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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))
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No. CV 07-2513-PHX-GMS
Phoenix, Arizona
September 4, 2015
9:07 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Status Conference)
Court Reporter: Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference 2
A P P E A R A N C E S
For the Plaintiffs:American Civil Liberties Union Foundation
Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq. - Telephonically39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Andre Segura, Esq. - Segura - Telephonically
125 Broad Street, 18th FloorNew York, New York 10004
Covington & Burling, LLPBy: Stanley Young, Esq.By: Michelle L. Morin, Esq. - Telephonically
333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065
University of California Irvine School of Law
Immigrants' Rights Clinic
By: Anne Lai, Esq.401 E. Peltrason Drive, Suite 3500Irvine, California 92697
Mexican American Legal Defense and Educational FundBy: Jorge M. Castillo, Esq. - Telephonically
634 S. Spring Street, 11th FloorLos Angeles, California 90014
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Iafrate & AssociatesBy: Michele M. Iafrate, Esq.
649 N. 2nd Avenue
Phoenix, Arizona 85003
Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq. - Telephonically
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
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CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference 4
A P P E A R A N C E S
For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLP
By: Greg S. Como, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Lieutenant Joseph Sousa:David Eisenberg, PLC
By: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003
Phoenix, Arizona 85004
For Timothy J. Casey:
Adams & Clark, PCBy: Karen Clark, Esq. - Telephonically520 E. Portland Street
Phoenix, Arizona 85004
Also present:Chief Robert Warshaw, Monitor - Telephonically
Commander John Girvin, Deputy Monitor- Telephonically
Chief Raul Martinez, Deputy Monitor - TelephonicallyRaphael O. Gomez, Esq. - TelephonicallyChief Deputy Gerard Sheridan
Lieutenant Joseph Sousa
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P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is CV 07-2513, Melendres, et al., v.
Arpaio, et al., on for status conference.
Counsel, please announce your appearances.
MR. YOUNG: Good morning, Your Honor. Stanley Young,
Covington & Burling, for plaintiffs.
THE COURT: Good morning.
MS. LAI: Your Honor, Anne Lai for the plaintiffs,
ACLU of Arizona, cooperating attorney.
THE COURT: Good morning.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Joseph Arpaio and the unnamed
alleged contemnors.
MR. MASTERSON: Good morning, Judge. John Masterson
and Joe Popolizio for Sheriff Arpaio.
THE COURT: Good morning.
MR. WALKER: Good morning, Your Honor. Richard Walker
and Charles Jirauch for the County as previously defined in
prior appearances and filings with this Court.
MR. COMO: Good morning, Your Honor. Greg Como on
behalf of Brian Sands, who's waived his appearance today.
THE COURT: Good morning.
MR. WOODS: Terry Woods, Your Honor, for the
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nonparties Stutz and Liddy.
THE COURT: Good morning.
MR. EISENBERG: Good morning, Your Honor. David
Eisenberg making a special appearance on behalf of Lieutenant
Joseph Sousa. He is present.
THE COURT: Good morning.
MR. EISENBERG: Good morning.
MR. OUIMETTE: Good morning, Your Honor. David
Ouimette specially appearing for Deputy Chief MacIntyre.
THE COURT: Good morning.
MR. CALDERON: Good morning, Judge. Ernest Calderon
on behalf of Maricopa County Attorney Bill Montgomery and his
office.
THE COURT: Good morning.
Who do we have on the phone?
CHIEF WARSHAW: Good morning, Your Honor. This is
Chief Warshaw, and also on the phone is Chief Martinez and
Commander Girvin.
THE COURT: I'll tell you, Chief --
MS. WANG: Good morning, Your Honor. It's Cecillia
Wang from the ACLU for plaintiffs. Also for plaintiffs
appearing telephonically are Andre Segura of the ACLU, Michelle
Morin of Covington & Burling, and Jorge Castillo of MALDEF.
THE COURT: Good morning. Anybody --
MR. McDONALD: Good morning, Your Honor. 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
Mitchell, who had conflicts, who are making special appearances
for Chief Jerry Sheridan.
MR. KILLEBREW: Good morning, Your Honor. This is
Paul Killebrew, Puneet Cheema, and Cynthia Coe, appearing for
plaintiff intervenor United States.
