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 I