Melendres v. Arpaio #1353 Sept 4 2015 TRANSCRIPT - Status Conference

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
Plaintiffs,
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vs.
Joseph M. Arpaio, et al.,

Defendants.
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(Status Conference)
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Court Reporter:
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Phoenix, Arizona
September 4, 2015
9:07 a.m.
BEFORE THE HONORABLE G. MURRAY SNOW
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No. CV 07-2513-PHX-GMS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
A P P E A R A N C E S
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For the Plaintiffs:

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq. - Telephonically
39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation

Immigrants' Rights Project
By: Andre Segura, Esq. - Segura - Telephonically
125 Broad Street, 18th Floor
New York, New York 10004
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Covington & Burling, LLP

By: Stanley Young, Esq.
By: Michelle L. Morin, Esq. - Telephonically
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
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University of California Irvine School of Law

Immigrants' Rights Clinic
By: Anne Lai, Esq.
401 E. Peltrason Drive, Suite 3500
Irvine, California 92697
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Mexican American Legal Defense and Educational Fund

By: Jorge M. Castillo, Esq. - Telephonically
634 S. Spring Street, 11th Floor
Los Angeles, California 90014
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For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
Iafrate & Associates
By: Michele M. Iafrate, Esq.
649 N. 2nd Avenue
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CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference
Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq. - Telephonically
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
By: Charles W. Jirauch, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.
P.O. Box 20527
For the Movants Maricopa County Attorney's Office and Maricopa

County Attorney William Montgomery:
Ridenour Hienton, PLLC
By: Ernest Calderon, Esq.
Chase Tower
For the Intervenor United States of America:
United States Department of Justice - Civil Rights
By: Paul Killebrew, Esq. - Telephonically
By: Puneet Cheema, Esq. - Telephonically
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
United States Department of Justice - Civil Rights
By: Cynthia Coe, Esq. - Telephonically
601 D. Street NW, #5011
Washington, D.C. 20004
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For Deputy Chief Jack MacIntyre:

Dickinson Wright, PLLC
By: David J. Ouimette, Esq.
1850 North Central Avenue, Suite 1400
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For Chief Deputy Gerard Sheridan:

Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq. - Telephonically
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: Greg S. Como, Esq.
For Lieutenant Joseph Sousa:
David Eisenberg, PLC
By: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003
For Timothy J. Casey:

Adams & Clark, PC
By: Karen Clark, Esq. - Telephonically
520 E. Portland Street
Also present:
Chief Robert Warshaw, Monitor - Telephonically
Commander John Girvin, Deputy Monitor- Telephonically
Chief Raul Martinez, Deputy Monitor - Telephonically
Raphael O. Gomez, Esq. - Telephonically
Chief Deputy Gerard Sheridan
Lieutenant Joseph Sousa
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P R O C E E D I N G S
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Please be seated.
THE CLERK:
This is CV 07-2513, Melendres, et al., v.
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Counsel, please announce your appearances.
MR. YOUNG:
Good morning, Your Honor.
Stanley Young,
Covington & Burling, for plaintiffs.
THE COURT:
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THE COURT:
Arpaio, et al., on for status conference.
MS. LAI:
Good morning.
Your Honor, Anne Lai for the plaintiffs,
THE COURT:
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Good morning.
MS. IAFRATE:
Michele
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Iafrate on behalf of Sheriff Joseph Arpaio and the unnamed
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alleged contemnors.
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09:07:45
MR. MASTERSON:
Good morning, Judge.
John Masterson
and Joe Popolizio for Sheriff Arpaio.
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THE COURT:
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MR. WALKER:
Good morning.
Richard Walker
and Charles Jirauch for the County as previously defined in
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prior appearances and filings with this Court.
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MR. COMO:
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09:07:56
Greg Como on
behalf of Brian Sands, who's waived his appearance today.
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THE COURT:
Good morning.
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MR. WOODS:
Terry Woods, Your Honor, for the
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ACLU of Arizona, cooperating attorney.
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09:08:13
nonparties Stutz and Liddy.

THE COURT:
Good morning.
MR. EISENBERG:
David
Eisenberg making a special appearance on behalf of Lieutenant
Joseph Sousa.
He is present.
THE COURT:
MR. OUIMETTE:
09:08:24
Good morning.
MR. EISENBERG:
Good morning.
David
Ouimette specially appearing for Deputy Chief MacIntyre.

THE COURT:
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Good morning.
MR. CALDERON:
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09:08:32
Ernest Calderon
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on behalf of Maricopa County Attorney Bill Montgomery and his
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office.
THE COURT:
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Good morning.
Who do we have on the phone?
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CHIEF WARSHAW:
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09:08:44
This is
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Chief Warshaw, and also on the phone is Chief Martinez and
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Commander Girvin.
THE COURT:
I'll tell you, Chief --
MS. WANG:
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It's Cecillia
Wang from the ACLU for plaintiffs.
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appearing telephonically are Andre Segura of the ACLU, Michelle
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Also for plaintiffs
Morin of Covington & Burling, and Jorge Castillo of MALDEF.
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THE COURT:
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MR. McDONALD:
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Good morning.
Anybody --
This is Mel
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McDonald making a special appearance for Sheriff Joe Arpaio.

I am also standing in for Lee Stein and Barry
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Mitchell, who had conflicts, who are making special appearances
for Chief Jerry Sheridan.

MR. KILLEBREW:
This is
Paul Killebrew, Puneet Cheema, and Cynthia Coe, appearing for
plaintiff intervenor United States.

MR. GOMEZ:
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This is Raphael
Gomez appearing for the United States regarding the Montgomery

file.
09:09:48
MS. CLARK:
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Karen Clark, ethics
counsel for Tim Casey.
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THE COURT:
Do we have anybody else on the phone?
All right.
I will tell you that we could hear
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everybody on the phone here except for Chief Warshaw, couldn't
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hear you very well, so if you're going to participate, I'll ask
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you to speak up.
left kind of in the hopper last week.
I told you that I would
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ask you to check to see if there were any new documents, any
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other material you found that were responsive either to
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discovery requests or to the monitor's inquiry, and you
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indicated you'd do that and let me know if you found anything
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else this week.
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Mr. Masterson, I'm going to try and review what we
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MR. MASTERSON:
I did not, Judge.
There was one
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document that concerned me, and that was a two-page memo
from -- we discussed it last week -- the former government
employees who took a look at some of the Montgomery materials,
and I'm informed that that has been disclosed.
only document I was concerned about.

THE COURT:
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09:10:57
In addition to the 60 or 65 new
MR. MASTERSON:
THE COURT:
Correct.
And those have been given, I think you
said last week, an IA number.

MR. MASTERSON:
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That was the
identifications that you talked about last week?
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09:11:10
That's correct, and the IA
investigation is ongoing at this time.

THE COURT:
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I will tell you, and I think we discussed
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this last week, you were going to -- the monitor has
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requested since the 1500 documents were provided to the Court,
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the monitor has requested what IA number and/or investigations
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are associated with those documents.
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that you'd find that out: whether there was an IA
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investigation; what the number was.
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THE COURT:
You indicated, I believe,
Well, I did part of that.
09:11:46
There is an ongoing investigation.
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Interviews are being conducted.
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number, Judge.
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anyone who wants to know know the number.
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All right.
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I apologize.
I forgot to find out the
I can find that out today and let

09:11:57
THE COURT:
All right.
Thank you.
We discussed --
and this, actually, I discussed, I think, with Ms. Iafrate --
you were going to check to see if there were any records
pertaining to referrals by non-HSU MCSO personnel to ICE or
Border Patrol, or requests to supervisors to make immigration
arrests.
MS. IAFRATE:
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I did do that, Your Honor, and I wrote
Ms. Wang a letter indicating that there are no documents or way
to track those prior to when TracS was implemented in 2014.

I was advised that someone made some statements
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regarding the LEAR policy, and that that -- the LEAR policy
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required that this be done, and I inquired regarding the policy
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section, SID, CID.
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and they informed me that there is no such documentation or
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tracking mechanism to determine when Border Patrol or ICE was
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contacted, or when deputies contacted the supervisor, other
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than if it would be in a DR, and they would all need to be
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hand-reviewed.
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MS. IAFRATE:
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I do.
I apologize.
And they'd all have to be hand-reviewed?
MS. IAFRATE:
Yes.
So early on, Judge, what we
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discussed was that data dump that was provided with some coding
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so that the more likely cases that would fit the scenario
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When you say "DR," you mean departmental
report?
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09:12:39
I talked to everyone regarding this issue,
THE COURT:
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could -- that the ACLU and Covington & Burling could then
determine which DRs they wanted to look at, based on the CAD
data dump that I provided to them.

THE COURT:
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this?
Ms. Wang, do you have anything to say on
09:13:50
MS. WANG:
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Yes, Your Honor.
To clarify, there were
two categories of documents that the Court ordered MCSO --
rather, the defendants -- to search for:
reflecting contacts between deputies and supervisors where
One was documents
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there was some detention pursuant to the LEAR policy, and the
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other was any documents reflecting contacts between MCSO
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personnel and federal immigration authorities that would also
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tend to suggest that there was some detention for -- based on
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immigration status.
Ms. Iafrate has just stated what defendants' position
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is on those documents.
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deposition testimony by Sergeant Brett Palmer back in 2010.
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testified that pursuant to the Human Smuggling Unit's LEAR
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protocol, such contacts and detentions pursuant to the LEAR
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protocol should be documented either in a field investigation
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card, known as an FI card, or in a narrative section for an
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informational report.
He
09:14:53
We have asked Ms. Iafrate to produce a copy of that
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LEAR protocol that Sergeant Palmer described.
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document in the pretrial disclosures by the defendants, and we
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We had pointed specifically to
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09:14:08
We had no such
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would like to see that.
try to get some documentation along these lines, but we do want
to see a copy of that LEAR protocol.

THE COURT:
THE COURT:
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Any problem with that, Ms. Iafrate?
MS. IAFRATE:
We will follow up with Ms. Iafrate to
No, Your Honor.
All right.
09:15:43
We discussed the ongoing
production of the specified MCSO archived PST files.

