Melendres # 735 - Aug 7 2014 SEALED TranscriptFOFB

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

Melendres, et al.,
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Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
SEALED PROCEEDINGS
CV 07-2513-PHX-GMS
Phoenix, Arizona
August 7, 2014
10:04 a.m.
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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BEFORE THE HONORABLE G. MURRAY SNOW
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(Telephonic Conference)
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Court Reporter:
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Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 1 of 30
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:
Cecillia D. Wang, Esq.

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California 94111
(415) 343-0775
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Andre Segura, Esq.

AMERICAN CIVIL LIBERTIES UNION
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2676
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Jorge M. Castillo, Esq.

MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Regional Counsel
634 S. Spring Street
11th Floor
Los Angeles, California 90014
(213) 629-2512, Ext. 121
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For the Defendants:
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SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14
Timothy J. Casey, Esq.

James L. Williams, Esq.
SCHMITT, SCHNECK, SMYTH,
CASEY & EVEN, P.C.
1221 E. Osborn Road
Suite 105
Phoenix, Arizona 85014-5540
(602) 277-7000
Thomas P. Liddy, Esq.

Senior Litigation Counsel
MARICOPA COUNTY ATTORNEY'S OFFICE
Civil Services Division
222 N. Central Avenue
Suite 1100
Phoenix, Arizona 85004
(602) 506-8066
P R O C E E D I N G S
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THE CLERK:
This is civil case number 07-2513,
Melendres v. Arpaio, on for telephonic conference.
Counsel, please announce your appearances.
MS. WANG:
Good morning, Judge Snow.
10:04:26
This is Cecillia
Wang from the ACLU for the plaintiffs.
phone with me my co-counsel, Andre Segura, also with the ACLU,
and Jorge Castillo of MALDEF, but I'll be addressing the Court

today.
I also have on the
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THE COURT:
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MR. WILLIAMS:
10:04:48
All right.
Good morning, Your Honor.
Williams on behalf of the defendants.
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Casey and Tom Liddy.
James
Also with me is Tim
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And we also have client representative Steve Bailey,

who was not here when we first gave the Court our appearances,
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with MCSO's Internal Affairs division, and then also Christine
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Stutz and Vanessa Losicco from the Maricopa County Attorney's
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Office, who are appearing -- or not making appearances.
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They're here as client representatives, not as counsel.
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MONITOR WARSHAW:
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Good morning, Judge.
Bob Warshaw.
Monitor Raul Martinez.
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THE COURT:
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Let me address an initial matter.
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10:05:09
I also have with me Deputy Monitor John Girvin and Deputy
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Good morning.
Good morning to you all.

As in this hearing
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I may inquire into matters that I'm not going to require
disclosure for, I suggest that we hold this hearing initially
under seal, as it may involve particulars of ongoing police
investigations.
If I hold it under seal, then I want every participant
who is on the line to realize that they are not free to discuss
it, regardless of the fact that they are present, outside of
this hearing, except for among themselves.
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I do and would authorize each party to obtain a
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transcript of this hearing without further authorization of the
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Court, but that doesn't mean that you can discuss the hearing
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publicly unless and until I take off the seal.
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Does anybody object to us going under seal?
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MR. WILLIAMS:
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MS. WANG:
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THE COURT:
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No objection from plaintiffs, Your Honor.

All right.
I appreciate that.
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I take it, Mr. Williams, you're arguing on behalf of
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the defendants, or you're going to be speaking on behalf of the
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MR. WILLIAMS:
THE COURT:
That's correct, Your Honor.
I've looked at your letter and the basis
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for which you have asserted privilege, on which you've asserted
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privilege, and it seems to me, essentially, that E and F
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10:06:40
defendants today?
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10:06:27
Then I have looked at the -- I
have reviewed the letters that I have been sent by the parties.
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10:06:04
Defendants do not object, Your Honor.
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provide no basis for privilege, unless you're going to tell me
that you have pending appeals or disciplinary actions against
any particular MCSO employee or officer.
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Are there any such ongoing appeals or disciplinary
actions?
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MR. WILLIAMS:
Your Honor, I think that the challenge
with that is that the disciplinary action begins with the
investigation.
with regard to this issue, but we would certainly contend that
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There are no ongoing appeals that I'm aware of
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the ongoing investigation, that there is a very large one of
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those going on to which that would apply.
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THE COURT:
Well, let me just tell you, Mr. Williams,
have you identified any particular officers that are subject to
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disciplinary action as a result of any of the investigations?
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MR. WILLIAMS:
And Your Honor, if I may, on some of
these questions I may allow Steve Bailey, who's here next to
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me, because he can provide a greater level of detail on those,
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since we're under seal, so --
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THE COURT:
CAPTAIN BAILEY:
THE COURT:
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Well, I guess I don't have any objection
to Mr. Bailey -- or is it Captain Bailey?
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Yes, Your Honor.
All right.
I don't have any objection to
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his participation, except for I guess I want to direct the
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dance.
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been any officers that are designated as being subjected to
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And so I'm asking you first, Mr. Williams, have there

10:08:19
disciplinary action as a result of any of the material sought
by the plaintiff in this action?
MR. WILLIAMS:
Your Honor, let me just -- we have sent
out a number of notices to that respect, and we certainly have
targets in that respect, so there are -- and again, I probably
have to left Captain Bailey put a little bit finer point on
that, but I think the answer is that we are -- we are on that
road, Your Honor.

