 25

relevant because these factors may bear on the reliability of

the drugs.
In its July 2023 order, the district court found that
Idaho’s secrecy statute did not create a federal evidentiary
privilege, and it did not find that any other federal
evidentiary privilege applied to Idaho’s secrecy statute.
Defendants do not directly challenge the district court’s
evidentiary privilege ruling, but in responding below and on
appeal, they rely on Idaho’s secrecy statute in refusing to
respond to Plaintiff’s requests for admission. They argue
that “the text of [Idaho’s secrecy] statute is important to the
application of the undue burden standard set forth in Federal
Rule of Civil Procedure 26” and that suppliers rely on this
statute in deciding to transact with Idaho, making it
“imperative” to “accord some deference to that reliance.”
We agree with the district court that “Idaho’s secrecy
statute does not create an evidentiary privilege that binds
federal courts in federal question cases.” And we are not
persuaded to declare a new federal evidentiary privilege in
the identity of a state’s execution drug supplier. See Jaffee
v. Redmond, 518 U.S. 1, 8 (1996) (“Rule 501 of the Federal
Rules of Evidence authorizes federal courts to define new
privileges by interpreting ‘common law principles . . . in the
light of reason and experience.’” (alteration in original)); id.
at 13 (discussing how a “consensus among the States”
supports recognition of a new federal evidentiary privilege);
Trammel v. United States, 445 U.S. 40, 51 (1980)
(explaining that a new testimonial privilege must “promote[]
sufficiently important interests to outweigh the need for
probative evidence”). As the district court correctly noted,
to find states have such a privilege would invite states to
“dodge federal judicial review by broadly exempting
themselves from the discovery process.”
26 PIZZUTO V. TEWALT

Other circuit courts have similarly declined to find that

federal protections or privileges completely shield all
information about an execution drug manufacturer from
discovery. See Jordan v. Comm’r, Miss. Dep’t of Corr., 947
F.3d 1322, 1336–38 (11th Cir. 2020) (declining to extend
federal trade secret protections or “other protected matter”
protections to disclosure of the identity of maker of
pentobarbital, even in the presence of a state secrecy statute);
In re Ohio Execution Protocol Litig., 845 F.3d 231, 239 (6th
Cir. 2016) (declining to “federalize the Ohio secrecy law as
a common-law privilege for immunity”) .
But even though the information is not “privileged,” as
the district court recognized, requests for information like
these about or related to execution drug suppliers and
execution drugs may impose undue and/or improper burdens
on a state. See First Amend. Coal., 938 F.3d at 1079–80
(noting the right of public access to execution information
did not extend to all minute details of an execution). Other
circuit courts have similarly held that requiring the
disclosure of the identity of the manufacturer of execution
drugs would impose undue burdens on the state. See Jordan,
947 F.3d at 1342; In re: Mo. Dep’t of Corr., 839 F.3d 732,
736 (8th Cir. 2016) (per curiam); In re Ohio, 845 F.3d at
238–39; Va. Dep’t of Corr. v. Jordan, 921 F.3d 180, 192 (4th
Cir. 2019) (affirming a district court’s finding that disclosure
of a manufacturer’s identity would unduly burden the state).
We therefore assess whether the district court abused its
discretion in determining that Plaintiff’s requested
admissions and providing an unredacted Certificate of
Analysis would not impose undue burdens on Defendants.
The district court found that disclosure constituted an
undue burden when the requested information “would, to a
reasonable degree of certainty, identify a person or entity
 PIZZUTO V. TEWALT 27

involved in preparing for, supplying drugs for, or

administering the death penalty in Idaho” (emphasis added).
Defendants challenge this standard as failing to appreciate
the harms caused by disclosure and permitting disclosure of
“ancillary” information that has led to the exposure of
execution drug manufacturers in other states. 9 Defendants
argue that the district court should have instead not required
disclosure when the information “could possibly” identify
the supplier, as articulated by the U.S. District Court for the
Northern District of Georgia in Martin v. Ward, No. 18-cv-
4617, 2021 WL 1186749 (N.D. Ga. Mar. 30, 2021).
Plaintiff asserts that the appropriateness of the district
court’s “reasonable degree of certainty” test is “outside the
scope” of this appeal because the district court made and
applied the test in its July 2023 discovery order. We
disagree. “An interlocutory appeal . . . is moot when a court
can no longer grant any effective relief sought in the . . .
request.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir.
2016) (per curiam). The appropriateness of the district
court’s “reasonable degree of certainty” test is moot for the
disclosures and admissions that Defendants have already
made. See Richmark Corp., 959 F.2d at 1479 (“Compliance
with a discovery order renders moot an appeal of that
order.”). But this issue is not moot for any of Defendants’
obligations to supplement their responses under the July