Have those all been produced?
MS. IAFRATE:
No, Your Honor, they have not.
We
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finished our review on Wednesday and sent it over to the
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County's vendor to process.
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them.
They have processed batches of
They are still processing.
I received an e-mail from the vendor on Monday that
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said as long as we -- meaning my firm and Jones, Skelton --
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provided all of our review documents by Wednesday night --
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which we actually finished early on Wednesday -- that they
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would definitely get the rest produced by Friday.
That's the last comment that I had received.
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THE COURT:
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I do
All right.
Who's speaking on this for
MR. YOUNG:
Mr. Young here, Your Honor.
We did get 5,200 or so files on Wednesday; we had
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gotten on August 28 about 2,000 files.
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there were 16,000 documents that were being reviewed for
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plaintiffs?
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09:16:22
know that they have continued to be produced.
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09:16:00
As I understand it,
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privilege only, which suggests to me that we haven't gotten to
the halfway point yet with the production of those PST-archived
documents.
THE COURT:
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What do you want me to do about it,
Mr. Young?
09:17:16
MR. YOUNG:
Well, Your Honor, these are documents
that, to the extent they pertain to the issues that were listed
in the February 12 order, should have been turned over in
February; they should have been turned over for the hearing in
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April; they were supposed to be turned over, under your most
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recent order, by August 21; they've not been turned over.

We are doing the best we can.
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We have a hearing
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that's set to begin on September 22nd.
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that are scheduled now mostly to take place in the time
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between -- well, all, mostly -- in the time between now and
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then, some of them just a day or two or three before the
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beginning of the hearing.
We have depositions
stated earlier, it may be that even things that they give us
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this week, if we haven't had a chance to look at them before
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the 22nd, we're going to have to bring witnesses back in order
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to get to the bottom of things.
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09:18:00
There are a lot of unanswered questions in this case.
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We don't know what happened to the Palmer training scenario,
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for example.
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We're going to do our absolute best, but as I've
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That was, to the extent we know about it, in
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e-mails.
There may be more e-mails that talk about that, I
don't know.
There will be other issues that are going to be
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illuminated by the further document production, and regardless
of where it leads us, we're going to get to the bottom of it.
And that requires getting these documents, and that may require
bringing witnesses back to the stand and/or for depositions
after they've gone in this next round.
say.
THE COURT:
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All right.
So that's all I can
And I think I indicated before
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that as long as you can demonstrate to me that you just
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recently got the documents and didn't have time to process
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them, I'm going to -- my inclination will be to allow that.
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get them produced and to get them processed as quickly as
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possible, but I recognize that there are a lot of documents and
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you're dealing with some time pressures, so I'll accommodate
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you if it's necessary.

MS. IAFRATE:
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one.
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e-mails and attachments, it would take longer for plaintiffs
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thinking of changing the production a little bit with this last

We've been using Dropbox.
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09:18:58
Your Honor, just one further, that we're
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09:19:15
If we were to drop that many
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and other parties to download them -- probably over the
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weekend -- completely, if they would be done by Monday.
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I appreciate the continued efforts of both sides to
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09:18:29
So we're recommending that potentially people provide
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us with thumb drivers or zip drives, or we could provide them
on their, so that people can have them the instant that they're
processed.
MR. YOUNG:
Well, I'm here today, Your Honor.
I'd be
happy to take that thumb drive or a zip drive or whatever and
we'll make whatever arrangements.
I do think that since it's Ms. Iafrate and
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her colleagues who know what they're going to give to us, that
they provide us with the actual media on which they're going to
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produce their material, rather than our giving it to them.

THE COURT:
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Well, that will be fine.
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They said they'd get it to you today.
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Mr. Young today.
MS. IAFRATE:
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parties.
You're here.
Let's get it to
I actually was referring to the other
Of course we were going to give them to plaintiffs.
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interested, they have been requesting some of these as well,
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and so I would encourage them to participate as well.

THE COURT:
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Mr. Young, you raised last week a possible issue
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immunity document production.
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pertaining to attorney-client privilege and/or work product
MR. YOUNG:
Yes.
09:20:36
We had raised an issue with respect
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to some documents on a log that had been provided by the
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Maricopa County Attorney's Office.
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All right.
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09:20:06
If any other nonparties or other attorneys are
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Ms. Iafrate and I spoke
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about that this morning and I believe we have come to an
agreement on that.
There may be other issues relating to Mr. Casey, and
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as to those I will defer to Ms. Wang to note whether there are
any remaining issues.
privilege issues, but production issues, but I'll defer to
Ms. Wang on that.
THE COURT:
MS. WANG:
I know there are some not necessarily
Ms. Wang.
Thank you, Your Honor.
We've had a lengthy
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correspondence going three ways between Ms. Iafrate, Ms. Clark,
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and plaintiffs, and I think we do have a couple of issues ready
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to tee up for Your Honor to address.
09:21:33
Overall, Your Honor, I just want to point out that
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Mr. Casey -- as Ms. Clark, I'm sure, will explain -- has
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recently discovered, I think as of yesterday, discovered
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additional documents that he, I believe, has just logged this
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morning and provided to us, but I've not had a chance to look
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at that log yet.
The situation is this.
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been very clear throughout our correspondence over the subpoena
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and document requests to him that he will not produce any
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client file for this case to Ms. Iafrate's office, and he has
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09:21:53
Tim Casey turned over a paper
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documents to plaintiffs pursuant to our document request
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without an express waiver of any privilege issues and direction
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from Ms. Iafrate.
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Ms. Iafrate has, as recently as September 2nd, taken
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the position that she is not going to produce anything,
although she now has in her possession Tim Casey's paper client
file.
So what plaintiffs are seeking from the Court is a
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clear order that both Tim Casey and defendants, to the extent
that either of them has documents responsive to our document
request, produce the relevant documents or log any documents on
which they're claiming privilege.
Second, Your Honor, we have not received any documents
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relating to the pretrial discovery violations, which we did
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request from Mr. Casey.
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and again deferred to Ms. Iafrate for direction on whether to
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disclose those documents or not.
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privilege log from Ms. Iafrate for the Casey client file that
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is now in her possession.
09:23:14
He has logged a number of documents
And we do not have any
09:23:41
Third, Your Honor, we believe that the Court's order
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of May 14th, 2015 finds that there has been a subject matter
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waiver of any attorney-client privilege or work product
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protection over documents relating to violations of the
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preliminary injunction order.
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documents, including unredacted copies of Tim Casey's billing
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09:24:03
There are a number of those
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entries, notes by Mr. Casey, communications by Mr. Casey to
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co-counsel or to his client and then-client, on the subject of
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the preliminary injunction order, and those documents have not
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been produced.
Fourth, Your Honor, there are a number of documents
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listed on a privilege log that Ms. Iafrate created that reflect
communications between Mr. Casey and Chief MacIntyre, or where
Chief MacIntyre was a recipient.
Court's prior orders, those documents also should be disclosed.
We believe that under the
And finally, Your Honor, I believe Ms. Iafrate has
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acknowledged this, but Chief Sheridan did waive communications
with Christine Stutz relating to -- rather, I should say that
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we believe that on the record it was clear that there was no
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privilege attached to communications between Chief Sheridan and
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Christine Stutz as to the events of May 14th, 2014, or that any
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such privilege has been waived by Chief Sheridan.
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Ms. Iafrate has acknowledged that, but we still do not have
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documents fitting that category.
I believe
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now order both Mr. Casey and defendants to disclose all
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documents in their respective possession in those categories.

THE COURT:
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MS. CLARK:
09:25:54
Judge, I believe that Ms. Wang has
accurately recited to you what the issues have been between
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plaintiffs, Ms. Iafrate, and me on behalf of Mr. Casey.
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Obviously, he's got ethical and legal duties not to release
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documents unless he either gets a written direction from
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09:25:35
Ms. Clark, do you wish to be heard on
this?
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09:25:14
So to sum up, Your Honor, we would ask that the Court
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Ms. Iafrate on behalf of his former client, or court order.
And he's stuck between that rock and that hard place.
cannot violate his legal and ethical duties, but he certainly
will comply with any written direction from Ms. Iafrate, or he
will certainly comply with any order from this Court.

THE COURT:
MS. IAFRATE:
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09:26:35
Ms. Iafrate.
First of all, regarding Chief Sheridan's testimony
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All right.
He
regarding his communication with Christine Stutz, that was not

an overall waiver of all communications regarding anything.
THE COURT:
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Let me just say, and I will say to sort of
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shortcut this, as I recall that testimony, he indicated that
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when he was speaking, I think, with Chief Trombi and Christine
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Stutz, that he neither sought nor did he receive legal advice.

MS. IAFRATE:
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Correct.
That was his testimony.
That
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is not an overall -- what I hear plaintiffs saying that I
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agreed to, which I did not, was that any communication that
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Christine Stutz authored somehow is now waived, which is -THE COURT:
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-- not accurate.
Ms. Wang, do you want to be heard on that?
23
recollection of Deputy Chief Sheridan's testimony was, and to
24
me, that does not constitute a subject matter waiver.
FR
25
09:27:30
Because I will say that I've just indicated what my
IEN
22
THE COURT:
09:27:17
All right.
MS. IAFRATE:
DS
20
09:26:56
It may constitute a waiver with respect to that
09:27:44
conversation.
applicable, and I think we had this discussion at the time.
It's not a waiver, because the privilege is not
MS. WANG:
Your Honor, to clarify, we don't believe
that there was a subject -- a broad waiver of any
communications with Ms. Stutz.
communications between Chief Sheridan and Christine Stutz
relating to the events of May 14th, 2014 have been waived.

THE COURT:
MS. WANG:
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Our position is that
Well, I'm not sure --
Or rather, the description of Ms. Stutz's
role in those events made it clear that there was no privilege.

THE COURT:
11
09:28:18
Well, I will agree that there is no
12
privilege in the conversation specified.
13
example, that Ms. Stutz didn't participate in the earlier
14
meetings, and I'm not going to find a general subject matter
15
waiver with respect to those meetings.
But I'm not sure, for
09:28:42
Do you understand what I'm saying?
16
MS. WANG:
17
THE COURT:
18
I do understand, Your Honor.

All right.
So I do not believe, and I
19
haven't -- I don't know that I've made a ruling one way or
20
another.
21
Ms. Iafrate's argument -- or when Ms. Iafrate asked, I think it
22
was Chief Deputy Sheridan, I can't remember who, maybe it was
IEN
DS
I think that I said that I was not convinced that
23
Sheriff Arpaio, that the attorneys were silent, I think my
24
comment was that silence of counsel is not the same thing as
25
advice of counsel.
FR
09:28:02
So while it got pretty close to the
09:28:52
09:29:13
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question, I wasn't going to rule that that was a subject matter
waiver, and I have not so ruled.
However, it's clear to me, Ms. Iafrate, that that
3
4
conversation is not privileged.
MS. IAFRATE:
I understand, and that was your ruling
at the time, Your Honor.
I'm contesting this overall anything that Christine Stutz
participated in --
THE COURT:
THE COURT:
11
And I'm not contesting that ruling;
Right.
MS. IAFRATE:
10
-- or authored.
09:29:41
Do you have any problem preparing a
12
privilege log to the extent there are any documents between
13
Ms. Stutz and the client?