THE COURT:
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want to be very specific:
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disciplinary actions against any MCSO officer as a result of
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the investigations?
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CAPTAIN BAILEY:
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THE COURT:
Have you identified any ongoing
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You know, Captain Bailey, again, I welcome
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extent you provide clarification, I am going to allow Ms. Wang
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to seek clarification of what you say, just so you're aware,
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okay?
Yes, Your Honor.
THE COURT:
10:09:24
Okay.
CAPTAIN BAILEY:
Go ahead, Captain Bailey.
Nobody has been noticed as a
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principal as a result of the ongoing investigation.
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there have been several employees observed during what would
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have been discipline for Deputy Armendariz.
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I'm sorry, we had the
phone on mute.
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MR. WILLIAMS:
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your participation, but I do want you to know that to the
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Your Honor, this is Captain Bailey.
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Well, you may be on the road, but again, I
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However,
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As a result of the interviews, I have a clearer idea
of their participation and their knowledge, which certainly
could result in discipline in the future.
THE COURT:
Well, but you are not in a position, as I
understand it, Captain Bailey, to determine that with respect
to any particular officer at this point?
CAPTAIN BAILEY:
are in the investigation now.
THE COURT:
In that sense, then --
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All right.
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Well, Ms. Wang, do you have any follow-up?
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MS. WANG:
No, Your Honor.
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I think it's -- well, I
would ask Captain Bailey just to confirm that they currently
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don't have any ongoing disciplinary action against any
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particular MCSO deputy.
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With that clarification, I think that the Court has

already understood plaintiffs' position, which is that A.R.S.
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38-1101E and F don't apply at all, because there is no pending
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proceeding, much less an appeal, against any MCSO deputy.
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fact that MCSO has said that there may be some action taken in
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the future certainly doesn't extend the privilege under the
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The
THE COURT:
All right.
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And Mr. Williams, that is my
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ruling.
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been identified and is being pursued, A.R.S. 38-1101E and F are
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not applicable.
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statute to documents that we've been seeking now.
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No, Your Honor, not at the point we
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Unless and until a specific disciplinary action has
That does not mean that L -- well, I want to
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take a look at L, and I also want to look at A.R.S. 39-121,
which says, "Public records and other matters in the custody of
any officer shall be open to inspection by any person at all
times during office hours."
So keep that in mind.
L, it seems to me, "An employer shall not include in
that portion of the personnel file of a law enforcement officer
or probation officer that is available for public inspection
and copying any information about an investigation until the
investigation is complete or the employer has discontinued the
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investigation."
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plaintiff has asked for personnel files of law enforcement
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officers, that particular section of the statute may remain
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applicable.
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confidentiality obligations that pertain to the plaintiffs as a
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method of overcoming that, but I do want to ask some
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more questions so I can identify on a matter-by-matter basis
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and appropriately protect the defendant's interests while
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allowing the plaintiffs appropriate access.
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Evidence, records, and videos seized from the
custody of any officer.
It doesn't seem to be precluded by
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A.R.S. 38-1101E or F, and because it does not relate to the
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portion of a personnel file of a law enforcement officer, it
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doesn't seem to me, Mr. Williams, that you asserted a basis for
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10:12:32
Armendariz home seem to me to be material that is in the
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And it also strikes me that we could discuss
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Well, it seems to me that to the extent that the
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privilege.
Do you have --
MR. WILLIAMS:
Your Honor, I believe the definition of
the investigative file under 38-1101 is much broader than that
and includes anything attached to that investigation, and
that's the problem that we have, Your Honor.
THE COURT:
No, no, no, no.
10:13:11
Let's go back and focus
on the language of the statute, please, Mr. Williams.
looking only at 38-1101L and it talks about a personnel file;
it doesn't talk about an investigative file.