MR. GOMEZ: Good morning, Your Honor. This is Raphael
Gomez appearing for the United States regarding the Montgomery
file.
MS. CLARK: Good morning, Judge. Karen Clark, ethics
counsel for Tim Casey.
THE COURT: Do we have anybody else on the phone?
All right. I will tell you that we could hear
everybody on the phone here except for Chief Warshaw, couldn't
hear you very well, so if you're going to participate, I'll ask
you to speak up.
Mr. Masterson, I'm going to try and review what we
left kind of in the hopper last week. I told you that I would
ask you to check to see if there were any new documents, any
other material you found that were responsive either to
discovery requests or to the monitor's inquiry, and you
indicated you'd do that and let me know if you found anything
else this week.
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. That was the
only document I was concerned about.
THE COURT: In addition to the 60 or 65 new
identifications that you talked about last week?
MR. MASTERSON: Correct.
THE COURT: And those have been given, I think you
said last week, an IA number.
MR. MASTERSON: That's correct, and the IA
investigation is ongoing at this time.
THE COURT: I will tell you, and I think we discussed
this last week, you were going to -- the monitor has
requested since the 1500 documents were provided to the Court,
the monitor has requested what IA number and/or investigations
are associated with those documents. You indicated, I believe,
that you'd find that out: whether there was an IA
investigation; what the number was.
MR. MASTERSON: Well, I did part of that.
THE COURT: All right.
MR. MASTERSON: There is an ongoing investigation.
Interviews are being conducted. I forgot to find out the
number, Judge. I apologize. I can find that out today and let
anyone who wants to know know the number.
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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: 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
regarding the LEAR policy, and that that -- the LEAR policy
required that this be done, and I inquired regarding the policy
section, SID, CID. I talked to everyone regarding this issue,
and they informed me that there is no such documentation or
tracking mechanism to determine when Border Patrol or ICE was
contacted, or when deputies contacted the supervisor, other
than if it would be in a DR, and they would all need to be
hand-reviewed.
THE COURT: When you say "DR," you mean departmental
report?
MS. IAFRATE: I do. I apologize.
THE COURT: And they'd all have to be hand-reviewed?
MS. IAFRATE: Yes. So early on, Judge, what we
discussed was that data dump that was provided with some coding
so that the more likely cases that would fit the scenario
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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: Ms. Wang, do you have anything to say on
this?
MS. WANG: Yes, Your Honor. To clarify, there were
two categories of documents that the Court ordered MCSO --
rather, the defendants -- to search for: One was documents
reflecting contacts between deputies and supervisors where
there was some detention pursuant to the LEAR policy, and the
other was any documents reflecting contacts between MCSO
personnel and federal immigration authorities that would also
tend to suggest that there was some detention for -- based on
immigration status.
Ms. Iafrate has just stated what defendants' position
is on those documents. We had pointed specifically to
deposition testimony by Sergeant Brett Palmer back in 2010. He
testified that pursuant to the Human Smuggling Unit's LEAR
protocol, such contacts and detentions pursuant to the LEAR
protocol should be documented either in a field investigation
card, known as an FI card, or in a narrative section for an
informational report.
We have asked Ms. Iafrate to produce a copy of that
LEAR protocol that Sergeant Palmer described. We had no such
document in the pretrial disclosures by the defendants, and we
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would like to see that. We will follow up with Ms. Iafrate to
try to get some documentation along these lines, but we do want
to see a copy of that LEAR protocol.
THE COURT: Any problem with that, Ms. Iafrate?
MS. IAFRATE: No, Your Honor.
THE COURT: All right. 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
finished our review on Wednesday and sent it over to the
County's vendor to process. They have processed batches of
them. They are still processing.
I received an e-mail from the vendor on Monday that
said as long as we -- meaning my firm and Jones, Skelton --
provided all of our review documents by Wednesday night --
which we actually finished early on Wednesday -- that they
would definitely get the rest produced by Friday.
That's the last comment that I had received. I do
know that they have continued to be produced.
THE COURT: All right. Who's speaking on this for
plaintiffs?
MR. YOUNG: Mr. Young here, Your Honor.