MS. IAFRATE:
14
THE COURT:
15
It was already done.
All right.
So have you completely
16
identified all communications between Ms. Stutz and the client
17
in the privilege log?
18
MS. IAFRATE:
THE COURT:
19
21
23
Do you have any dispute as to that,
09:29:59
Not at this time, Your Honor.
information when we depose Chief Sheridan.
24
THE COURT:
25
MS. IAFRATE:
FR
I think that
what we should do is pursue this and try to develop more
IEN
22
MS. WANG:
09:29:51
Yes.
Ms. Wang?
DS
20
09:29:32
All right.
Okay.
So that was number one.
I'm actually going backward, if
09:30:13
that's okay.
THE COURT:
Sure.
MS. IAFRATE:
Okay.
So the next one is the privilege
log regarding Chief MacIntyre's communications.
already ruled on that that anything authored or sent to Chief
MacIntyre is not privileged.
THE COURT:
The judge has
That is your ruling, whether I agree
with it or not.
THE COURT:
10
Right.
MS. IAFRATE:
11
09:30:34
But Your Honor, the privilege log that
12
Ms. Wang is talking about -- you and I discussed this last
13
week -- this log was prepared by Mr. Casey's attorney, and then
14
I commented on whether further things should be revealed or
15
not.
16
relates to Jack MacIntyre, anything that related to
17
Jack MacIntyre I said should be disclosed.
I did the same thing with the County's e-mails, and as it
THE COURT:
18
All right.
MS. IAFRATE:
19
I don't know if it has been or not,
21
were addressed to the County.
22
THE COURT:
IEN
DS
because the subpoena duces tecums weren't addressed to me; they
All right.
09:31:06
So you have authorized
Mr. Casey to disclose --
24
MS. IAFRATE:
25
THE COURT:
FR
09:30:52
So it has been?
20
23
09:30:23
I think that's correct.
MS. IAFRATE:
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9
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Yes.
-- anything -- any communication sent to
09:31:12
Chief MacIntyre.
MS. IAFRATE:
THE COURT:
3
4
Yes.
All right.
Do you need anything more than
that, Ms. Clark?
MS. CLARK:
Well, Judge, we had asked Ms. Iafrate --
the correspondence were between the three of us, with others
copied as well, but Ms. Wang, Ms. Iafrate, myself, and we
repeatedly asked for written direction.
documents flying around, there's privilege issues, waiver
10
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There are a lot of
issues, and we have asked for written direction.
09:31:40
I'll take notes, and I'll certainly review the
11
12
transcript of today's proceeding, and we're getting it on the
13
record and that is all good and what Mr. Casey has been looking
14
for.
15
authorization for any releases, and that's for obvious reasons.
But up to today we had been asking for written
MS. IAFRATE:
16
Your Honor, that has been done.
18
comments were things such as this:
Court already deemed no
19
attorney-client privilege applies.
Court already deemed no
20
attorney-client privilege applies.
I gave the authorization of
21
if you believe that this is privileged, it's already been ruled
22
on and no privilege applies.
IEN
DS
was given a privilege log from Mr. Casey's attorney.
THE COURT:
Okay.
My
09:32:14
I think it's pretty clear here that
24
you are directing Mr. Casey that he can -- he can and should
25
provide, pursuant to the Court's ruling --
FR
09:31:56
So I
17
23
09:31:22
09:32:27
MS. IAFRATE:
THE COURT:
2
3
-- documents on which he corresponded with
MS. IAFRATE:
THE COURT:
sufficient.
All right.
Ms. Clark, that's going to be
Your Honor, regarding the May 14, 2015
subject matter waiver regarding violations of the preliminary
10
injunction, I wasn't tracking that argument.
11
opportunity to further speak with Ms. Wang regarding -THE COURT:
12
THE COURT:
14
I would like an
-- that issue.
I will say that I do believe that I have
15
already determined that because of -- I think Sheriff Arpaio
16
indicated a number of different reasons, but one that I think
17
immediately comes to mind, I think he invoked advice of counsel
18
as a defense, and I think I did rule.

MS. IAFRATE:
19
Well, that's fine; you may do so.
But I
23
look and find that I did rule that there was a subject matter
24
waiver.
FR
25
09:33:20
will tell you that there's no need to argue if you go back and
IEN
22
THE COURT:
09:33:02
I do recall that topic, but I would like
to further review the specifics before I argue on that point.
DS
21
09:32:51
Right.
MS. IAFRATE:
13
20
09:32:36
Okay.
MS. IAFRATE:
Correct.
It's on the record.
MS. CLARK:
Correct.
or copied Chief MacIntyre.
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MS. IAFRATE:
Understood.
09:33:32
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THE COURT:
And I believe that I did so rule as it
pertains to advice given on the preliminary injunction.
go back and review that myself, because I do find that my
memory's not always perfect, but I believe Ms. Wang has
correctly characterized my ruling.
I'll
09:33:48
Did you want to be heard on that, Mr. Young?
MR. YOUNG:
Well, yes, and I agree with Your Honor's
statement.
And I did discuss this with Ms. Iafrate, and my
understanding is that the May 14 ruling is the reason for the
10
agreement I mentioned earlier with respect to the items on the
11
MCAO log.
12
Ms. Iafrate has, I may want to bring -- I may want to discuss
13
that issue more, because I don't want there to be any
14
misunderstanding as to what we've talked about.
And if there's some question about that that
MS. IAFRATE:
15
Your Honor, if you could believe it, we
16
had reached an agreement before court regarding those documents
17
that Mr. Young requested.
18
to discuss.
I don't know what further there is
attorney, and said, We're going to give up these documents.
21
I don't know why we're further having this conversation --
DS
20
IEN
THE COURT:
MS. IAFRATE:
24
THE COURT:
FR
So
09:34:38
All right.
23
25
09:34:22
I talked to Mr. Calderon, who is the County's
19
22
09:34:02
-- regarding 1 through 48.
Okay.
I will not assume that there's any
bad faith on anybody's part; it's just some difficulties in
09:34:49
communication.
other very often, and if this can be resolved, let's resolve
it; if not, we'll take it up next Thursday.
MR. YOUNG:
Very well.
Thank you.
It was resolved.
I'm satisfied, based on what
THE COURT:
All right.
MR. YOUNG:
Thank you.
MS. IAFRATE:
Thank you.
Regarding new e-mails, Your Honor, from
Mr. Casey, I'm not aware of that issue.

THE COURT:
11
09:35:11
I'm sorry, the what?
MS. IAFRATE:
12
The new e-mails that were recently
13
discovered by Mr. Casey, Mr. Young mentioned it in the hallway
14
right before we walked in.
15
know, so I can't comment on that.

THE COURT:
16
Okay.
That's the first notice that I
09:35:23
Let me just say -- well, I'll let
17
you finish, and then I wasn't quite sure I understood exactly
18
one or two aspects of what Ms. Wang said, so I'll seek
19
clarification if I need to.

MS. IAFRATE:
DS
20
Okay.
And then, Your Honor, the
correspondence that has been going around and around has been
22
dealing with a subpoena duces tecum to Mr. Casey.
IEN
21
direction had always been:
24
However, I do hold the privilege on behalf of my client.
FR
THE COURT:
09:35:34
And so my
23
25
09:35:03
Ms. Iafrate has now said.
10
Fortunately, or unfortunately, we see each
MS. IAFRATE:
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I do not represent Mr. Casey.
Um-hum.
09:35:55
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MS. IAFRATE:
And therefore, any document production
pursuant to that subpoena duces tecum would be the
responsibility of Mr. Casey and his attorney.
participated to the extent that my client does not waive the
privilege.
he waives the privilege and Mr. Casey can give everything up.
So as far as the further documents that are being sought from
Mr. Casey, I would recommend that we follow the same procedure,
which is to go through Mr. Casey's attorney, and then for me to
I have
That's why he did not give a written letter saying
10
review regarding whether there's any privilege that should or
11
could be waived.
THE COURT:
12
All right.
extent that you may have documents that are no longer in
14
Mr. Casey's possession, I assume that you are providing those,
15
to the extent that I've ordered production.

MS. IAFRATE:
production, yes, Your Honor.
18
THE COURT:
Okay.
And that would apply with these new
documents as well, if in fact they're documents that are in
20
your possession.
DS
19
THE COURT:
23
24
FR
25
09:36:48
MS. IAFRATE:
IEN
22
09:36:38
To the extent that you have ordered
17
21
09:36:26
But the problem is to the
13
16
09:36:08
Correct.
All right.
MS. IAFRATE:
But I don't know what those documents
are.
THE COURT:
I understand that.
I understand that.
09:36:53
I'm just trying to set forth the clarification for you to
proceed and --
MS. IAFRATE:
THE COURT:
Very well.
-- to resolve this matter.
MS. IAFRATE:
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I think that that's all the issues that
I wrote down, unless there's something that I missed.

THE COURT:
Well, I want to make sure that I
understand something, and Ms. Wang talked about new documents
that have just been discovered, which we just talked about; and
10
then she talked about documents that pertain to pretrial
11
discovery violations.
12
the boxes of documents that were discovered in early November
13
that Mr. Casey was going to review and turn over and then did
14
not turn over?
MS. WANG:
15
16
clarity.
09:37:15
And I wasn't sure, are we talking about
No, Your Honor.
I'm sorry for the lack of
09:37:35
The subpoena duces tecum that we served on Mr. Casey
17
asks for three categories of documents:
One is relating to
19
communications between Mr. Casey and his then-client relating
20
to the preliminary injunction order; the second is documents
21
relating to the production of video or audio recordings during
22
the pretrial discovery period; and the third was documents
IEN
DS
18
23
relating to the events of May 14, 2014, and the collection of
24
video and audio recordings.
25
categories of documents we requested from Mr. Casey track the
FR
09:37:03
09:37:56
So in essence, the three

09:38:19
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three grounds for contempt outlined in the order to show cause.

We have received no documents relating to that second
2
3
category of production of video and audio recordings during the
pretrial discovery period.
privilege log on that subject, but we have received no
documents whatsoever from either defendants or from Mr. Casey
on that topic.
Ms. Clark did provide us with a
09:38:39
The other point I want to make, Your Honor, in
8
9
response to what Ms. Iafrate just said, is that Mr. Casey has
10
taken the position that he turned over his entire client file
11
to Ms. Iafrate and it is now in her possession, and he did not
12
retain a copy of that client file.
He has now discovered some electronically stored
13
14
documents which, as I understand it, may be a subset of that
15
paper client file that is now in Ms. Iafrate's possession.
16
to my knowledge, we have had no documents produced by
17
Ms. Iafrate's office in response to the subpoena to Mr. Casey.
18
And that is the overarching issue on which plaintiffs are
19
seeking the Court's guidance and an order, because I don't
20
believe Ms. Iafrate thinks she has any obligation to search and
21
turn over documents that were in Mr. Casey's client file but
22
that are now in her possession.
But
DS
IEN
23
09:39:21
09:39:45
So essentially, plaintiffs have been in a situation
24
where Mr. Casey has pointed us to Ms. Iafrate and Ms. Iafrate
25
has not produced documents.
FR
09:38:58
09:40:03
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THE COURT:
Ms. Iafrate.
MS. IAFRATE:
Your Honor, as related to the subpoena
duces tecum, that is correct.
addressed to Mr. Casey and was handled by Mr. Casey's attorney.