the statute?
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MR. WILLIAMS:
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We're
Or do I misread
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10:13:28
It does also mention, Your Honor, any
information about an investigation.
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THE COURT:
That's fine.
But we're talking about a
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personnel file.
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evidence, records, and videos seized from the Armendariz home.
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That's not a personnel file.
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And the request I'm talking about right now is
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MR. WILLIAMS:
That's the --
And Your Honor, I'm sorry.
L also
mentions copying any information about an investigation, and
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that -- that would be our position is that for the same reason,
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that evidence is now information -THE COURT:
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Well, I've got L in front of me.
10:13:58
You tell
me where it says copying any information about an
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investigation.
MR. WILLIAMS:
"... probation officer that is
available for public inspection and copying any information
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SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 10
about an investigation until the investigation is complete..."
THE COURT:
Yeah, that's from the personnel file,
though.
It doesn't -- it does not, as I read the statute, apply to --
generically to investigations, and so I don't think that you
have satisfied me that you have demonstrated any privilege in
the evidence, records, and videos seized from the Armendariz's
home.
That's information contained in the personnel file.
Your Honor, as a practical matter, that
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MR. WILLIAMS:
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information would be in the investigative file; it would not be
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in the personnel file.
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THE COURT:
I understand that.
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investigative file?
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you've got any privilege that it would apply to that
MR. WILLIAMS:
I believe, Your Honor, we're having a
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different reading of L.
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essentially two parts and Your Honor is reading it,
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understandably, different to have the second part subsumed into
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the first part of the personnel file.
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But the way that -- that I read L:
An employer shall
enforcement officer that is available for public inspection and
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copying any information about his investigation.
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intended to cover both topics.
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not include in that portion of the personnel file of a law
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I believe I'm reading L as having
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Can you show me where
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THE COURT:
I think it's
I understand your reading and I don't
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agree with it.
course -- I guess my understanding counts, is the one that
counts for immediate purposes.
I don't think it's correctly read.
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However, I do believe that it does make sense to have
some confidentiality obligation on plaintiffs.
that you believe that you can -- or that any information that
they might disclose would damage your investigation, I don't
want to do that, and maybe we can ask an assessment from Chief
Warshaw about where the investigation actually stands.
To the extent
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But he
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does keep me pretty well posted, and it was my impression that
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the investigation in this respect, and I realize there are many
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things to investigate, has not moved very far.
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undertake all aspects of the investigation which may be of some
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interest to them.
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the plaintiffs to wait until you determine that you're going to
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As I understand it from your letter, Ms. Wang,
plaintiffs are interested in discovering the material actually
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revealed so that they can use it in the defense of this Court's
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order to the extent that I have placed certain things in my
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things that are relevant to the applicability of such an order.
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Do you desire it for any other purpose at this point?
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MS. WANG:
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injunction and you believe that the investigation reveals
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10:16:10
And so it is not my intention to just simply require
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No, Your Honor.
Of course, plaintiffs are
seeking all these categories of documents in order to represent
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the plaintiff class in making sure that the defendants are
complying with this Court's previous orders.
And I would also point out that defendants are
currently contesting provisions of this Court's orders, and
particularly the trial rulings and the Court's supplemental
injunction from October of last year on appeal in the Ninth
Circuit.
documents that defendants have produced to us demonstrates that
there is certainly evidence to support this Court's prior
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And the little that we have seen so far from the
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orders, and that would refute the position that the defendants
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have taken on appeal, for example.
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to protecting the interests of the plaintiff class and
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protecting the plaintiff class from further violations of their
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constitutional rights.
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directly relevant to the subject matter of this litigation and
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One other note I just wanted to make, Your Honor, and
I understand you've ruled already, on the privilege asserted by
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the defendants based on 38-1101, with regard to subsection L,
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plaintiffs are not relying on any rights under Arizona's public
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records law.
Primarily, we're relying on the ongoing
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And so I think that I agree with the Court's reading
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of subsection L as not conferring any privilege in any event,
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but I'd also point out that we don't stand in the position of
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litigation and the Court's prior orders and injunctions.
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10:17:46
So that's our position, that the documents are
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the public trying to gain access to any of these records.
THE COURT:
It would be my proposal that if, for present purposes,
Let me float this for proposal.
Ms. Wang wants it for purposes of defending the order and
appeal and purposes of this action, that the plaintiffs be
restricted from any other use, but they be entitled to complete
access to the records and videos seized from the Armendariz
home.
have to seek authorization from the MCSO or from this Court.
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And before they can use it for any other purpose, they
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Any problem with that order?
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MS. WANG:
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MR. WILLIAMS:
10:19:27
No, Your Honor, not from plaintiffs.

