Pizzuto v. Derrick, et al.

MEMORANDUM DECISION & ORDER - 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GERALD ROSS PIZZUTO, JR.,
Plaintiff,
v.
BREE DERRICK, Director, Idaho
Department of Correction, in her official
capacity; TIMOTHY RICHARDSON,
Warden, Idaho Maximum Security
Institution, in his official capacity; LIZ
NEVILLE, Chief of Prisons, Idaho
Department of Corrections, in her official
capacity,
Defendants.
Case No. 1:21-cv-00359-BLW
MEMORANDUM DECISION AND
ORDER
INTRODUCTION
Before the Court are Plaintiff’s Motion for Leave to Depose Josh Tewalt and
to Compel the Removal of Redactions from the Certificate of Analysis (Dkt. 241),
Defendants’ Motion to Seal Dkts. 207-1 and 207-4 (Dkt. 217), and Plaintiff’s
unopposed Motion to Seal Two Deposition Transcripts (Dkt. 239). The Court will
grant leave to depose Mr. Tewalt and require the removal of the Certificate of
Analysis redactions, but the Order will be stayed for the time being. As far as the
motions to seal, the Court will keep most of the materials temporarily sealed and
give the parties fourteen days to make any additional confidentiality designations.
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 1 of 12

MEMORANDUM DECISION & ORDER - 2
BACKGROUND
Plaintiff Gerald Ross Pizzuto, Jr., brought this action in September 2021 to
challenge the Idaho Department of Corrections’ plan to execute him with
pentobarbital. The past several years have been consumed with discovery disputes,
largely centering on Pizzuto’s efforts to obtain potentially sensitive information
about the IDOC’s lethal drugs. In the meantime, Idaho adopted the firing squad as
the default method of execution, and that policy is set to go into effect on July 1,
2026. Lethal injection will remain the backup method if the firing squad is
unavailable. Executions have been paused since May 2025 due to the renovation of
the IDOC’s execution facilities. In the meantime, discovery has continued in the
present matter and is currently set to close on December 1, 2025.
ANALYSIS
As a threshold matter, Defendants contend that the case is moot because the
firing squad is now the default method of execution in Idaho. In addition to
contesting Pizzuto’s discovery requests on this basis, Defendants recently filed a
motion for summary judgment, which is not yet ripe. Dkt. 244. Pizzuto argues that
this case should instead be stayed while the IDOC renovations are underway,
though he asks the Court to nonetheless issue a decision on the present discovery
issues. Dkt. 246, 247. In the interest of judicial efficiency, and given that lethal
injection remains an authorized method of execution, the Court will rule on the
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 2 of 12

MEMORANDUM DECISION & ORDER - 3
discovery disputes but stay the present Order until the motion for summary
judgment is resolved. Therefore, the current issues will be analyzed within the
Court’s established framework for discovery disputes.
1. Deposition of Josh Tewalt
Pizzuto first seeks leave to depose former IDOC Director Josh Tewalt. The
parties’ Discovery Plan (Dkt. 41) allows for five depositions per side, and Pizzuto
has already reached this limit. Defendants consented to one additional deposition—
of current IDOC Director Bree Derrick—but oppose the deposition of Mr. Tewalt.
Rule 30(a)(2)(A)(i) creates a presumptive limit of 10 depositions per side.
Because Pizzuto stipulated to a lower number, the Court considers his request in
light of both Rule 16(b)(4)’s standard for modifying a scheduling order, which
requires the moving party to show “good cause,” and the factors set out in Rule
26(b)(2). See White v. Gerardot, No. 1:05-cv-382, 2007 WL 608461, at *1 (N.D.
Ind. Feb. 22, 2007). The Rule 26(b)(2) factors are:
whether: (i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery in the action to
obtain the information sought; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account
the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the litigation, and
the importance of the proposed discovery in resolving the issues.
Thykkuttathil v. Keese, 294 F.R.D. 597, 600 (W.D. Wash. 2013).
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 3 of 12

MEMORANDUM DECISION & ORDER - 4
Each of these factors weighs in Pizzuto’s favor. First, the discovery is not
cumulative or duplicative due to Mr. Tewalt’s central role in Idaho executions from
2018 to 2025, when events key to this litigation occurred. For example, Mr. Tewalt
oversaw the failed attempt to execute Thomas Creech in February 2024, and he
gave the IDOC staff instructions, now alleged to be improper, that the execution
chemicals should be refrigerated. Additionally, Mr. Tewalt has allegedly been the
source of inaccuracies in past disclosures, including whether the Central Line
Volunteer was previously designated as the Rescue Doctor, Dkt. 183-5 at 3, and the
expiration date of the Second Set of Execution Drugs, Dkts. 177-3, 138-6. These
misstatements, and other witnesses’ testimony about Mr. Tewalt’s unique
knowledge, indicate that the information sought cannot be obtained from another
source.
Second, Pizzuto has not had “ample opportunity” to obtain the information
sought. Although he has been diligent in seeking discovery—as evidenced by the
numerous motions to compel filed in the past two years—some of the
circumstances necessitating Mr. Tewalt’s deposition have only recently come to
light. Further, Pizzuto has used his limited depositions in a reasonable and strategic
fashion, particularly given the delays in the discovery process resulting from
Defendants’ interlocutory appeal. And, as mentioned above, Pizzuto’s attempts to
use less intrusive discovery devices, like RFAs, have been insufficient or
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 4 of 12