THE COURT:
The subpoena duces tecum was
All right.
To the extent that you have
Mr. Casey's documents, would you please -- I guess I'm
directing you -- either prepare a privilege log or produce any
documents in the file that he gave you that pertain to the
request in the subpoena duces tecum.

MS. IAFRATE:
10
THE COURT:
11
09:40:36
All right.
Does that clarify the issue, Ms. Iafrate?
12
MS. IAFRATE:
13
THE COURT:
14
MS. WANG:
15
MS. CLARK:
16
17
Very well.
Ms. Wang.
I'm sorry.
Ms. Wang?
Yes, Your Honor.
Thank you.
May I understand, then, whether there's
MS. WANG:
Your Honor, plaintiffs' position is that
Mr. Casey should continue to search, because we don't know
20
whether there are any documents that he's recently discovered
21
that are electronically stored that are not in that client file
22
he turned over.
IEN
DS
19
09:41:05
In other words, there may be a nonoverlap, and
23
we believe that Mr. Casey has an independent obligation to
24
search for those documents.
FR
09:40:46
anything that Mr. Casey is required to produce at this time?
18
25
09:40:17
MS. CLARK:
Judge, if I can just clarify that, I'm
09:41:26
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sure it's quite confusing to hear, and I heard you specifically
ask --
THE COURT:
Do you know what, Ms. Clark?
you're going to need to slow down.
to speak --
6
7
8
Ms. Clark,
You're going to need
09:41:37
MS. CLARK:
Oh, sorry.
THE COURT:
-- more loudly and more distinctly for
those of us who are on this end of the line.

MS. CLARK:
I'm very sorry, Judge.
I'm sure it's
10
quite confusing to hear that there are newly discovered
11
documents, and I heard you specifically ask that question of
12
what they are, so let me provide some clarity on that.
It's absolutely accurate that -- what Ms. Wang just
13
14
said that the entire hard copy file was produced to
15
Ms. Iafrate.
16
e-mails or any documents that may have been attached to
17
e-mails.
My understanding is what we're talking about are
all e-mails on a monthly basis.
When that was done and
20
complete -- I'm guessing it was coinciding with his billing
21
cycle -- they would then delete the e-mails from his office
22
server.
IEN
DS
19
09:42:25
So a complete set of the hard copies of the e-mails,
23
which included any attached documents to e-mails, was provided
24
to Ms. Iafrate in December of 2014.
FR
09:42:08
Mr. Casey's firm practice was to print hard copies of
18
25
09:41:48
When Mr. Casey received the first subpoena from
09:42:49
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plaintiff asking him to produce documents, he did a search on
his computer, his electronic storage system at his office, and
that -- he provided a log on what was found on the server that
still remained after those deletions occurred which I've just
described.
09:43:14
What happened Wednesday, two days ago, was that he
6
7
discovered that due to some storage problems at his office,
electronic storage problems, a certain amount of sent e-mails,
only sent e-mails, were saved -- taken off the Internet server
10
system and saved on a hard drive.
Mr. Casey discovered that on
11
Wednesday.
12
happened.
13
yesterday -- he described that for Ms. Wang.
He's very embarrassed by that fact, but that's what
We got on the phone -- he and I and Ms. Wang
This morning, just before the hearing, I sent Ms. Wang
14
and copied Ms. Iafrate a log containing the e-mails that he
16
located on that external hard drive.
17
understand, it is indeed, as Ms. Wang has said, a subset of the
18
e-mails that have already been produced to Ms. Iafrate, and
19
that there is complete overlap.
20
call scheduled with Ms. Wang and Mr. Casey to go over the log
21
and ensure that that is the case.
DS
15
THE COURT:
IEN
22
All right.
But obviously, we have his
24
is any other materials that may be responsive.
FR
09:44:28
Well, I'll expect that that
hard drive will be assessed to determine whether or not there
MS. CLARK:
09:44:03
And as far as I
23
25
09:43:40
Absolutely, Judge.
09:44:46
THE COURT:
MS. WANG:
Anything else pertaining to these issues?
No, Your Honor, not from plaintiffs.
We do plan to continue to meet and confer with
3
4
Ms. Clark and Ms. Iafrate.
we will plan to discuss with them, but those are not yet teed
up for the Court.
THE COURT:
7
8
I assume you're
the man who's going to cover this, or the person.

MR. MASTERSON:
09:45:22
At least the guy that's going to
attempt to cover this.

THE COURT:
13
All right.
MR. MASTERSON:
14
I've had a few phone conferences with
15
Mr. Gomez from the Department of Justice, Mr. Walker was
16
included on at least one of those, and yesterday we received a
17
proposal on dealing with the hard drives for Mr. Gomez.
should have brought more than one copy and I did not.
20
Mr. Young has it; Mr. Walker has it.
09:46:09
May I give it to your clerk, and the Court can take a
IEN
look at it as well?
23
THE COURT:
24
MR. MASTERSON:
25
MR. YOUNG:
FR
I know
DS
19
22
09:45:38
I didn't see it till this morning, and I've -- I
18
21
09:45:03
Have we arrived at factual stipulations
Mr. Masterson, you're standing up.
11
12
There are some other documents that
regarding the 50 hard drives?
9
10
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Sure.
(Handing to clerk).
Your Honor, may we get some clarification?
09:46:50
Is what Mr. Masterson handed you Mr. Gomez's Thursday
1
2
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e-mail of 1:32 p.m. Pacific time, plus an attachment?

THE COURT:
No.
It's Mr. Gomez's e-mail -- well, it's
an e-mail string, I'm sorry, so maybe it is.
The first e-mail
appears to be an e-mail from Mr. Gomez to Ms. Wang, to you, to
Mr. Masterson; to rkw@azlawpartner, whoever that is.
And then there is a response -- then there is a second
7
8
e-mail from Mr. Gomez to the same persons September 3rd at
4:32 p.m.
And then just an indication to Mr. Girvin from the
10
monitor's office that he meant to include him on this e-mail at
11
2:12 p.m.
12
up very well, but those are the dates and times that I have on
13
the copy given me from Mr. Masterson.
09:47:44
I guess it doesn't seem to me like these times match
Let me just say, before we move to Mr. Gomez's
14
15
suggestion, Mr. Masterson, it seemed to me when you identified
16
the two documents last week that there was -- you know, there's
17
no dispute now, or at least -- and I don't mean to misstate
18
something, so if I misstate something, don't hesitate to
19
correct me.
20
the 50 hard drives given by Mr. Montgomery to the MCSO; there's
21
no dispute that Mr. Montgomery said that those contained the
22
secure information, or confidential information that he had
DS
IEN
09:48:04
But there's no dispute that the 50 hard drives are
23
acquired from his contract work for the government that enabled
24
him to reconstruct certain files; that the MCSO had looked at
25
those files, or had, you know, had at least engaged those two
FR
09:47:12
09:48:22
09:48:51
gentlemen to look at the files, and that they don't find any
such material on the files.
Are those matters stipulated to?
I know that some of them are stipulated to; you've
4
5
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already stipulated.
09:49:09
MR. MASTERSON:
That's my understanding.
I guess the
difficulty I have, and I think I explained it to the Court
before, is I don't personally know any of this information.
mean, I know that those are the 50 hard drives that Montgomery
10
provided.
11
Montgomery has or claims he took, I don't know that.
12
that the hard drives in the marshal's possession are the
13
hard drives that were examined by the two folks we discussed
14
last week, and I know what -- I know what that two-page memo
15
says from those two gentlemen.
THE COURT:
18
I know
I know those --
would you be uncomfortable doing so?

MR. MASTERSON:
I'm a little bit uncomfortable,
because I don't really understand what they're saying, other
22
than these do not appear to be any e-mails from a
IEN
21
23
09:49:53
governmental-type source.
24
THE COURT:
25
I'm just wondering, I mean, and I guess what I was
FR
09:49:46
Do you mind characterizing that for me, or
DS
20
09:49:24
Which is?
MR. MASTERSON:
17
19
Whether those are all the hard drives that
THE COURT:
16
Okay.
09:50:08
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wondering last week, is to the extent that they may involve --
you know, the United States Government I think may have an
issue to the extent they wish to confirm that, in light of what
Mr. Montgomery told whoever he told that the MCSO was the
source of those documents.
09:50:25
As it pertains to this litigation, it seems to me that
6
7
if you're going to take the position that there's material in
those hard drives from which Montgomery could have produced --
and I don't think you've ever taken a position that this is
10
true -- but if you're going to take the position that there's
11
material within those hard drives from which you are asserting
12
Montgomery could have produced the schematics and the
13
time lines, I think it's your duty to come forward and show us
14
where that is.
MR. MASTERSON:
15
16
We are not going to take that
09:50:56
position.
THE COURT:
17
Okay.
MR. MASTERSON:
18
And I think I revealed before, and the
only problem I'm having with all the -- I would love to say,
20
Everybody, you can look at it to your heart's content.

Two things prevent me from doing that:
don't think that --
24
THE COURT:
25
with respect to that, do you?
FR
23
09:51:07
Number one, I
don't want to pay for it; number two is privilege issues.
IEN
22
DS
19
21
09:50:42
Well, you don't have any privilege issues

09:51:17
MR. MASTERSON:
THE COURT:
2
3
My clients might, because what --
I can't see it.
Tell me how they might
have any privilege issues.

MR. MASTERSON:
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Because what was communicated, at
least in part, was my law firm's e-mail system was hacked.

THE COURT:
Oh.
MR. MASTERSON:
So if that's true -- and I don't think
it is, but if it is, then there's untold numbers of client
communications that could be on those hard drives.

Do I believe that to be the case?
10
THE COURT:
11
THE COURT:
13
Absolutely not.
Okay.
That if it contains -- if it in fact
14
contains material which you're not claiming that it does
15
contain, there is the potential privilege.