Your Honor, from defendants'
standpoint, we do have an issue with them using it as a basis
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for the appeal, as the record for the appeal would seem to be
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closed.
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THE COURT:
10:19:39
Well, let me ask you, Mr. Williams, it
seems to me that plaintiffs have suggested, and it seems to me,
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by my recollection, which isn't always fault free, that among
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other things, plaintiffs requested prior to trial copies of any
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videos or recordings made of any traffic stops.
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uncovered a great number of recordings, both video and audio,
that existed that were not disclosed.
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MR. WILLIAMS:
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THE COURT:
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And it
certainly seems to me that the Armendariz investigation has
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Am I correct --
And, Your Honor that's -- I apologize.
Am I correct about that?
10:20:23
MR. WILLIAMS:
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Well, Your Honor, that's an important
point of clarity.
being disputed here.
under the protective order that -- that Your Honor issued.
Those HSU videos are not part of what is
THE COURT:
Those have been disclosed to Ms. Wang
I'm not talking about HSU videos; I'm
talking about Armendariz videos.
Have you matched them up to know that they weren't
videos made during the pendency of this lawsuit?
I believe they are after, Your Honor,
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MR. WILLIAMS:
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but I would be uncomfortable making that representation
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affirmatively to the Court, I'm not certain.
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THE COURT:
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videos?
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THE COURT:
Have I personally, or --
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MR. WILLIAMS:
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meant the MCSO.
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No, no, I don't mean you personally; I
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MR. WILLIAMS:
They have completed, as I understand,
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are potentially problematic, and then those videos that have
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been identified as potentially problematic are being reviewed
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the initial review of all the videos to determine which videos
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THE COURT:
Have they dated the videos?
Have they
matched the videos up to victims, and have they done the
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Hispanic surname search that we had discussed earlier?
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10:21:19
by a group of lieutenants.
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10:21:06
Thank you for the clarification.
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10:20:56
Well, have you even looked at all the
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CAPTAIN BAILEY:
No, Your Honor.
We are still merging
10:21:42
all the spreadsheets.
THE COURT:
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We need all the data that we could -Is that Captain Bailey?
Captain Bailey?
CAPTAIN BAILEY:
THE COURT:
Is this
Yes, Your Honor, I'm sorry.
That's all right.
If you'd just identify
yourself prior to speaking, because since you're not here, the
court reporter can't know unless you identify yourself.
CAPTAIN BAILEY:
Yes, sir.
Currently, we are merging
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a number of spreadsheets together that is a collection of data
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from every aspect that we could identify.
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that we deemed potentially problematic, and there is 10 to 12
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lieutenants currently looking at those 394 videos so we can
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identify serious issues if they in fact exist.
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you're operating in anything other than good faith,
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Captain Bailey, but if you identified -- when you say 394
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videos, do you mean 394 actual stops that have been videotaped,
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or do you mean 394 of the 500 some-odd videos that have on them
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one or more stops that are problematic?
10:22:31
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understand things, and I appreciate and I'm not suggesting that
CAPTAIN BAILEY:
10:22:51
They are 394 clips that show both
traffic stops and potentially enforcement actions, depending on
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10:22:07
Well, let me just tell you how I
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THE COURT:
There was 394 videos
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how the camera was operated at the time.
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from the reviews of hundreds of other videos that we have
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separated out for further investigation by the Professional
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But those 394 come
10:23:11
Standards Bureau.
THE COURT:
All right.
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And again, without calling
into question your good faith, I do believe that Ms. Wang might
not necessarily share the assessment of the Maricopa County
Sheriff's about the number of those videos that demonstrate
problematic behavior.
may well.
wants to spend the time reviewing them.
I'm not saying that she wouldn't; she
But I believe that she's entitled to look if she
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Can you tell me why she wouldn't be?
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CAPTAIN BAILEY:
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is Captain Bailey.
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THE COURT:
Your Honor, are you asking me?
No, I'm asking Mr. Williams.
you for the clarification, Captain Bailey.
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was a fair question to be asking you.
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MR. WILLIAMS:
I don't think it
Your Honor, I think we've stated our
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allowed to look at them.
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interference with the ongoing investigation --
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basis and you disagreed with it as to why she shouldn't be
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That's correct, and I understand that.
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10:24:10
Ms. Wang can use whatever she finds for purposes only of this
lawsuit and/or the arguments on appeal, and that if she
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discloses any information, publicly or otherwise, she'll be in
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violation of my order.
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MR. WILLIAMS:
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10:23:56
I think our concern is an
And let me ask you, Mr. Williams, my proposal is, again, that
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THE COURT:
10:23:43
But thank
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This
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10:23:28
And one concern, Your Honor, with
10:24:30
respect to the filing on the --
THE COURT:
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I guess before I let you go, and I will
let you speak, Mr. Williams, but do you have any concern about
an order entered to that effect in terms of doing what I can do
to preserve the integrity of your investigation?
MR. WILLIAMS:
I do have concerns, Your Honor, if
she's able to file any of those records as a matter of public
record either with this Court or with the Ninth Circuit.