We did get 5,200 or so files on Wednesday; we had
gotten on August 28 about 2,000 files. As I understand it,
there were 16,000 documents that were being reviewed for
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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: What do you want me to do about it,
Mr. Young?
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
April; they were supposed to be turned over, under your most
recent order, by August 21; they've not been turned over.
We are doing the best we can. We have a hearing
that's set to begin on September 22nd. We have depositions
that are scheduled now mostly to take place in the time
between -- well, all, mostly -- in the time between now and
then, some of them just a day or two or three before the
beginning of the hearing.
We're going to do our absolute best, but as I've
stated earlier, it may be that even things that they give us
this week, if we haven't had a chance to look at them before
the 22nd, we're going to have to bring witnesses back in order
to get to the bottom of things.
There are a lot of unanswered questions in this case.
We don't know what happened to the Palmer training scenario,
for example. That was, to the extent we know about it, in
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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
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
produce their material, rather than our giving it to them.
THE COURT: Well, that will be fine. You're here.
They said they'd get it to you today. Let's get it to
Mr. Young today.
MS. IAFRATE: I actually was referring to the other
parties. Of course we were going to give them to plaintiffs.
If any other nonparties or other attorneys are
interested, they have been requesting some of these as well,
and so I would encourage them to participate as well.
THE COURT: All right.
Mr. Young, you raised last week a possible issue
pertaining to attorney-client privilege and/or work product
immunity document production.
MR. YOUNG: Yes. We had raised an issue with respect
to some documents on a log that had been provided by the
Maricopa County Attorney's Office. 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
as to those I will defer to Ms. Wang to note whether there are
any remaining issues. I know there are some not necessarily
privilege issues, but production issues, but I'll defer to
Ms. Wang on that.
THE COURT: Ms. Wang.
MS. WANG: Thank you, Your Honor. We've had a lengthy
correspondence going three ways between Ms. Iafrate, Ms. Clark,
and plaintiffs, and I think we do have a couple of issues ready
to tee up for Your Honor to address.
Overall, Your Honor, I just want to point out that
Mr. Casey -- as Ms. Clark, I'm sure, will explain -- has
recently discovered, I think as of yesterday, discovered
additional documents that he, I believe, has just logged this
morning and provided to us, but I've not had a chance to look
at that log yet.
The situation is this. Tim Casey turned over a paper
client file for this case to Ms. Iafrate's office, and he has
been very clear throughout our correspondence over the subpoena
and document requests to him that he will not produce any
documents to plaintiffs pursuant to our document request
without an express waiver of any privilege issues and direction
from Ms. Iafrate.
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Ms. Iafrate has, as recently as September 2nd, taken
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
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
relating to the pretrial discovery violations, which we did
request from Mr. Casey. He has logged a number of documents
and again deferred to Ms. Iafrate for direction on whether to
disclose those documents or not. And we do not have any
privilege log from Ms. Iafrate for the Casey client file that
is now in her possession.
Third, Your Honor, we believe that the Court's order
of May 14th, 2015 finds that there has been a subject matter
waiver of any attorney-client privilege or work product
protection over documents relating to violations of the
preliminary injunction order. There are a number of those
documents, including unredacted copies of Tim Casey's billing
entries, notes by Mr. Casey, communications by Mr. Casey to
co-counsel or to his client and then-client, on the subject of
the preliminary injunction order, and those documents have not
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been produced.
Fourth, Your Honor, there are a number of documents
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. We believe that under the
Court's prior orders, those documents also should be disclosed.
And finally, Your Honor, I believe Ms. Iafrate has
acknowledged this, but Chief Sheridan did waive communications
with Christine Stutz relating to -- rather, I should say that
we believe that on the record it was clear that there was no
privilege attached to communications between Chief Sheridan and
Christine Stutz as to the events of May 14th, 2014, or that any
such privilege has been waived by Chief Sheridan. I believe
Ms. Iafrate has acknowledged that, but we still do not have
documents fitting that category.
So to sum up, Your Honor, we would ask that the Court
now order both Mr. Casey and defendants to disclose all
documents in their respective possession in those categories.
THE COURT: Ms. Clark, do you wish to be heard on
this?
MS. CLARK: Judge, I believe that Ms. Wang has
accurately recited to you what the issues have been between
plaintiffs, Ms. Iafrate, and me on behalf of Mr. Casey.