MR. MASTERSON:
16
Exactly.
That seems pretty reasonable to
18
me, although I still don't think we need to look at any of it.
19
But if someone feels we have to look at some of it, I'm okay
20
with Mr. Gomez' proposal, except it doesn't help me when --
21
because when you get down to one of the paragraphs, after we
22
reach an agreement on search terms, and if responsive documents
IEN
DS
what Mr. Gomez has proposed.
23
are identified, then the U.S. would conduct an expedited
24
review.
FR
THE COURT:
09:51:58
And that's why I'm fine with
17
25
09:51:47
I get your point now.
MR. MASTERSON:
12
09:51:30
Can you point me to the number, please?
09:52:14
09:52:29
MR. MASTERSON:
1
2
own copy.
3
4
It's maybe number 5 down --
MR. YOUNG:
I think it's item 8, Your Honor.
THE COURT:
8?
THE COURT:
6
again?
5 through 8, or 8?
Oh.
09:52:49
So what's your problem, Mr. Masterson,
MR. MASTERSON:
8
9
No, I can't, because I didn't bring my
(Pause in proceedings.)
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My problem is I completely understand
the United States' position that if there are classified
10
materials on there, they want to see what those classified
11
materials are, and they would prefer that I did not see those
12
classified materials.
13
complete sense to me.
I understand that, and that makes
The problem I have is if the United States looks at
14
15
the documents first and there are client-protected materials in
16
there, then I'm not going to know that, and I can't really go
17
get -- I can't talk it over with my clients, because it's not
18
as simple as me walking to Chief Sheridan and saying, Hey, is
19
it okay if we let the United States -THE COURT:
DS
20
How about we do this?
How about we do
this?
22
words that would be indicative that your attorney-client
IEN
21
09:53:23
09:53:40
When you identify key words, why don't you identify key
23
communications have been identified or are contained in those
24
documents?
25
further order of this Court before it reviews those documents.
FR
09:53:07
And if they are, then the United States must seek

09:54:04
And then they can give me some -- me and you both some
specificity regarding the -- sufficient specificity regarding
the contents to see if this is actually an attorney-client
communication or something different.

Would that work?
MR. MASTERSON:
6
7
8
9
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09:54:20
That would work.
THE COURT:
Any problem with that, Mr. Gomez?
MR. GOMEZ:
Your Honor, I think we could work with
that, but I think that a simple way of just dealing with this
10
is just having a protective order, and similar to a clawback
11
order I -- it's done in many, many cases.
12
at the Department of Justice in the Civil Division.
We've done it here
I'm not sure if Mr. Masterson identified certain key
13
14
words that he believes is going to identify privileged
15
information, we're not really going to know whether it's
16
privileged or not, and there may be some documents that are
17
responsive to that key word search.
18
Mr. Masterson is proposing, at that point we would come and ask
19
to be able to look at that first.
Our problem is, you know, key word searches are, you
know, kind of a broad tool, and you may actually get documents
22
responsive to, you know, the intended search, but you may also
IEN
21
23
pull other documents.
24
just do a, you know, a privilege order and we move from there.
25
I mean, there is a real possibility that there may not be any
FR
09:54:59
If I understand what
DS
20
09:54:31
09:55:13
And so I would just recommend that we
09:55:43
documents that are going to be responsive to the key word
search, but --
THE COURT:
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Well, do you have a problem with that,
Mr. Masterson?
MR. MASTERSON:
I thought of clawback immediately, and
the difficulty, as I was starting to explain to the Court, is
typically, when you engage or enter into a clawback agreement,
you're dealing with a specific client, specific documents, and
I can go to the client and say, Hey, we're going to turn over a
10
whole bunch of ESI materials to the other side, but we have
11
this clawback in case there's some privileged materials in
12
there:
They can't use them; we'll get them back.
14
I don't know where I would start with who to go to, because it
15
could be hundreds, thousands of clients.

THE COURT:
16
09:56:32
Well, how about this, though?
I mean, you
don't think, I gather nobody really thinks, that there's any
18
information in there, as indicated by Mr. Montgomery.
19
that's case, the United States -- and that seems to be most
20
likely the case -- if in fact anything is discovered, then why
21
wouldn't a clawback work?
DS
17
IEN
MR. MASTERSON:
No, I think it would.
23
would work, Judge.
24
approval from a client to do that.
FR
25
09:56:13
Here, in this situation, if any of this stuff is true,
13
22
09:55:54
THE COURT:
If
09:56:54
I think it
I'm just saying you really can't get
Well, I understand, but why don't we
09:57:08
proceed that way.
to make it clear to you, Mr. Gomez, that a clawback means a
real, real clawback.
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5
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And then, if there are any issues, I'm going
And you can't --
MR. GOMEZ:
Yes, Your Honor.
THE COURT:
-- use, you've gotta disgorge anything
that you find that may at all be responsive.
procedures for you to disclose that to, for example,
Mr. Masterson and/or the Court in camera, we can do that at the
time.
10
And if we need
But a clawback is a real clawback; they're not going to
be able to use that for any purpose whatsoever.

MR. MASTERSON:
11
THE COURT:
12
So we'll proceed with that.
Now, my position is still we don't
need to look at any of this stuff, but -THE COURT:
15
I get it.
And, you know, I've made clear
that if -- and I think you've made clear -- that if it was your
17
position that you think there's anything in there from which
18
Montgomery could have constructed these time lines and
19
schematics that he has apparently constructed, it's your
20
obligation to disclose that.
21
anything in there from which he could have constructed those
22
things.
IEN
DS
16
23
MR. MASTERSON:
And your position is there isn't
09:57:51
09:58:08
Well, we're certainly not going to go
24
look for it.
25
look at 50 hard drives that --
FR
09:57:39
Thank you, Judge.
All right.
MR. MASTERSON:
13
14
09:57:19
We don't think there is, and I'm not going to

09:58:17
THE COURT:
All right.
And I'm making it clear that
if there is anything, it's your responsibility to produce it.
You've had those hard drives for a year or more; you've had
experts looking at them.
you believe they may have said, and I'm not going to impose
that burden on you if you don't want to take it, but I'm just
making that clear.
MR. MASTERSON:
THE COURT:
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I accept that your experts say what
Absolutely.
All right.
Thank you, Judge.
So we can proceed with DOJ's
10
proposed process for examination of the 50 hard drives with the
11
clawback procedures as Mr. Gomez has proposed and as is
12
acceptable to Mr. Masterson.
that?
All right.
15
We had some discussion about deadlines for
interrogatories and requests for admission.
17
me, as I've said before, that in light of the monitor's
18
interviews that everybody has copies of, in light of the issues
19
like the one we just discussed, there may be whole areas that
20
we can just arrive at stipulations, and so it does seem useful
21
to me to go through this exercise to the extent we could save
22
some time in the upcoming hearings.
IEN
23
Did we arrive at agreement on those?
24
MR. YOUNG:
FR
09:58:57
It does seem to
DS
16
25
09:58:43
Is there anybody else who wants to say anything on
13
14
09:58:31
09:59:15
I think on the interrogatories and
requests for admission, Mr. Segura has been having some
09:59:31
discussions, and I would defer to him.

THE COURT:
MR. SEGURA:
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Mr. Segura.
Good morning.
This is Andre Segura.
Defendants have proposed a response date of September
5
6
15th.
to the 15th and would just ask that the Court issue an order to
that effect.
We had originally proposed the 10th, but we are amenable
THE COURT:
Is that correct?
MR. MASTERSON:
10
THE COURT:
11
Yes, Your Honor.
All right.
09:59:56
So I'm going to order that the
12
responses to the interrogatories and requests for admission be
13
filed by the 15th of September.

MR. YOUNG:
14
Now, Your Honor mentioned other fact
15
stipulations.
16
There have been certain agreements of fact that Sheriff Arpaio
17
and Chief Sheridan entered into in March of -- or filed in
18
March of this year.
19
further agreements as we get into the hearing.
20
actually just started depositions for this latest round.
23
24
FR
25
10:00:11
I suspect that we may try to enter into
We're still --
10:00:35
So it's still very early, but hopefully we can reach
those, and we'll work as hard as we can to try to get as many
IEN
22
I don't think we're as far advanced on that.
DS
21
09:59:40
of those factual issues resolved as possible.

THE COURT:
All right.
I did receive Ms. Clark's, and
I assume all parties and specially appearing parties received
10:00:52
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Ms. Clark's notice about having no objection to doing the
deposition on the 16th of Mr. Casey in the courthouse, and so I
will tell you that I have arranged for Room 306A to be the room
for the deposition.
you to bring in your --
10:01:14
Were you going to video this one?
6
7
to video this one?
MS. WANG:
It's large enough, and has the ability for
Is somebody going
I can't remember.
Yes, Your Honor.
I think we'll reserve
that possibility.
THE COURT:
10
All right.
Well, there's room to do a
11
video.
12
which the grand jury convenes.
13
grand jury convening, but that doesn't mean there won't be.
14
And if there is, we're not going to do it in that room, we will
15
do it probably in a courtroom, most likely Courtroom 606, and
16
we'll just set up in the courtroom.
Well, Judge, yes.
THE COURT:
And why would my presence be necessary for
MS. CLARK:
10:02:01
And, Judge, of course, Mr. Casey's very
23
cognizant of your time and wouldn't make that request lightly,
24
but it does seem that it's going to be very difficult to
25
imagine any questions that are not going to involve either
FR
10:01:47
the entire deposition?
IEN
22
MS. CLARK:
DS
21
There is no currently scheduled
through the entire deposition, is that correct?
19
20
However, Room 306A is the room next to the room in
Ms. Clark, you in your notice said you want me to sit
17
18
10:01:26
10:02:23
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attorney-client privilege or work-product privilege or the
much, much, much broader category of client confidentiality,
which I know Your Honor understands very well.
And so if he is unable to answer -- I mean, client
4
5
confidentiality, under ER 1.6, is all information relating to a
representation, so much farther than privilege and any of the
issues that have been addressed, which is document production
issues, which are related to privilege.
is so broad, it's just very difficult for me to imagine how
10
it's not going to apply to virtually all the questions he's
11
going to be asked.
12
that question by question by question by question.
And so because ER 1.6
10:03:05
So we're going to have to have decisions on
And maybe things will run smooth in a way that are not
13
14
as I'm and Mr. Casey are envisioning them, but that is how we
15
do envision it now, and that's why we're requesting Your
16
Honor's presence.
THE COURT:
17
All right.
19
calendar, but if I have to leave, we'll see how depositions
20
go -- the deposition goes.
21
require me to be present all the time every time, I'm going to
22
depart, and then you can call me back if need be.
DS
so if I have -- I will do my best to clear the rest of my
IEN
10:03:23
Well, it's at the courthouse,
18
And if in fact it's not going to
23
Does anybody have any concern on this?
24
Mr. Masterson, did you have a concern about this?
25
I'm not saying you have to have one; I'm just giving
FR
10:02:42
10:03:42
10:03:59
you an opportunity.
MR. MASTERSON:
I have so many concerns.
a concern other than was expressed by Ms. Clark.
there's so much more than just privilege -THE COURT:
I mean,
10:04:15
-- and work product that's going to be
involved here.
THE COURT:
8
9
I don't have
Okay.
MR. MASTERSON:
6
7
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I'll try to be there, I'll try to work it
out, if that's the parties' view.
I did raise last time, and I will raise it again just
10
11
to make sure that Magistrate Judge Boyle doesn't have to be
12
there, but Magistrate Judge Boyle, although he held that there
13
was an attorney-client privilege waiver and a partial waiver of
14
the work-product immunity, held that there was still
15
work-product immunity in a letter from Mr. Casey to -- I
16
believe it was the sheriff -- that was in November of 2013
17
relating to the Grissom investigation.
18
time.
19
past rulings, that pertains to the Grissom investigation.
20
identified the only possible areas I could think of.
We covered this last
I think there is very little relevancy, in light of my