THE COURT:
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I understand that concern.
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Ms. Wang, before you file any other records as an
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MS. WANG:
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MR. CASEY:
Understood, Your Honor.
And will that be -- Your Honor, this is
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Tim Casey.
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particular provision?
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it's one thing for plaintiff to be able to look at the
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documents or look at the videos and make their own assessment;
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it's another thing for it to go on the public record, because
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we need to preserve the integrity of what investigations are
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ongoing.
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Will that be included in your order, that

10:25:13
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Because that is a significant concern is
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And we also want to make sure if there are
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before we can address them and meet with them.

THE COURT:
Well, how about I revise it this way,
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Mr. Casey?
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tons of things that you both agree on can go in the public
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10:25:31
quote-unquote victims, that they're not in the public record
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10:24:56
exhibit, you'll need to seek authorization of the Court.
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10:24:42
It may well be -- I don't want to have to decide

10:25:46
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record.
Ms. Wang wants to put any of the exhibit -- actual exhibits or
evidence in the -- copies of them in the public record, that to
the extent she cannot obtain your approval, she get an order of
the Court authorizing it first.
So I will be glad to enter in my order that if
10:26:05
MR. CASEY:
That is agreeable, Your Honor.
THE COURT:
All right.
Request number 4, records of
interviews of MCSO personnel relating to the Armendariz
investigation.
EF
OG
Well, I take it that the Armendariz
10
investigation itself is ongoing.
11
MR. WILLIAMS:
12
THE COURT:
That is correct, Your Honor.
Is there any investigations that have been
opened, and I think you've already answered this, with respect
14
to any other officers that have been identified, other than
15
Deputy Armendariz?
TH
13
16
MR. WILLIAMS:
10:26:44
Not at this time, Your Honor, although,
again, we express our disagreement with how the line's being
18
drawn, but we understand your ruling so far.
OF
17
19
21
My ruling will be the same
with respect to records of interviews with the MCSO personnel

relating to the Armendariz investigation.
That is, Ms. Wang
23
otherwise use them, absent the authorization of MCSO, in a
24
public filing without order of the Court.
FR
25
10:27:03
may review those records, but she may not attach them or
IEN
22
All right.
DS
20
THE COURT:
10:26:27
Now, documents relating to one division level
10:27:25
BO
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. CO
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investigation of Deputy Armendariz, IA2014-0142.
investigation complete?
MR. WILLIAMS:
Is this
Your Honor, this is an interesting one.
That particular investigation is complete.
that investigation is that the nature of the investigation, and
I can only disclose this because we're under seal, raises
concerns about how that investigation was conducted with
respect to the deputies involved in that.
The problem with
EF
OG
And so actually that is -- and that issue was raised

with the monitor earlier this week because it is of series
11
concern to the IA division as to how that investigation was
12
completed, which raises concerns about, frankly, whether there
13
was any involvement between those who conducted that
14
investigation and Deputy Armendariz' conduct.
TH
10
15
We had a very difficult time getting that division
16
investigation file back from the division.
17
we were concerned, to say the least, about how it was
18
conducted.
19
investigation.
21
10:28:17
When we got it back
OF
THE COURT:
All right.
And let me just say, I
if they're -- if they have concerns about any of my rulings, I
23
just invite them to speak up and identify themselves, or if
24
they have information that they think would be helpful to the
25
Court in making its rulings, I similarly invite them to speak
FR
10:28:30
appreciate the presence of the monitor staff on this call, and
IEN
22
10:27:59
And so that is the nature of that particular
DS
20
10:27:46
10:28:49
BO
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up.
But it seems to me, Mr. Williams, and I appreciate
your candor and the willingness of the Sheriff's Office to
investigate the adequacy of their own Internal Affairs
investigations, but it seems to me that that might go to the
very heart of matters in which Ms. Wang would be interested.
So to the extent that she wants the investigation
itself, I don't think there's any privilege that would withhold
it.
So the investigation
EF
OG
It's not an ongoing investigation.
10
itself, there is no privilege that attaches.
11
to the extent there is a new investigation about the adequacy
12
of that investigation, there may be other issues, but I don't
13
see any issue with her receiving the actual concluded
14
investigation of Deputy Armendariz, and so I'm going to let her
15
have that.
16
there is no longer any ongoing investigation, and so I'm not
17
going to make that subject to the protective order.
TH
MR. WILLIAMS:
DS
23
Yes, Your Honor.
10:29:50
We have the same
concerns that we've expressed before, but we understand your
THE COURT:
All right.
MR. WILLIAMS:
Thank you.
We think it runs substantial risk of
24
interfering with the very investigation that we're trying to
25
conduct, but we will, of course, abide by the Court's order.
FR
10:30:05
Court's -- the Court's decision on it.
IEN
22
10:29:25
Any concerns about that?
19
21
There may be --
And it seems that is a public document because
OF
18
20
10:29:07
10:30:18
BO
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THE COURT:
Does the monitor have -- does the monitor share any of
I appreciate it, Mr. Williams.
those concerns?
MONITOR WARSHAW:
No, Your Honor.
Court's views on that issue.
THE COURT:
I concur with the
10:30:31
All right.
Personnel records and
performance evaluations of any other MCSO personnel under
investigation as a result of the Armendariz matter and records
of complaints against such MCSO personnel.
10
EF
OG
Well, it seems to me that to the extent no such
11
persons have presently been identified, there is no response to
12
that request.
13
request, Ms. Wang?
14
MS. WANG:
15
And I would also note that this subject was addressed
16
by one of plaintiffs' requests for production during discovery
17
in the case as well, we did ask for records of citizen
18
complaints, so I think that would cover some of these
19
materials.
21
TH
No, you have not misread it, Your Honor.