Obviously, he's got ethical and legal duties not to release
documents unless he either gets a written direction from
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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. He
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: All right. Ms. Iafrate.
MS. IAFRATE: Thank you, Your Honor.
First of all, regarding Chief Sheridan's testimony
regarding his communication with Christine Stutz, that was not
an overall waiver of all communications regarding anything.
THE COURT: Let me just say, and I will say to sort of
shortcut this, as I recall that testimony, he indicated that
when he was speaking, I think, with Chief Trombi and Christine
Stutz, that he neither sought nor did he receive legal advice.
MS. IAFRATE: Correct. That was his testimony. That
is not an overall -- what I hear plaintiffs saying that I
agreed to, which I did not, was that any communication that
Christine Stutz authored somehow is now waived, which is --
THE COURT: All right.
MS. IAFRATE: -- not accurate.
THE COURT: Ms. Wang, do you want to be heard on that?
Because I will say that I've just indicated what my
recollection of Deputy Chief Sheridan's testimony was, and to
me, that does not constitute a subject matter waiver.
It may constitute a waiver with respect to that
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CV07-2513, Melendres v. Arpaio, 9/4/15 Status Conference 19
conversation. It's not a waiver, because the privilege is not
applicable, and I think we had this discussion at the time.
MS. WANG: Your Honor, to clarify, we don't believe
that there was a subject -- a broad waiver of any
communications with Ms. Stutz. Our position is that
communications between Chief Sheridan and Christine Stutz
relating to the events of May 14th, 2014 have been waived.
THE COURT: Well, I'm not sure --
MS. WANG: Or rather, the description of Ms. Stutz's
role in those events made it clear that there was no privilege.
THE COURT: Well, I will agree that there is no
privilege in the conversation specified. But I'm not sure, for
example, that Ms. Stutz didn't participate in the earlier
meetings, and I'm not going to find a general subject matter
waiver with respect to those meetings.
Do you understand what I'm saying?
MS. WANG: I do understand, Your Honor.
THE COURT: All right. So I do not believe, and I
haven't -- I don't know that I've made a ruling one way or
another. I think that I said that I was not convinced that
Ms. Iafrate's argument -- or when Ms. Iafrate asked, I think it
was Chief Deputy Sheridan, I can't remember who, maybe it was
Sheriff Arpaio, that the attorneys were silent, I think my
comment was that silence of counsel is not the same thing as
advice of counsel. So while it got pretty close to the
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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
conversation is not privileged.
MS. IAFRATE: I understand, and that was your ruling
at the time, Your Honor. And I'm not contesting that ruling;
I'm contesting this overall anything that Christine Stutz
participated in --
THE COURT: Right.
MS. IAFRATE: -- or authored.
THE COURT: Do you have any problem preparing a
privilege log to the extent there are any documents between
Ms. Stutz and the client?
MS. IAFRATE: It was already done.
THE COURT: All right. So have you completely
identified all communications between Ms. Stutz and the client
in the privilege log?
MS. IAFRATE: Yes.
THE COURT: Do you have any dispute as to that,
Ms. Wang?
MS. WANG: Not at this time, Your Honor. I think that
what we should do is pursue this and try to develop more
information when we depose Chief Sheridan.
THE COURT: All right. So that was number one.
MS. IAFRATE: Okay. I'm actually going backward, if
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that's okay.
THE COURT: Sure.
MS. IAFRATE: Okay. So the next one is the privilege
log regarding Chief MacIntyre's communications. The judge has
already ruled on that that anything authored or sent to Chief
MacIntyre is not privileged.
THE COURT: I think that's correct.
MS. IAFRATE: That is your ruling, whether I agree
with it or not.
THE COURT: Right.
MS. IAFRATE: But Your Honor, the privilege log that
Ms. Wang is talking about -- you and I discussed this last
week -- this log was prepared by Mr. Casey's attorney, and then
I commented on whether further things should be revealed or
not. I did the same thing with the County's e-mails, and as it
relates to Jack MacIntyre, anything that related to
Jack MacIntyre I said should be disclosed.
THE COURT: All right. So it has been?