I
plaintiffs are going to ask about that letter, and you want to
23
attack the last rul- -- or have Judge Boyle or anybody revisit
24
his rulings which have left work-product immunity intact as to
25
part of that letter, you're going to have to tell me so that I
FR
10:05:08
But if anybody wants to ask about that letter, if
IEN
22
10:04:44
DS
21
10:04:23
10:05:31
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can see if Judge Boyle can be there, or at least is available.
So I think plaintiffs need to make that decision early on, and
I think you indicated last week you don't have any issues with
that.
MR. YOUNG:
5
6
THE COURT:
MS. WANG:
10
All right.
Ms. Wang.
Yes, Your Honor.
We do not plan to ask
about that letter or any other -- we don't, in general, plan to

ask about the Grissom investigation by the sheriff.
THE COURT:
11
MS. WANG:
12
13
Ms. Clark, of that.
14
THE COURT:
10:06:00
All right.
And I'd advised Mr. Casey, through
I'm just going to raise some issues now
that I think are worth thinking about now.
16
a couple of weeks ago, suggested that we come up with something
17
like a joint final pretrial order for this next round.
18
think that there is merit to that, although it may be something
19
that we kind of have to hammer out after you've done whatever
20
depositions you're going to do.
21
think that you might want to consider and talk amongst
22
yourselves how you can do this mutual disclosure to each other
IEN
DS
15
But Mr. Masterson,
10:06:13
And I
And so I would just, though,
23
and to the Court before the hearings begin.
24
to have merit, and it also might facilitate a discussion of the
25
factual stipulations that we've already raised in this matter.
FR
10:05:45
think we did cover this last time, Your Honor.
I'll defer to Ms. Wang on this, but I
10:06:27
It does seem to me
10:06:49
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It would be a time saving for everybody.

MR. YOUNG:
We will definitely have those discussions,
Your Honor.
As I've said, the documents, and, therefore,
potential exhibits, are coming in.
scheduled on September 21, the day before our hearing begins.
We'll do as much as we can even before that, but I have a
feeling that we're going to be talking about these things up
until very close to the time the hearing begins.
We've got a deposition
But we understand the Court's need in terms of order
9
10
and having things laid out.
11
talk with counsel for defendants about witnesses and witness
12
order, so that everyone can be here, but we will definitely
13
have that discussion.

THE COURT:
14
Obviously, we're going to have to
All right.
filed, the morning of, a brief related to Maricopa County's
16
role in this litigation.
17
I don't know if any party plans to respond, but Mr. Walker does
18
address the paragraph of the Ninth Circuit opinion which is
19
most relevant to me in his order, which is, to quote it:
20
remand, the district court may consider dismissal of Sheriff
21
Arpaio in his official capacity because, quote, an official
22
capacity suit is, in all respects other than name, to be
FR
25
I hadn't read it.
10:07:44
I've read it now.
On
DS
IEN
24
10:07:25
Last time Mr. Walker had
15
23
10:07:05
10:08:11
treated as a suit against the entity, meaning Maricopa County.

I guess that Mr. Walker's motion, if the -- I don't
know if the plaintiffs intend to respond, or if the defendants
10:08:32
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intend to respond, the other parties.
I would presume that if
we were to dismiss Sheriff Arpaio in his official capacity, it
would not prevent in any way, for example, my holding the
sheriff in contempt, if I determined that that was appropriate,
and/or any of the individual non-contemnors; it wouldn't change
the nature of his representation, I wouldn't presume.

But it might change your role considerably,
7
8
Mr. Walker, and it might not, depending upon what happens.
so it just seems to me that now that Mr. Walker has filed that
And
10
motion, if this is going to be addressed, now is the time to
11
address it.
motion?
MR. YOUNG:
14
We do plan to file a paper with respect to
15
that, and I believe it's due September 14.
16
closely at it, and I think we'll reserve our response to
17
that paper.
THE COURT:
18
IEN
22
THE COURT:
10:09:24
Any other party --
Your Honor, the United States, as
All right.
10:09:41
Anybody else?
That was Mr. Killebrew, I believe, I'm sorry.
23
If you're on the phone --
24
MR. KILLEBREW:
25
THE COURT:
FR
We are looking
plaintiff intervenor, also plans to respond.
DS
21
All right.
MR. KILLEBREW:
19
20
10:09:13
Does any other party plan to address Mr. Walker's
12
13
10:08:53
Yes, Your Honor.
-- please --
10:09:50
MR. KILLEBREW:
THE COURT:
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3
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I'm sorry I didn't identify myself.
Yes.
If you would identify yourself, if
you're on the phone, before you speak.

All right.
Last time Mr. Killebrew indicated that the
DOJ would like to hire an expert for what I interpreted at that
time to be an expert on Internal Affairs investigations, and he
just sort of raised it.
your response, which at least initially was negative.
own response was that, you know, the monitor has, for some
I just asked you, Mr. Masterson, for
And my
10
number of months, been tracking the MCSO's internal
11
investigations with the idea of assessing -- or doing a report
12
to assess their adequacy.
13
anybody.
14
finish that report.
And that my initial reaction is we would have him

He would serve as that expert.
16
be heard on the question.
17
that question?
MR. KILLEBREW:
18
Your Honor, this is Paul Killebrew for

What we assume the
20
monitor will do is issue a report on the adequacy of the
21
investigations and the compliance with the Court's orders.
DS
the United States, plaintiff intervenor.
10:11:00
IEN
What we have in mind for an expert is a little bit
23
different.
24
The expert would be opining on if -- if the monitor identifies
25
deficiencies in those investigations, an expert would
FR
10:10:47
Does anybody wish to be heard on
19
22
10:10:28
I don't think that's news to
But I do want to provide all parties an opportunity to
15
10:10:01
It wouldn't be sort of redoing the monitor's work.
10:11:21
identify -- would opine on the kinds of remedies that would
prevent those kinds of deficiencies in the future.

THE COURT:
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4
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Well, Chief Warshaw, was that a subject
that you had envisioned in your report or not?

CHIEF WARSHAW:
Your Honor, I would be commenting on
the efficiency and sufficiency of the investigation, and would
be addressing in one form or the other nationally accepted
police practices, and the measure to which there are
disparities in any of our observations of MCSO's practices, and
10
how they may differ from nationally accepted police practices.
addressing that.
13
14
all?
15
THE COURT:
Do plaintiffs wish to be heard on this at
MR. YOUNG:
Well, Your Honor, I don't know that it
16
would be harmful to receive additional information.
17
no -- so we would not object to the United States' proposal.

THE COURT:
18
Well, I still am not particularly
20
chief -- Chief Warshaw's investigation is ongoing, and by its
21
nature has to be as we've identified new identifications and
22
other matters, it may be that we can wait and see if this
DS
favorably inclined, but it does seem to me that because the
IEN
10:12:25
There's
19
23
really turns out to be an issue after we've taken what the
24
parties are preparing to go forth with in terms of the
25
depositions that are at issue.
FR
10:12:10
So to answer the Court's question, yes, I would be
11
12
10:11:43
So we'll address that.
10:12:47
10:13:11
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I'll keep the possibility open, but I do have some
1
2
sympathy with the view that this has been a very long matter.
And while remedies may or may not be appropriate, we'll get a
pretty clear idea if remedies need to be appropriate after we
do this next round of the hearing, and we can -MS. WANG:
Your Honor -- I apologize.
10:13:39
It's Cecillia
Wang.
decision on the government's proposal to call an expert witness
until after we've received the monitor's report, just so we
10
And I think that it does make sense to defer any
know, all the parties know what we're dealing with.
I would point out that one additional reason that it
11
12
may make sense for the government -- or for the plaintiffs, for
13
that matter -- to want to put on additional evidence going to
14
the proper remedy on internal accountability issues is that we
15
have seen cases, I believe the Court has cited a few,
16
indicating that the monitor, as an arm of the Court, is not
17
subject to discovery.
heard and present evidence on proper remedies for deficiencies
20
in the MCSO's internal accountability provisions and practices,
21
we may want to do that, and so we would want to reserve the
22
ability to make that request until after we've gotten the
IEN
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24
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10:14:24
And so to the extent that all the parties wish to be
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23
10:14:00
10:14:42
monitor's report.
THE COURT:
And I take it by what you're saying you
wouldn't object to defendants, then.
As Mr. Masterson pointed
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out last week, it complicates the procedure insofar as
defendants clearly would be able to hire their own expert as
well.
fairest way to handle it, but I'll keep that open as we
proceed.
And maybe that's -- as you point out, that may be the
10:15:16
But certainly, if I'm going to allow the plaintiffs or
6
7
the plaintiff intervenors to hire an expert, I'm going to
extend the same privilege to the defendants and/or anybody else
who might want to be heard on the issue.
Also, of course, I've had you hold open quite a number
10
11
of days throughout October and early November, hoping that we
12
could resolve this.
13
days doesn't mean that I want them all to be exhausted with
14
this.
15
to address this question, which may be the best way to proceed
16
after we determine it, it seems to me that Mr. Masterson's
17
point is correct that we would have to continue probably into
18
later November at least, to give both experts a chance to --
19
well, we don't -- we still don't know exactly what the
20
monitor's report time is, but we get the monitor's report and
21
then we've got to give both experts a chance to evaluate that
22
and do disclosure and do another round of depositions, so we
24
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Just because I've had you hold open the
And certainly if we're going to give both sides experts
DS
IEN
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10:15:28
10:15:50
10:16:09
need to be thinking about that.