MEMORANDUM DECISION & ORDER - 5
unsuccessful. It was partly Mr. Tewalt’s inaccurate responses to those inquiries that
created the need for a more wide-ranging mode of questioning.
Third, the benefit of the discovery outweighs the burden. A deposition is not
a terribly strenuous undertaking, and Defendants will have the opportunity to
object to any specific questions that could pose an undue burden. Particularly given
the importance of Mr. Tewalt’s testimony and the high stakes of a method-of-
execution case, Pizzuto has shown good cause for the deposition.
Finally, Defendants object to Mr. Tewalt’s deposition under the “apex
doctrine,” which they claim requires “extraordinary circumstances” for the
deposition of high-ranking government officials. The doctrine protects high-
ranking government officials from the “tremendous potential for abuse or
harassment” that comes along with these “apex” depositions. Apple Inc. v.
Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012). When deciding
whether to allow an apex deposition, courts consider “(1) whether the deponent has
unique first-hand, non-repetitive knowledge of facts at issue in the case, and (2)
whether the party seeking the deposition has exhausted other less intrusive
discovery methods.” Empire Lumber Co. v. Indiana Lumbermens Mut. Ins. Co.,
No. 3:10-CV-00533-REB, 2012 WL 6203722, at *1 (D. Idaho Dec. 12, 2012)
(quotation omitted). This is hardly the “extraordinary circumstances” test that
Defendants invoke. Indeed, the case cited by Defendants, In re. U.S. Dep’t of Ed.,
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 5 of 12

MEMORANDUM DECISION & ORDER - 6
25 F.4th 692 (9th Cir. 2022), is not about apex doctrine, but rather constitutional
limitations on the federal judiciary’s authority to scrutinize executive actions.
Assuming that apex doctrine applies to Mr. Tewalt, the deposition remains
justified. As explained above, Mr. Tewalt has unique first-hand knowledge of
important facts related to IDOC execution procedures and execution-related
missteps. And for reasons previously stated, Pizzuto has exhausted less intrusive
options such as RFAs. Therefore, the Court will grant Pizzuto’s request for leave to
depose Mr. Tewalt.
2. Certificate of Analysis Redaction
Pizzuto next asks the Court to order Defendants to remove the redaction of
the “date tested” information on the certificates of analysis. Defendants object
based on execution secrecy concerns.
As the Court has previously and repeatedly explained, the IDOC may
withhold otherwise discoverable evidence if the information “would, to a
reasonable degree of certainty” reveal the identity of the IDOC’s lethal drug
source. The Ninth Circuit has endorsed this approach. Pizzuto v. Tewalt, 136 F.4th
855, 869-71 (9th Cir. 2025). Defendants again ask the Court to adopt a different
standard—protecting all information that “could possibly” identify drug suppliers,
see Martin v. Ward, No. 1:18-cv-4617-MLB, 2021 WL 1186749, at *9 (N.D. Ga.
Mar. 30, 2021)—and the Court will again decline. All Defendants need to do to
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 6 of 12

MEMORANDUM DECISION & ORDER - 7
avoid discovery is to explain how it would lead to the identity of the drug source.
But time and time again, Defendants have failed to even attempt to make this
showing, instead gesturing vaguely at the dangers of John Oliver’s investigative
journalism. That appeal is no more persuasive today.
The Court recognizes that the mosaic of information now acquired by
Pizzuto increases the likelihood that he will identify the IDOC’s drug supplier.
Although the Court has not closely followed his discovery litigation in other
jurisdictions, it does raise concerns about the IDOC’s ability to protect this
sensitive information. But Defendants need to articulate with specificity how the
COA redactions, combined with the other information already obtained, will
actually allow that identification. Broad concerns about “pulling purchase records
for the chemical tested,” Dkt. 243 at 18, are insufficient without an explanation of
how Pizzuto’s knowledge of the testing date would allow him to obtain those
records, or even who he would obtain them from. For this reason, and the reasons
explained the last time this issue was litigated, see Dkt. 123 at 21-23, Defendants
have not met their burden.
Having concluded that the secrecy objection is meritless, the Court turns to
the broader analysis of Rule 26(b)(1), which requires that discovery is relevant and
proportionate to the needs of the case. Defendants did not assert a relevance
objection in response to the discovery request, and the Court agrees that it is
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 7 of 12