9
At oral argument, Defendants stated they do not challenge the district
court’s standard but challenged the district court’s request for concrete
examples of how the information would lead to identifying the source of
the execution drugs. Oral Arg. at 1:16–3:05. This conflicts with their
briefing which identifies an alternative standard, and their argument still
challenges the district court’s standard.
28 PIZZUTO V. TEWALT

2023 order or for information requested under the instant

order.
The district court did not abuse its discretion in using its
“reasonable degree of certainty” test. The district court
correctly articulated and applied the standard for a protective
order under Federal Rule of Civil Procedure 26(c). See
Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir.
2010).
First, the district court did not err in finding:

[T]he State of Idaho and its officials have a

strong interest in enforcing the State’s
criminal laws, including its death penalty
laws. And second, that interest will be
harmed if Defendants are forced to disclose
the identity of their execution-drug supplier,
because doing so will presumably make it
more difficult—or impossible—to obtain
execution drugs in the future.

As a matter of law, the district court was correct. These

strong interests of Idaho and other states in enforcing their
criminal laws, including the death penalty, must be given
appropriate consideration by district courts reviewing
execution drug-related discovery requests. But in this
dispute, like in other similar discovery disputes, it is the
evaluation of the need for the requested information and the
effect of granting the requested discovery that determines
whether a state’s strong interests are inappropriately harmed.
The district court also did not err in finding that Plaintiff
has an interest in obtaining information about the drugs that
may be used in his execution. We agree with the district
 PIZZUTO V. TEWALT 29

court that although the State has a strong interest in

protecting the identity of its drug supplier, “that does not
mean Defendants can conceal all information remotely
related to their selection of drugs and drug suppliers.” And
the district court did not abuse its discretion in fashioning its
test to balance the State’s interest against the “marginal
relevance” of the drug supplier’s identity to Pizzuto’s
claims. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063–64
(9th Cir. 2004) (“If a court finds particularized harm will
result from disclosure of information to the public, then it
balances the public and private interests to decide whether a
protective order is necessary.” (quoting Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002))).
We hold that disclosure of information that would
reasonably lead to the identification of the State’s execution
drug supplier unduly burdens the State. Other circuits have
similarly held that the outright disclosure of the identity of a
state’s execution drug supplier or information that “would
jeopardize a state’s ability to implement its death penalty
laws” imposed an undue burden. Jordan, 947 F.3d at 1340;
see, e.g., In re: Mo. Dep’t of Corr., 839 F.3d at 735–37
(finding a “speculative” concern that a supplier would be
identified would not constitute an undue burden while
disclosure of the supplier’s identity would); In re Ohio, 845
F.3d at 239 (noting that if the requested information were
disclosed Ohio “will suffer an undue burden and prejudice”
(emphasis added)); Va. Dep’t of Corr., 921 F.3d at 186, 192
(finding disclosure of documents that “would reveal the
identity of Virginia’s” execution drug supplier imposed an
undue burden (emphasis added)). In contrast to the State’s
proposed standard, no other circuit courts have found
requested information that speculatively or merely could
30 PIZZUTO V. TEWALT