MS. IAFRATE: I don't know if it has been or not,
because the subpoena duces tecums weren't addressed to me; they
were addressed to the County.
THE COURT: All right. So you have authorized
Mr. Casey to disclose --
MS. IAFRATE: Yes.
THE COURT: -- anything -- any communication sent to
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Chief MacIntyre.
MS. IAFRATE: Yes.
THE COURT: 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. There are a lot of
documents flying around, there's privilege issues, waiver
issues, and we have asked for written direction.
I'll take notes, and I'll certainly review the
transcript of today's proceeding, and we're getting it on the
record and that is all good and what Mr. Casey has been looking
for. But up to today we had been asking for written
authorization for any releases, and that's for obvious reasons.
MS. IAFRATE: Your Honor, that has been done. So I
was given a privilege log from Mr. Casey's attorney. My
comments were things such as this: Court already deemed no
attorney-client privilege applies. Court already deemed no
attorney-client privilege applies. I gave the authorization of
if you believe that this is privileged, it's already been ruled
on and no privilege applies.
THE COURT: Okay. I think it's pretty clear here that
you are directing Mr. Casey that he can -- he can and should
provide, pursuant to the Court's ruling --
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MS. IAFRATE: Correct.
THE COURT: -- documents on which he corresponded with
or copied Chief MacIntyre.
MS. IAFRATE: Correct.
THE COURT: All right. Ms. Clark, that's going to be
sufficient. It's on the record.
MS. CLARK: Okay.
MS. IAFRATE: Your Honor, regarding the May 14, 2015
subject matter waiver regarding violations of the preliminary
injunction, I wasn't tracking that argument. I would like an
opportunity to further speak with Ms. Wang regarding --
THE COURT: Right.
MS. IAFRATE: -- that issue.
THE COURT: I will say that I do believe that I have
already determined that because of -- I think Sheriff Arpaio
indicated a number of different reasons, but one that I think
immediately comes to mind, I think he invoked advice of counsel
as a defense, and I think I did rule.
MS. IAFRATE: I do recall that topic, but I would like
to further review the specifics before I argue on that point.
THE COURT: Well, that's fine; you may do so. But I
will tell you that there's no need to argue if you go back and
look and find that I did rule that there was a subject matter
waiver.
MS. IAFRATE: Understood.
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THE COURT: And I believe that I did so rule as it
pertains to advice given on the preliminary injunction. I'll
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.
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
agreement I mentioned earlier with respect to the items on the
MCAO log. And if there's some question about that that
Ms. Iafrate has, I may want to bring -- I may want to discuss
that issue more, because I don't want there to be any
misunderstanding as to what we've talked about.
MS. IAFRATE: Your Honor, if you could believe it, we
had reached an agreement before court regarding those documents
that Mr. Young requested. I don't know what further there is
to discuss.
I talked to Mr. Calderon, who is the County's
attorney, and said, We're going to give up these documents. So
I don't know why we're further having this conversation --
THE COURT: All right.
MS. IAFRATE: -- regarding 1 through 48.
THE COURT: Okay. I will not assume that there's any
bad faith on anybody's part; it's just some difficulties in
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communication. Fortunately, or unfortunately, we see each
other very often, and if this can be resolved, let's resolve
it; if not, we'll take it up next Thursday.
MS. IAFRATE: Very well. It was resolved.
MR. YOUNG: Thank you. I'm satisfied, based on what
Ms. Iafrate has now said.
THE COURT: All right. Thank you.
MR. YOUNG: Thank you.
MS. IAFRATE: Regarding new e-mails, Your Honor, from
Mr. Casey, I'm not aware of that issue.
THE COURT: I'm sorry, the what?
MS. IAFRATE: The new e-mails that were recently
discovered by Mr. Casey, Mr. Young mentioned it in the hallway
right before we walked in. That's the first notice that I
know, so I can't comment on that.
THE COURT: Okay. Let me just say -- well, I'll let
you finish, and then I wasn't quite sure I understood exactly
one or two aspects of what Ms. Wang said, so I'll seek
clarification if I need to.
MS. IAFRATE: Okay. And then, Your Honor, the
correspondence that has been going around and around has been
dealing with a subpoena duces tecum to Mr. Casey. And so my
direction had always been: I do not represent Mr. Casey.