MEMORANDUM DECISION & ORDER - 8
waived. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473
(9th Cir. 1992). Regardless, as previously noted, the discovery is relevant because
“the date on which the chemical testing was performed could theoretically bear on
the reliability of the test results or the presence of deleterious intervening
conditions.” Dkt. 123 at 23. Likewise, the information is proportionate given the
nature of Pizzuto’s claims about the reliability of the IDOC’s lethal drugs.
Accordingly, the Court will order Defendants to remove the redactions to the
“date tested” information on the certificates of redaction.
3. Motions to Seal
Finally, the Court turns to the Motions to Seal, which concern Docket 207-1,
207-4, and the deposition transcripts of the Central Line Volunteer and Deputy
Chief of Prisons Liz Neville. The Court has sealed these materials in the interim
while considering the parties’ arguments.
First, Defendants argue that Dockets 207-1 and 207-4 should be sealed
because they reference facts learned at the deposition of the Central Line
Volunteer, which was confidential and attorneys’ eyes only. Pizzuto responds that
he did not file the transcript itself and the facts referenced are not sensitive.
This dispute appears to hinge on whether all information revealed in the
deposition falls under the Protective Order, or only the information so designated
by a party. In general, the Protective Order provides, “Any information . . . that is
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 8 of 12

MEMORANDUM DECISION & ORDER - 9
designated by either Party as CONFIDENTIAL shall not be disclosed to the
general public, the press, or news media.” Dkt. 81 at 3. For depositions, transcripts
are treated as confidential in their entirety for 30 days. Id. at 8-9. After that, only
portions of testimony so designated by a party remain confidential. Id. Additional
protections apply to the deposition of the Central Line Volunteer, and that
transcript is considered “attorneys’ eyes only” for the 30-day period. Id. at 9. But
even for that deposition, the parties were required to actively make confidentiality
designations—either during the deposition or within the 30-day period—for the
transcript to remain attorneys’ eyes only. Id.
When Pizzuto publicly filed Dockets 207-1 and 207-4, the 30-day period
had not elapsed. Thus, any reference to information learned at the deposition
needed to be filed under seal. At this level, the Court agrees with Defendants’
interpretation of the Protective Order. Defendants have been required to produce
very sensitive information, and the Protective Order recognizes the high potential
harm of public disclosure. Thus, the threshold for sealing material is much lower
than the “reasonable degree of certainty” test that the Court has employed for
secrecy objections. Pizzuto must abide by these restrictions in any future filings
referencing confidential deposition materials.
But the 30-day period has now passed without Defendants making any
confidentiality designations. The Court is uncertain whether this is intentional or
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 9 of 12

MEMORANDUM DECISION & ORDER - 10
reflects a misunderstanding of the Protective Order. To err on the side of caution,
the Court will keep Dockets 207-1 and 207-4, as well as the deposition transcript
itself (Dkt. 204-2), sealed for the time being. Defendants shall have an additional
fourteen days from the date of this order to make any confidentiality designations.
The parties shall then submit supplemental briefs of no more than five pages
addressing the significance of those confidentiality designations on Defendants’
Motion to Seal Dkts. 207-1 and 207-4. Alternatively, the Court encourages the
parties to submit a stipulation resolving this matter.
The final request to seal concerns the transcript of the deposition of Chief
Neville. Pizzuto filed the transcript under seal because the 30-day period had not
yet elapsed. Defendants subsequently submitted their confidentiality designations,
Dkt. 242, and Pizzuto then publicly filed a redacted version of the transcript, Dkt.
245-2. Accordingly, the Court will grant the motion to seal the unredacted version
of the transcript.
ORDER
THEREFORE, IT IS HEREBY ORDERED:
1. Plaintiff’s Motion for Leave to Depose Josh Tewalt and to Compel the
Removal of Redactions from the Certificate of Analysis (Dkt. 241) is
GRANTED. This Order is STAYED pending the Court’s ruling on
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 10 of 12

MEMORANDUM DECISION & ORDER - 11
Defendants’ Motion for Summary Judgment.
2. Defendants’ Motion to Seal Dkts. 207-1 and 207-4 (Dkt. 217) is GRANTED
IN PART.
a. Within 14 days of the date of this order, any party wishing to
designate the transcript, or portions thereof, of the Central Line
Volunteer’s deposition as CONFIDENTIAL or ATTORNEYS EYES
ONLY shall notify the court reporter and all parties, in writing, of the
specific pages and lines of the transcript to be so designated.
b. Within 14 days of the submission of those confidentiality
designations, or of the expiration of the deadline for submitting such
designations, the parties shall submit simultaneous briefs of no more
than 5 pages addressing the significance of those designations.
c. In the interim, Dkts. 207-1 and 207-4 shall remain SEALED.
3. Plaintiff’s Motion to Seal Two Deposition Transcripts (Dkt. 239) is
GRANTED IN PART. The unredacted Transcript of Deposition of Liz
Neville (Dkt. 240-2) is SEALED. The Transcript of Deposition of Central
Line Volunteer (Dkt. 240-1) is temporarily SEALED pending the parties’
confidentiality designations and supplemental briefing.
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 11 of 12

MEMORANDUM DECISION & ORDER - 12
DATED: November 18, 2025
_________________________
B. Lynn Winmill
U.S. District Court Judge
Case 1:21-cv-00359-BLW Document 249 Filed 11/18/25 Page 12 of 12