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COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 Stanley Young (Pro Hac Vice) syoung@cov.com Andrew C. Byrnes (Pro Hac Vice) abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys for Plaintiffs listed on next page) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Manuel de Jesus Ortega Melendres, et al., Plaintiffs, vs. Joseph M. Arpaio, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. CV 07-2513-PHX-GMS PLAINTIFFS MOTION IN LIMINE TO EXCLUDE CERTAIN U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) WITNESSES (The Honorable Judge G. Murray Snow)

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Additional Attorneys for Plaintiffs: Tammy Albarran (Pro Hac Vice) talbarran@cov.com Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92122 Telephone: (858) 678-1800 Facsimile: (858) 678-1600 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Telephone: (203) 432-3928 Facsimile: (203) 432-1426

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Plaintiffs, by and through their counsel, hereby move and respectfully request that this Court preclude Defendants from offering at trial the following witnesses: James Pendergraph, Matthew Allen, Troy Henley, Vincent Picard, and Bill Reid. MEMORANDUM IN SUPPORT OF MOTION IN LIMINE I. ARGUMENT

In this case, counsel for Defendants undertook to schedule the depositions of certain third party individuals, employees of Immigration and Customs Enforcement (ICE), that might provide testimony in this case, pursuant to Touhy regulations. Defendants did not, however, ultimately schedule the depositions of any of the ICE employees except for Mssrs. Kidd and Pena. As such, Defendants should not now be allowed to offer the testimony of those witnesses, including James Pendergraph, Matthew Allen, Troy Henley, Vincent Picard, and Bill Reid, at trial. Testimony by Department of Homeland Security (DHS) employees is governed by 6 C.F.R. 5.41-5.45. ICE falls under the organizational umbrella of DHS and thus testimony by ICE employees is governed by the same regulations. Section 5.43 provides that only the Office of the General Counsel is authorized to receive and accept subpoenas, or other demands and requests directed to the Secretary, the Department, or any component thereof, or its employees, whether civil or criminal in nature. Section 5.45 provides that [i]f official information is sought, through testimony or otherwise, by a request or demand, the party seeking such release or testimony must . . . set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. This applies with equal force to former employees of the Department. 8 C.F.R. 5.44. A demand for testimony by an ICE employee must be addressed to the Office of General Counsel for DHS, with copies to the United States Attorney handling the case. During fact discovery in this matter, Defendants identified several current and former ICE officials as possible witnesses, Gallagher Decl. Ex. C-E, and represented to Plaintiffs and the Court that they would seek permission from ICE, in the form of a -1-

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Touhy request, to obtain their testimony. D.I. 260-1. Plaintiffs informed Defendants that they would want to depose any such witnesses before the close of fact discovery if Defendants did intend to call them at trial. Id. In January of 2010, Defendants filed a Touhy Motion to Compel and to Extend Discovery to allow for those depositions. D.I. 247. In its Response to Defendants Touhy Motion, the United States indicated that it would agree to provide its two current agents for deposition, and assist, to the extent feasible, in providing three additional former agents to be deposed. D.I. 279 at 3. Defendants undertook the responsibility of contacting any ICE witnesses that would be providing testimony in this case for the purpose of setting up depositions. Gallagher Dec. Ex. F at 6:18-7:3. This was done only with the express permission of the United States Attorney's Office, which represents ICE in this matter. Id. Pursuant to the Touhy regulations, neither Defendants nor Plaintiffs were otherwise authorized to contact the ICE witnesses directly. Indeed, when Defendants expert Mr. Click later contacted Mr. Pendergraph by telephone outside of the Touhy process, the United States Attorneys Office reminded counsel that Mr. Pendergraph was not authorized to give this interview under the Touhy regulations. Ex. G to Gallagher Decl. In addition, in response to the Touhy motion, the Court stated that to the extent that the Motion requests that the Court order that the five former government agents be provided at trial, the Court defers a ruling on this part of the Motion until the depositions have been taken and relevant and admissible testimony of the agents has been identified. D.I. 279 at 3 (emphasis added). Defendants arranged for the depositions of Mr. Kidd and Mr. Pena, but did not arrange for the depositions of any other ICE witnesses. Although Defendants

mentioned, during a status conference with the Court, the possibility of scheduling depositions of Mr. Pendergraph, Mr. Reid, and Mr. Henley at a hearing on July 16, 2010, Gallagher Dec. Ex. H, those depositions were never scheduled.

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Defendants nonetheless now list James Pendergraph, Matthew Allen, Troy Henley, Vincent Picard, and Bill Reid as potential witnesses in the Joint Pre-Trial Order submitted to the Court on todays date. Because Plaintiffs were never presented with an opportunity to depose these witnesses, as Defendants failed to set up those depositions as agreed, Plaintiffs object to their being called at trial. III. CONCLUSION

For the reasons set forth, Plaintiffs thus respectfully request that this Court Order as follows: Defendants are precluded from offering the following witnesses at trial: James Pendergraph, Matthew Allen, Troy Henley, Vincent Picard, and Bill Reid.

RESPECTFULLY SUBMITTED this 2nd day of March, 2012.

By /s/ Lesli Gallagher Stanley Young (Pro Hac Vice) Andrew C. Byrnes (Pro Hac Vice) COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Tammy Albarran (Pro Hac Vice) talbarran@cov.com Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92122 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 -3-

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Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, California 94111 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of March, I electronically transmitted the attached document to the Clerks office using the CM/ECF System for filing and caused the attached document to be e-mailed to: Thomas P. Liddy tliddy@mail.maricopa.gov Maria R. Brandon brandonm@mail.maricopa.gov Timothy J. Casey timcasey@azbarristers.com Attorneys for Defendant Sheriff Joseph Arpaio and the Maricopa County Sherriffs Office s/Rohna R. Houston Paralegal

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