## Facts

- Charles Rodman Campbell, a Washington death-row inmate, pursued federal habeas relief under 28 U.S.C. § 2254 and asserted an Eighth Amendment challenge to execution by hanging.
- While his underlying habeas case was on appeal, another Washington death-row inmate, Westley Allan Dodd, was scheduled to be executed by hanging.
- Campbell sought leave in the district court under Federal Rule of Civil Procedure 27(b), as incorporated through habeas discovery rules, to videotape Dodd’s execution for use as evidence supporting Campbell’s method-of-execution claim.
- The prison superintendent denied permission to videotape the execution.
- The district court denied the motion, finding the videotape’s evidentiary value limited and the intrusion on Dodd’s privacy and related interests substantial, with additional concern about potential public dissemination.
- Campbell appealed the denial of the Rule 27(b) motion.

## Issues

1. Whether the district court had jurisdiction to rule on a Rule 27(b) discovery motion in a § 2254 habeas proceeding after a notice of appeal had been filed in the underlying habeas case.
2. Whether the district court abused its discretion in denying the motion to videotape another inmate’s execution as discovery to support an Eighth Amendment claim.

## Decision

- The Ninth Circuit held the district court had jurisdiction to consider the Rule 27(b) motion despite the pending appeal.
- The Ninth Circuit held the district court did not abuse its discretion in denying the motion.
- The order denying the Rule 27(b) discovery request was affirmed.
- The court treated the grant or denial of a Rule 27(b) motion as a final, appealable order.

## Legal Principles

- In § 2254 proceedings, discovery is permitted only with judicial leave and is committed to the district court’s sound discretion.
- Federal Rule of Civil Procedure 27(b) authorizes limited discovery “pending appeal” and operates as an exception to the general rule that a notice of appeal divests the district court of authority over a case.
- A district court with continuing subject-matter jurisdiction over a habeas matter retains sufficient authority under Rule 27(b) to issue (or deny) extraordinary discovery orders during an appeal.
- In evaluating unusual discovery requests implicating third-party interests, a court may weigh probative value against countervailing concerns, including privacy, dignity, and the risk of improper dissemination.

## Conclusion

The Ninth Circuit concluded that Rule 27(b) permits a district court in a pending § 2254 matter to address extraordinary discovery requests during an appeal, but affirmed denial of a request to videotape an execution because the district court reasonably found limited evidentiary value and substantial privacy and misuse concerns.


Campbell v. Blodgett, 982 F.2d 1356 (9th Cir. 1993)