10:31:06
OF
THE COURT:
All right.
Well, I'm going to say that to
underlying litigation before trial that were not disclosed but
23
you have subsequently discovered material that is responsive,
24
it just has to be disclosed, totally -- totally regardless of
25
any privilege asserted now.
FR
10:31:21
the extent any materials were requested by the plaintiff in the
IEN
22
Is that a fair summation, or have I misread your
DS
20
10:30:49
So --
10:31:42
MS. WANG:
THE COURT:
BO
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Thank you, Your Honor.
-- what's left of request number 8, other
than records of complaints against MCSO personnel?
The problem we have here, Ms. Wang, as I've said, is
there are no MCSO personnel under investigation as yet as a
result of the Armendariz matter, or have I misstated that,
Mr. Williams?
MR. WILLIAMS:
It's correct within the way the Court
EF
OG
has drawn the line, that's correct.
10
Again, we will contend that they were under
11
investigation and that the statute covers that status as well.
12
THE COURT:
All right.
14
may want to disclose that to Ms. Wang.
TH
may become subject to such an investigation, I believe that you
15
But Ms. Wang, when he does do that, it does seem to me

that 38-1101L then kicks in and you're entitled to their
17
personnel file, but you're not entitled to their personnel file
18
including any materials that pertain to the investigation.
19
Is that clear?
DS
MS. WANG:
I think so, Your Honor.
I take it that if
subject of an administrative disciplinary proceeding, we'll
23
expect defendants to inform us and inform the Court and the
24
monitor, and then we could take the necessary steps to, you
25
know, make sure that any privilege that then does get triggered
FR
10:32:50
circumstances change at any point and a deputy is actually the
IEN
22
10:32:30
OF
16
21
10:32:14
Now, at such point that any
13
20
10:31:57
10:33:14
will apply to documents.
THE COURT:
MS. WANG:
THE COURT:
All right.
But that's understood.
Any concern about that request and that
ruling on that request?
MR. WILLIAMS:
10:33:29
Other than our previous objections,
Your Honor, no.
THE COURT:
MR. WILLIAMS:
Your Honor.
Well, you've won that one, Mr. Williams.

I mean in the interim is my problem,
EF
OG
10
BO
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. CO
M

10:33:43
11
THE COURT:
12
MCSO Internal Affairs spreadsheet summarizing
13
video recordings seized from Deputy Armendariz's home.
14
All right.
Your Honor, if I may, those constitute
TH
MR. WILLIAMS:
Fair enough.
the very heart of the MCSO's investigation into this matter.
16
And more importantly, perhaps, they are works in process, and
17
they change as evidence is obtained, is analyzed.
18
investigatory conclusions that would be completely unfair not
19
only for the MCSO to be held to in the meantime, but even
20
worse, if they were somehow disseminated.
23
They include
But in any event,
10:34:18
about with regard to the investigatory file.

I should also say those, along with numerous other
24
documents, are provided to the monitor on a regular basis.
25
monitor is intimately involved in the investigation and sets
FR
10:34:02
that is at the very heart of what we -- what we are concerned
IEN
22
DS
21
OF
15
The
10:34:34
BO
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. CO
M