I did raise with the plaintiffs last week, and I did
notice that you've noticed Lieutenant Sousa's deposition for
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another round, but I did note last week that Lieutenant
Sousa's -- we heard him testify.
going to need to look at your current discovery, but he did
testify what I thought was -- and there was some documentary
evidence that suggested that he was only with the HSU for I
think four months after -- maybe not, sometime in April 2012 he
was transferred out of the HSU, and that during those four
months he was working on implementation plans for the
preliminary injunctive order.
And I understand if you're
And it just seems to me that if
10
that was the case, I'm not sure that there's a basis to hold
11
him in civil contempt, and because of the ongoing nature of
12
this matter, I just asked all parties to consider whether or
13
not there was a basis to keep him in this case.
to?
16
17
Honor.
18
10:17:33
MR. YOUNG:
Ms. Wang will address that issue, Your
THE COURT:
Ms. Wang.
MS. WANG:
19
Your Honor, we have not been able to make
that assessment.
21
out to me on this issue, and I assured him we will do our best
22
if there's any movement that can be made on this front.
IEN
DS
20
I did speak with Mr. Eisenberg, he reached
understand the position that Lieutenant Sousa and Mr. Eisenberg
24
are in.
FR
10:17:39
We
23
25
10:17:16
Have plaintiffs made that assessment yet, been able
14
15
10:16:53
But we don't have the full production of the PST
10:17:58
files, and as to not only Lieutenant Sousa, but, you know,
perhaps other witnesses, there may well be additional
information on their role and what happened after the
preliminary injunction order issued.
Your Honor, but because we don't have the documents from
defendants, we're not able to make that assessment at this
time.
THE COURT:
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All right.
So we'll do our best,
10:18:16
I will ask you to continue in
the best of faith to see if there -- I mean, again, I'm open to
10
your -- certainly open to your review of all the documents that
11
you've requested and a chance to look at them to determine if
12
there is a basis.
13
the testimony is that lieutenant -- at least my current
14
understanding is that Lieutenant Sousa was only over the --
15
only remained over the HSU for a period of three or four months
16
after I issued the preliminary injunction order, and that
17
during that time he was at least preparing training and
18
implementation, which was never implemented, but which was
19
designed to implement the preliminary injunction.
21
Ms. Iafrate?
10:19:06
I did have
23
conversation with Ms. Wang, as she said, earlier this week.
24
client's deposition is set for Tuesday, the 15th of September.
25
Perhaps by that time, after they've had a chance to go over
FR
10:18:51
Mr. Masterson?
MR. EISENBERG:
IEN
22
But I will outline that my understanding of
Do you want to be heard on this, Mr. Eisenberg?
DS
20
10:18:33
My
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that deposition, may make a determination as to whether to keep
him in the case.
Your Honor's correct in terms of your assessment of
3
4
what Lieutenant Sousa did during that short period of time that
he was still with HSU.
Sergeant Palmer's help, scenarios.
off to Mr. Casey.
further contact about that issue.
completely explored before Your Honor.
You may recall that he created, with
10:19:46
Those scenarios were sent
Subsequently he left and later on had
I'm not sure that's been
In any event, I'll be in attendance at that deposition
10
11
as well as a few others.
12
that I think are very pertinent to my client, and no other
13
depositions.
THE COURT:
14
THE COURT:
16
17
they wish to raise?
18
MR. YOUNG:
I'm going to limit myself to those
All right.
MS. IAFRATE:
15
Thank you.
Nothing from us further, Your Honor.
All right.
10:20:22
Do the parties have new issues
Your Honor, I think there is a privilege
issue arising out of a deposition that happened yesterday, and
20
Mr. Segura will address that issue, as I understand it.

THE COURT:
MR. SEGURA:
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THE COURT:
All right.
Yes, hi.
10:20:34
Mr. Segura.
This is Andre Segura.
You know what, Mr. Segura?
Again, when
24
you speak on the telephone, you've gotta speak very slowly and
25
very distinctly; otherwise, it's difficult for us to hear.
FR
10:20:07
So
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please slow down and speak as clearly as possible.

MR. SEGURA:
I apologize, Your Honor.
A dispute has
come up regarding privilege issues involving some meetings with
MCSO employees and counsel in which the recently discovered
1400 identifications were discussed.
privilege over what is discussed during those meetings.
believe that privilege has now been waived.
We
up during Captain Bailey's deposition on Tuesday, as he was
10
also present.
11
deposition, aren't prepared to address the merits now, but
12
wanted to just alert you, Your Honor, that we may need to seek
13
your guidance on how to proceed on that on Tuesday.
We just reviewed the transcript on yesterday's
THE COURT:
14
All right.
16
Mr. Masterson or Ms. Iafrate.
17
I would expect -- I realize that it may require a quick
18
briefing, but I'd expect both parties to have a full
19
opportunity to brief this question so I can consider it
20
carefully.
IEN
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hear from you.
22
I don't know who's addressing this,
10:21:59
But before I would rule on this
10:22:18
Mr. Masterson?
Or Ms. Iafrate?
It looked -- whoever.
MR. MASTERSON:
I disagree with the Court.
I have not
23
seen the transcript of the deposition, so I want to see the
24
specific questions that were asked, the testimony that was
25
given, and I think this is an important issue that needs to be
FR
10:21:39
Well -- and I'll certainly
15
21
10:21:14
I just wanted to alert you to this because it may come
8
9
Defendants have asserted
10:22:36
briefed by the parties before it's decided by the Court.

THE COURT:
Okay.
And I agree with that.
I appreciate you raising it, Mr. Segura, and we'll
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address it if we need to as we proceed.

MR. SEGURA:
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THE COURT:
Any other issues?
MR. YOUNG:
One more informational point, Your Honor,
to correct something that we said earlier.
has filed a summary judgment motion.
Former Chief Sands
We plan to oppose that
10
motion.
11
that that due date was September 6.
12
11.
13
Mr. Como.
14
be receiving anything on September 6 on that motion from us,
15
but we'll do so on September 11.
I believe at an earlier status conference we stated
10:23:06
It is actually September
We've communicated our understanding in that regard to
So I just want to let the Court know that it won't
THE COURT:
16
All right.
10:23:23
Thank you.
Mr. Masterson.
17
MR. MASTERSON:
18
I have just a couple things, Judge,
and you covered most of them.
Number one on my list was the
20
pretrial order, and I really want to get something done here.
21
And I understand there's depositions going up to the day before
22
we start.
IEN
DS
19
10:23:38
But it looks like we're going to staging these
23
proceedings, at least in some fashion, so I think I'd like a
24
list of witnesses and exhibits and the issues we're going to be
25
dealing with at least for the first few days as soon as
FR
10:22:47
10:23:52
possible.
THE COURT:
You know, I'd expect mutual disclosure by
both sides, and it seems to me -- let's see.
is the 10th.
we have one on the 18th.
THE COURT:
Our next status
It's Thursday instead of Friday, right?
MR. MASTERSON:
And then
10:24:06
Yes.
It seems to me that we could be pulling it
together and definitely have something solid in place by the
18th.
MR. MASTERSON:
10
THE COURT:
11
THE COURT:
13
THE COURT:
15
The second issue is --
Oh, I'm sorry.
-- just so we're clear, it's mine, I'm
You indicated you've got a deposition on the 21st?
18
19
MR. YOUNG:
Yes, Your Honor.
THE COURT:
So I am going to be a little flexible with
respect to whoever is being deposed on the 21st, but
21
otherwise -- and/or I don't know if there's depositions on the
22
18th or whatever.
IEN
DS
20
23
MR. YOUNG:
There are, Your Honor.
24
THE COURT:
So I'll be a little flexible with those,
FR
10:24:23
just thinking of this, I think --
17
25
10:24:19
I would say, though --
MR. MASTERSON:
14
Agreed.
All right.
MR. MASTERSON:
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but I would anticipate, nevertheless, that you'd be able to
10:24:34
10:24:44
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give what you anticipate the topics of the testimony to be, and
then I'll be a little flexible in terms of what it actually
turned out to be.
Is that acceptable to you, Mr. Young?
MR. YOUNG:
Well, Your Honor, we can certainly give
you the witnesses that we are going to have come to the
hearing.
earlier.
You'll see a lot of the same people that you saw
On the issue of exhibits, because of the way the
9
10
document production is happening, I would have to say that we
11
can certainly provide "a" list on September 18.
12
thousands of things that we have gotten this week and will be
13
getting we find something on the 19th, I don't want to be
14
precluded from adding it.

THE COURT:
15
I understand, and I'm going to give a
certain amount of leeway in light of the late production of
17
those documents.
18
19
MR. YOUNG:
THE COURT:
Nevertheless, I am going to require some
form of final pretrial order that gives your best witnesses and
21
topics, documents that you know you're going to use, and I'll
22
expect that.
IEN
DS
20
23
MR. YOUNG:
Understood.
24
THE COURT:
Okay.
25
MR. MASTERSON:
10:25:14
But if in the
16
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10:24:58
10:25:30
10:25:42
Mr. Masterson.
Thank you, Judge.
10:25:57
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Number two here is we've now received the interview
1
2
transcripts from the monitors.
to the monitors, we also requested the audiotapes and the
exhibits that were utilized during the interviews.
received those to date, so we'd still appreciate it if we could
get copies of the audiotapes themselves and the exhibits that
were utilized.
We have not
audiotapes, and the reason is this.
We've already had
10
discussions with certain witnesses who've reviewed their
11
interviews and they're finding an awful lot of mistakes.
12
just want to have the audiotapes available.
13
come to light, someone can take a look at the audiotape.

THE COURT:
14
16
17
10:26:28
So we
Should a mistake
Any problem with that, Chief Warshaw?
CHIEF WARSHAW:
15
No, sir.
THE COURT:
Okay.
MR. YOUNG:
Your Honor, we have those transcripts.
10:26:48
To
the extent that defense counsel believe there are corrections
19
that need to be made in those transcripts, could we get a copy
20
of those?
MR. MASTERSON:
10:26:58
Well, I mean, I did not intend to go
through each interview with each witness like I would a
IEN
22
DS
18
21
23
deposition and ask them to make changes and corrections, but if
24
we get into testimony here in court and someone attempts to use
25
one of the interviews --
FR
10:26:15
And the Court might wonder why in the heck I want
8
9
At the time we made our request
10:27:16
THE COURT:
THE COURT:
Yeah.
Why don't you give the audio backup
CHIEF WARSHAW:
Yes, sir.
MR. MASTERSON:
The last issue is -- well, a couple of
10:27:34
things although involving the same subject.
Mr. Killebrew's suggestion about an expert witness, I
8
9
Absolutely.
to both parties, or to all parties who want it, Chief.
You want to have the audio backup.
MR. MASTERSON:
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think the Court has a good plan.

A couple things.
Let's see what the monitor's
10
report says.
Ms. Wang said that the
11
monitor's not subject to discovery.
12
know there's some privileges there, but they're not absolute
13
privileges, and we're going to be briefing that and providing a
14
motion to the Court.
Well, that's not true.
10:27:47
We
But what occurs to me is -- and maybe I'm wrong, but
15
16
it occurs to me the Court is in effect telling us that the
17
monitor is going to be an expert witness.