lead to the identification of a state’s drug supplier would

impose an undue burden on the state.
Applying the “reasonable degree of certainty” standard,
the district court did not abuse its discretion in ordering the
disclosures. The district court’s opinion was well reasoned
in articulating why it ordered the disclosures: Defendants
failed to explain, “in concrete terms, how their answers to
the[] particular questions may actually lead to the
identification of their supplier” (emphasis added). The
district court in its July 2023 ruling declined to order the
State to identify the manufacturer of its execution drugs
because that information would, without speculation,
identify the drug supplier. In its March 2024 ruling, the
district court correctly found that Defendants’ “arguments
[were] speculative and conclusory” and that the State had not
“provided any basis for [its] conclusion” that its drug
supplier would be identified.
Defendants again argue on appeal that disclosure of the
requested information could lead to disclosure of the
supplier but again fail to explain why this information would
lead to the supplier’s identity or what information would be
combined with these disclosures to do so. We can only
speculate how Plaintiff’s requested admissions would
identify the State’s drug supplier. The State has provided no
concrete examples of when identification occurred
previously based on information like the information
Plaintiff requested here and has failed to articulate why this
information, in particular, would lead to identifying the
State’s supplier. We are forced to imagine what information,
already available, would be combined with Plaintiff’s
requested admissions to identify the supplier of the State’s
drugs. At oral argument, Defendants asserted that each
disclosure could “link back” to the supplier and that other
 PIZZUTO V. TEWALT 31

sources of information, like Freedom of Information Act

requests could form a “mosaic” to reveal the source from
otherwise “innocuous” disclosures, but this again fails to
detail how these disclosures would lead to the drug supplier.
Oral Arg. at 5:32–9:52; see also Oral Arg. at 12:18–16:16.
Like the district court, we are “left with very little
information about the likelihood that answering these
[requests for admission] would result in the identification of
the drug supplier.”
We recognize that disclosure of any information about
the execution drug supplier might increase the possibility
that it is identified. But given the State’s arguments and
responses here, that risk is purely speculative for the
disclosures ordered by the district court. Without additional
information from Defendants about how or why this
information would lead to the identity of this supplier, we
are left, like the district court, only to speculate. This
speculation is insufficient to support a finding that the
district court abused its discretion in concluding that the
disclosures do not unduly burden Defendants. See Premium
Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229
(9th Cir. 1975) (“Such abuses must be unusual and
exceptional; we will not merely substitute our judgment for
that of the trial judge. A judge abuses his discretion only
when his decision is based on an erroneous conclusion of
law or where the record contains no evidence on which he
rationally could have based that decision.” (citation
omitted)).
Defendants argue that requiring them to demonstrate
how these disclosures would reveal their supplier’s identity
erroneously “shift[s] the burden of persuasion to
Defendants” when Plaintiff should bear the burden of
establishing why the information should be produced. But
32 PIZZUTO V. TEWALT

Plaintiff has shown that the information is relevant. Thus, it

is Defendants’ burden to demonstrate why the disclosures
would constitute an undue burden. See Rivera, 364 F.3d at
1063–64 (“The burden is upon the party seeking” to limit
discovery “to ‘show good cause’ by demonstrating harm or
prejudice that will result from the discovery.” (quoting
Phillips, 307 F.3d at 1210–11)). As the district court put it,
“Pizzuto need not prove a negative by showing that
Defendants’ answers will not lead to the identification of
their supplier. Rather, Defendants must show good cause for
shielding them from Pizzuto’s discovery requests.”
Next, Defendants misunderstand the district court’s
request. The district court found that Defendants failed to
present a chain of events or a set of information that, when
combined with the ordered disclosures, would identify
Idaho’s execution drug supplier. The district court requested
that Defendants provide a way for someone to identify the
drug supplier from the disclosed information to challenge
this conclusion. Defendants failed to do so. Without this
showing, it was not an abuse of discretion for the district
court to conclude that the requested disclosures did not
unduly burden Defendants.
We must set out the limits of our holding. Again, we
start with this correct determination by the district court:

[T]he State of Idaho and its officials have a

strong interest in enforcing the State’s
criminal laws, including its death penalty
laws. And . . . that interest will be harmed if
Defendants are forced to disclose the identity
of their execution-drug supplier, because
doing so will presumably make it more
 PIZZUTO V. TEWALT 33

difficult—or impossible—to obtain

execution drugs in the future.

This strong interest of the State must be considered by every

district court in dealing with execution drug discovery,
including execution drug manufacturer/supplier discovery.
And we are not holding that those who face execution
are always entitled to the challenged discovery Plaintiff
sought here. We are holding that here, Idaho did not show
why the discovery should not be had; that is, that Idaho did
not show, to the requisite degree, how its strong interest in
enforcing its criminal laws, including its death penalty laws,
would be inappropriately harmed or burdened by allowing
the challenged discovery.
AFFIRMED.