tasks and time lines and has almost daily contact with IA in
that respect.
dark.
So it's not as if that is being conducted in the
In addition, potential witnesses and victims are
identified in those spreadsheets who have not yet been
interviewed or contacted.
of our concern.
THE COURT:
That is certainly at the very heart
Mr. Warshaw, do you have any comment to
EF
OG
make with respect to those spreadsheets?
10
MONITOR WARSHAW:
Yes, Your Honor.
Mr. Williams is
11
correct, we do get those on a regularized basis, and those are
12
the subject of a consultative process.
13
restrictions that the Court has placed on the plaintiffs
14
relevant to the other matters that have already been discussed,
15
I personally do not see how it would be an investigative
16
compromise if that material was shown to the plaintiffs with
17
the same provisions that the Court has determined relevant to
18
the other matters.
TH
But based on the
10:35:24
I believe that is going to be my ruling.
I do appreciate the good faith of the MCSO.
impair their good faith investigation.
I don't want to
But certainly to the
23
think Ms. Wang's entitled to look at why and what and the
24
specification of why they are problematic, and certainly to
25
explore whether or not the stops involved members of the
FR
10:35:42
extent they've identified 394 stops that may be problematic, I
IEN
22
THE COURT:
DS
21
10:35:02
OF
19
20
10:34:49
10:36:02
BO
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. CO
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plaintiff class.
And so subject to the same restrictions, I'm going to
make the same order.
to the last area that wasn't included in Ms. Wang's letter but
subsequently raised by e-mail, which is the monitor's reports.
And it seems to me that that would apply
Any other matters to be raised in this conference
call?
MS. WANG:
Your Honor, just one, which I subsequently
EF
OG
e-mailed to the Court, and I apologize for not including it in
10
my letter.
11
whether defendants have made a full disclosure under requests 5
12
and 6 from my May 21st letter, and these are -- both categories
13
relate to documents that MCSO has provided to the monitor.
14
There's some lack of clarity on my part about
TH
16
at the last minute yesterday just to get some clarity about
17
whether anything was still withheld.
10:36:57
OF
responsive, and Mr. Williams and I were meeting and conferring
18
To the extent that there are documents that are
withheld in that last category we just addressed about the
20
weekly -- or the regular spreadsheet that's given to the
DS
19
we are seeking those other documents as well.
23
THE COURT:
24
MR. WILLIAMS:
FR
25
10:37:16
monitor as one of those categories, I just want to clarify that
IEN
22
10:36:36
MCSO has produced a number of the documents that are
15
21
10:36:20
Mr. Williams.
Your Honor, I believe we have disclosed
in the privilege log or in our correspondence any of those
10:37:30
BO
W
. CO
M

documents that weren't produced, and I think all of them fall
in the category of what we've been discussing today.
want to clarify that if you -- that by ordering the production
of all those, it is pursuant to the terms of your order today,
if they fall in that category with respect to an investigation.
THE COURT:
So I just
I'm not sure that I've understood this
interchange exactly, but are you satisfied, Ms. Wang?
MS. WANG:
I think so.
Maybe we should just clarify
EF
OG
with Mr. Williams that documents that MCSO is producing to the
10
monitor will be produced to plaintiffs with the limitation that
11
the Court has imposed on the other categories.
12
THE COURT:
Yes.
14
I'm not sure that the order itself would disclose any
15
privileged material, and it seems to me that we need to -- as
16
I've said before, and I think all parties are in agreement, we
17
need to be as open as we can be without interfering with
18
legitimate police operations.
19
Is there any reason why the order cannot be publicly
DS
filed?
MR. WILLIAMS:
10:38:51
Your Honor, from defendants I guess it
depends on the level of detail that the order gets into, but
IEN
22
10:38:33
OF
TH
why my order on this matter should be kept from the public?
21
10:38:09
Now, let me ask, is there any reason
13
20
10:37:48
presuming the order does not get into the details of any of
24
what was discussed today with respect to the status of the
25
investigation, the nature of the spreadsheets, the process,
FR
23
10:39:04
BO
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. CO
M

et cetera, to the extent it simply grants plaintiffs access and
restates the restriction, I think Your Honor is correct.
would just be nervous without any recital leading up to that.
THE COURT:
MS. WANG:
Ms. Wang.
Plaintiffs' view is that Your Honor's order
should be public, and we agree that, obviously, anything that's
sensitive or confidential should not be in that order.
THE COURT:
Is there anything else that needs to be raised?
Thanks to all parties.
EF
OG
All right.
10
MS. WANG:
11
MCSO has identified these 394 video files, but I take
Your Honor, just a clarification.
it that the Court is ordering the larger scope of documents
13
that were seized from Armendariz's home to be disclosed to
14
plaintiffs, is that right?
TH
12
15
THE COURT:
16
MS. WANG:
17
MR. WILLIAMS:
That's correct.
OF
mentioned, which obviously is part of the investigative
20
spreadsheet, I wonder if the Court would allow us to complete
DS
19
10:40:12
that lieutenant review, which would then be put into the
IEN
investigative spreadsheet before disclosing the spreadsheet, so
23
that at least the final version of the MCSO's review of those
24
videos is there, rather than the intermediate production of
25
that review.
FR
10:40:00
Your Honor, the only other issue with
respect to the lieutenant review of the videos that I
22
10:39:41
Okay.
18
21
10:39:27
10:40:31
THE COURT:
MR. WILLIAMS:
THE COURT:
MONITOR WARSHAW:
acceptable, Judge.
MS. WANG:
THE COURT:
said, Bob.
BO
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M

How long do you anticipate that taking?