THE COURT:
18
Well, maybe not, though.
You know, we may
just let you both have your expert witnesses and then the
20
monitor resumes the report function that he always had, and you
21
have your -- you both have your expert witnesses.
DS
19
MR. MASTERSON:
IEN
22
Okay.
Understood.
10:28:24
It does, though --
23
my issue's going to be if the monitor is going to be an expert,
24
then we should have a chance -- well, certainly we get to
25
depose the monitor with respect to opinions that are going to
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10:28:01
10:28:41
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be utilized by the Court, or that the monitor's going to be
testifying about as an expert witness.

THE COURT:
You know, we did discuss this last week,
and I agree that although there are privileges, they don't
strike me as being absolute, which is why I said:
tell us why you want it, what you want it.
You need to
But your points are well taken, and maybe what we need
7
8
to do is we do need to stage it; have you both be able to hire
your own experts.
And then that can clarify -- that could
10
clarify your motion to the extent you may seek discovery on
11
anything in the monitor's report.
12
MR. MASTERSON:
13
Thank you, Judge.
THE COURT:
All right.
MS. IAFRATE:
15
I have a conflict on Thursday.
17
and I was able to appear.
18
would like the same courtesy.
19
THE COURT:
Ms. Iafrate.
Even though I filed that motion, I
Yes.
DS
MR. MASTERSON:
THE COURT:
I mean, Mr. Masterson,
10:29:34
Yes, sir.
In any event.
And then I assume, as you
23
were last time, that if you can be here, you'll be here, but I
24
do appreciate your courtesy in filing the mo- -- or the notice.
FR
25
Mr. Ouimette.
10:29:22
My previous conflict went away
Mr. Popolizio, you'll be here?
IEN
22
That's all I have
Your Honor, I filed a motion yesterday.
16
21
10:29:12
for today.
14
20
10:28:54
10:29:51
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MR. OUIMETTE:
Very briefly.
David Ouimette, specially appearing for Deputy Chief MacIntyre.
We just have a request for a future agenda item.
You may recall at the outset of the contempt
4
5
proceedings we made a request that the Court consider taking
off the table a criminal referral of Deputy Chief MacIntyre in
large part but not exclusively, so that he doesn't have to
continue to retain separate counsel.
circumstances, we'd like to be heard on that issue at either
And in light of current
10
next week's conference or at least some point prior to the
11
resumption of the potentially lengthy hearings.

THE COURT:
12
Yeah.
10:30:30
You may remember, I don't know
13
whether you were here, I had a colloquy with Mr. Birnbaum about
14
that, and part of it -- and part of the reason I denied his
15
motion at that time was because we haven't yet heard from Chief
16
MacIntyre, and all of the documents had not yet been produced
17
at that time.
Chief MacIntyre's -- his deposition has been noticed, is that
20
correct?
DS
19
23
24
FR
25
10:31:05
MR. OUIMETTE:
Well, it's been taken originally.
He's
been interviewed by the monitor and it's rescheduled -- it's
IEN
22
10:30:50
I don't know, but it's my understanding, I think, that
18
21
10:30:08
going to be rescheduled prior to the hearing.

THE COURT:
And I guess that Ms. Iafrate last time
said that if we're going to make considerations with respect to
10:31:20
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Mr. Sousa, that if they were appropriate, she thought they
should be similarly made with Chief MacIntyre.
disagree with that, but I'm not also going to force plaintiffs'
hands when they don't yet have all the information.

MR. OUIMETTE:
THE COURT:
And I don't
I understand, Your Honor.
But I understand your request and we can
take it up, but my suggestion would be it's not going to be
fruitful to take it up until plaintiffs have been able to
evaluate all of the testimony and evidence that has been
10
produced.
10:31:47
MR. OUIMETTE:
11
The only distinction I'm making with
12
respect to this request is that it's limited to the criminal
13
referral, as opposed to I understand with respect to Mr. Sousa
14
it would -- the request is with respect to the entire contempt
15
proceeding.
16
request, to be heard on that.
17
THE COURT:
THE COURT:
19
21
23
24
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25
Anyone else on the phone have anything?

Somebody else here has something.
10:32:15
Mr. Walker.
MR. WALKER:
IEN
22
10:32:04
All right.
Oh, I'm sorry.
DS
20
But with that distinction, that would be our
MR. OUIMETTE:
18
10:31:34
Just a small
point of clarification.
At our last status conference you ordered the
Department of Justice's complaint in intervention to be filed,
10:32:28
and you made the comment that -- I have in my notes something
to the effect of "the time is running."

THE COURT:
10:32:40
THE COURT:
Yes, thank you.
The time runs from the
date of the actual filing.

MR. WALKER:
THE COURT:
9
10
The actual filing, I think, occurred on
Monday or Tuesday.
6
7
Um-hum.
MR. WALKER:
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5
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Thank you.
Thank you for pointing that out to me,
Mr. Masterson.
10:32:51
Anybody else in the room?
11
MR. COMO:
12
Mr. Como.
Your Honor, I have two quick issues.
One, as the Court can tell, there are a lot of
13
14
depositions being scheduled.
15
have been, I think, very cooperative in trying to get those
16
scheduled.
17
to address this week and it hasn't been resolved, which is on
18
September 10 the plaintiffs have noticed the deposition of
19
Steve Fax, or they may have just indicated that they intend to.
20
I think there's actually a deposition notice out for it.
ask that that be rescheduled.
I suggested September 14th,
23
which is a date that there are no depositions set in this case.
24
I understand that Mr. Popolizio's office got back and said that
25
that date would work, September 14th would work for Mr. Fax,
FR
10:33:22
I'm out of the state that day on another case, and I
IEN
22
10:33:06
There's one conflict that's come up that we tried
DS
21
All of the defendants and myself
10:33:43
and we haven't received any response to that.
I'm simply not available to do Mr. Fax on the 10th,
2
3
and I think he could be a potentially important witness with
respect to my client, so I'd ask that it be rescheduled to a
date when I'm available.
6
7
8
THE COURT:
Mr. Young.
MR. YOUNG:
We can consider that.
10:34:01
If Mr. Segura has a
response to that, I would invite his response.

MR. SEGURA:
9
10
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Mr. Como, let's be in touch, and I think
we should be able to figure it out.
11
12
THE COURT:
All right.
MR. YOUNG:
So we'll confer further and attempt to
13
resolve it, Your Honor, and if it can't be resolved, it's
14
possible you may be hearing about it, but we will try to
15
resolve it.
THE COURT:
16
MR. COMO:
17
10:34:32
All right.
The only other issue I have, Your Honor,
and this may be contemplated in this final pretrial order,
19
since the only issue that affects Mr. Sands is the preliminary
20
injunction order, it would be my hope that that issue can be
21
fully fleshed out through the witnesses and testimony at the
22
first round of this ongoing proceeding, so that perhaps the
IEN
DS
18
23
Court can relieve Mr. Sands, potentially myself, of the need to
24
be at further hearings.
FR
25
10:34:17
So I understand there's -- some of these witnesses are
10:34:45
10:35:07
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going to be testifying on a number of issues, and I understand
that.
contempt charge that all of the evidence can be presented at
this next round of the hearing.
But I would hope that with respect to that particular
THE COURT:
Well, I think -- it's my understanding
that all parties are going to try and do that, with the only
possible staging now being one pertaining to expert opinions on
remedies, if in fact that seems to be indicated.
that may turn out to be not plausible, I understand, but I
10
And in fact,
would suggest that all parties work to that.
MR. YOUNG:
12
We'll do our best, but as I said earlier,
Your Honor, we --
THE COURT:
14
You've reserved all of that, Mr. Young,
15
and I understand that you are doing your best under time
16
pressures with late disclosures.
17
18
20
21
23
24
FR
25
Thank you.
THE COURT:
Anybody on the phone have issues they need
All right.
Then we'll see you Thursday afternoon.
10:35:53
to raise?
IEN
22
MR. YOUNG:
DS
19
10:35:42
Is there any problem with that?
11
13
10:35:26
(Proceedings concluded at 10:36 a.m.)
10:36:07
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C E R T I F I C A T E
2
3
4
5
6
I, GARY MOLL, do hereby certify that I am duly
7
8
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
10
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
DATED at Phoenix, Arizona, this 9th day of September,
17
18
2015.
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21
IEN
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DS
19
23
24
FR
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s/Gary Moll

Melendres v. Arpaio #1353 Sept 4 2015 TRANSCRIPT - Status Conference

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Melendres v. Arpaio #1353 Sept 4 2015 TRANSCRIPT - Status Conference

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OF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Proceedings taken by stenographic court reporter

For the Plaintiffs:

American Civil Liberties Union Foundation

Covington & Burling, LLP

University of California Irvine School of Law

Mexican American Legal Defense and Educational Fund

For the Defendant Joseph M. Arpaio and Maricopa County

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

Jones, Skelton & Hochuli, PLC

For the Defendant Maricopa County:

For the Movants Christine Stutz and Thomas P. Liddy:

For the Movants Maricopa County Attorney's Office and Maricopa

For Deputy Chief Jack MacIntyre:

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

For Chief Deputy Gerard Sheridan:

For Executive Chief Brian Sands:

For Timothy J. Casey:

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

This is CV 07-2513, Melendres, et al., v.

Counsel, please announce your appearances.

Good morning, Your Honor.

Covington & Burling, for plaintiffs.

Arpaio, et al., on for status conference.

Your Honor, Anne Lai for the plaintiffs,

Good morning, Your Honor.

Iafrate on behalf of Sheriff Joseph Arpaio and the unnamed

Good morning, Judge.

and Joe Popolizio for Sheriff Arpaio.

Good morning, Your Honor.

and Charles Jirauch for the County as previously defined in

prior appearances and filings with this Court.

Good morning, Your Honor.

behalf of Brian Sands, who's waived his appearance today.

Terry Woods, Your Honor, for the

ACLU of Arizona, cooperating attorney.

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

nonparties Stutz and Liddy.

Good morning, Your Honor.

Eisenberg making a special appearance on behalf of Lieutenant

Good morning, Your Honor.

Ouimette specially appearing for Deputy Chief MacIntyre.

Good morning, Judge.

on behalf of Maricopa County Attorney Bill Montgomery and his

Who do we have on the phone?

Good morning, Your Honor.

Chief Warshaw, and also on the phone is Chief Martinez and

I'll tell you, Chief --

Good morning, Your Honor.

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

Wang from the ACLU for plaintiffs.

appearing telephonically are Andre Segura of the ACLU, Michelle

Also for plaintiffs

Morin of Covington & Burling, and Jorge Castillo of MALDEF.

Good morning, Your Honor.

CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference

McDonald making a special appearance for Sheriff Joe Arpaio.

Mitchell, who had conflicts, who are making special appearances