Two weeks, Your Honor.
Mr. Warshaw?
From our perspective, I think that's
10:40:45
Your Honor, for plaintiffs -- sorry.

I am sorry.
I just couldn't hear what you
Can you repeat that, please?
EF
OG
And then, Ms. Wang, I'll hear from you.
10
MONITOR WARSHAW:
Right.
If I understand
11
Mr. Williams, is he -- is Mr. Williams, may I ask, are you
12
saying it will take you two weeks, or --
13
MR. WILLIAMS:
14
Yes, we think the review can be
TH
complete within two weeks.
15
THE COURT:
16
MS. WANG:
Ms. Wang.
10:41:09
Your Honor, my understanding is that MCSO
has been providing a version of this spreadsheet, which, as
18
Mr. Williams described it, is a work in progress, to the
19
monitor team on a regular basis.
20
copies of all such spreadsheets as they've been produced to the
DS
Our request is that we get
23
So our request is to get copies of all of those, and
including future versions, as Mr. Williams is describing.
24
THE COURT:
25
MONITOR WARSHAW:
FR
10:41:28
monitor, and that includes, you know, what's happened so far.
IEN
22
OF
17
21
10:40:56
Yeah.
I think that's a fair -Your Honor -- I'm sorry.
10:41:43
THE COURT:
BO
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I think that's a fair request.
It's the
import, I think, already of my order.
But to the extent that
Mr. Williams wants to designate one of those as final so that
you can have the final assessment of the MCSO, I think that
works, too.
10:41:59
MS. WANG:
THE COURT:
MONITOR WARSHAW:
(Proceedings concluded at 10:41 a.m.)
11
12
13
15
16
OF
17
18
IEN
DS
19
22
Okay.
TH
14
21
All right.
Thank you all.
Thank you, Judge.
EF
OG
10
20
That's right, for us, too.
23
24
FR
25
BO
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1
2
C E R T I F I C A T E
3
4
5
6
7
I, GARY MOLL, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
EF
OG
10
I FURTHER CERTIFY that the foregoing pages constitute

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.
TH
11
15
16
17
18
2014.
20
21
IEN
22
DS
19
OF
DATED at Phoenix, Arizona, this 11th day of August,
23
24
FR
25
s/Gary Moll

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1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega

Joseph M. Arpaio, et al.,

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 1 of 30

Proceedings taken by stenographic court reporter

For the Plaintiffs:

Cecillia D. Wang, Esq.

Andre Segura, Esq.

Jorge M. Castillo, Esq.

For the Defendants:

Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 2 of 30

Timothy J. Casey, Esq.

Thomas P. Liddy, Esq.

This is civil case number 07-2513,

Melendres v. Arpaio, on for telephonic conference.

Counsel, please announce your appearances.

Good morning, Judge Snow.

Wang from the ACLU for the plaintiffs.

phone with me my co-counsel, Andre Segura, also with the ACLU,

and Jorge Castillo of MALDEF, but I'll be addressing the Court

I also have on the

Good morning, Your Honor.

Williams on behalf of the defendants.

Casey and Tom Liddy.

Also with me is Tim

And we also have client representative Steve Bailey,

with MCSO's Internal Affairs division, and then also Christine

Stutz and Vanessa Losicco from the Maricopa County Attorney's

Office, who are appearing -- or not making appearances.

They're here as client representatives, not as counsel.

Good morning, Judge.

Monitor Raul Martinez.

Let me address an initial matter.

I also have with me Deputy Monitor John Girvin and Deputy

Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 3 of 30

Good morning to you all.

Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 4 of 30

I may inquire into matters that I'm not going to require

disclosure for, I suggest that we hold this hearing initially

under seal, as it may involve particulars of ongoing police

If I hold it under seal, then I want every participant

it, regardless of the fact that they are present, outside of

this hearing, except for among themselves.

I do and would authorize each party to obtain a

transcript of this hearing without further authorization of the

publicly unless and until I take off the seal.

Does anybody object to us going under seal?

No objection from plaintiffs, Your Honor.

I take it, Mr. Williams, you're arguing on behalf of

the defendants, or you're going to be speaking on behalf of the

That's correct, Your Honor.

I've looked at your letter and the basis

for which you have asserted privilege, on which you've asserted

privilege, and it seems to me, essentially, that E and F

Then I have looked at the -- I

Defendants do not object, Your Honor.

provide no basis for privilege, unless you're going to tell me

that you have pending appeals or disciplinary actions against

any particular MCSO employee or officer.