However, I do hold the privilege on behalf of my client.
THE COURT: Um-hum.
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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. I have
participated to the extent that my client does not waive the
privilege. That's why he did not give a written letter saying
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
review regarding whether there's any privilege that should or
could be waived.
THE COURT: All right. But the problem is to the
extent that you may have documents that are no longer in
Mr. Casey's possession, I assume that you are providing those,
to the extent that I've ordered production.
MS. IAFRATE: To the extent that you have ordered
production, yes, Your Honor.
THE COURT: Okay. And that would apply with these new
documents as well, if in fact they're documents that are in
your possession.
MS. IAFRATE: Correct.
THE COURT: All right.
MS. IAFRATE: But I don't know what those documents
are.
THE COURT: I understand that. I understand that.
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I'm just trying to set forth the clarification for you to
proceed and --
MS. IAFRATE: Very well.
THE COURT: -- to resolve this matter.
MS. IAFRATE: 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
then she talked about documents that pertain to pretrial
discovery violations. And I wasn't sure, are we talking about
the boxes of documents that were discovered in early November
that Mr. Casey was going to review and turn over and then did
not turn over?
MS. WANG: No, Your Honor. I'm sorry for the lack of
clarity.
The subpoena duces tecum that we served on Mr. Casey
asks for three categories of documents: One is relating to
communications between Mr. Casey and his then-client relating
to the preliminary injunction order; the second is documents
relating to the production of video or audio recordings during
the pretrial discovery period; and the third was documents
relating to the events of May 14, 2014, and the collection of
video and audio recordings. So in essence, the three
categories of documents we requested from Mr. Casey track the
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three grounds for contempt outlined in the order to show cause.
We have received no documents relating to that second
category of production of video and audio recordings during the
pretrial discovery period. Ms. Clark did provide us with a
privilege log on that subject, but we have received no
documents whatsoever from either defendants or from Mr. Casey
on that topic.
The other point I want to make, Your Honor, in
response to what Ms. Iafrate just said, is that Mr. Casey has
taken the position that he turned over his entire client file
to Ms. Iafrate and it is now in her possession, and he did not
retain a copy of that client file.
He has now discovered some electronically stored
documents which, as I understand it, may be a subset of that
paper client file that is now in Ms. Iafrate's possession. But
to my knowledge, we have had no documents produced by
Ms. Iafrate's office in response to the subpoena to Mr. Casey.
And that is the overarching issue on which plaintiffs are
seeking the Court's guidance and an order, because I don't
believe Ms. Iafrate thinks she has any obligation to search and
turn over documents that were in Mr. Casey's client file but
that are now in her possession.
So essentially, plaintiffs have been in a situation
where Mr. Casey has pointed us to Ms. Iafrate and Ms. Iafrate
has not produced documents.
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THE COURT: Ms. Iafrate.
MS. IAFRATE: Your Honor, as related to the subpoena
duces tecum, that is correct. The subpoena duces tecum was
addressed to Mr. Casey and was handled by Mr. Casey's attorney.
THE COURT: 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: Very well.
THE COURT: All right.
Does that clarify the issue, Ms. Iafrate?
MS. IAFRATE: Ms. Wang.
THE COURT: I'm sorry. Ms. Wang?
MS. WANG: Yes, Your Honor. Thank you.
MS. CLARK: May I understand, then, whether there's
anything that Mr. Casey is required to produce at this time?
MS. WANG: Your Honor, plaintiffs' position is that
Mr. Casey should continue to search, because we don't know
whether there are any documents that he's recently discovered
that are electronically stored that are not in that client file
he turned over. In other words, there may be a nonoverlap, and
we believe that Mr. Casey has an independent obligation to
search for those documents.
MS. CLARK: Judge, if I can just clarify that, I'm
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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? Ms. Clark,
you're going to need to slow down. You're going to need
to speak --
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
quite confusing to hear that there are newly discovered
documents, and I heard you specifically ask that question of
what they are, so let me provide some clarity on that.
It's absolutely accurate that -- what Ms. Wang just
said that the entire hard copy file was produced to
Ms. Iafrate. My understanding is what we're talking about are
e-mails or any documents that may have been attached to
e-mails.
Mr. Casey's firm practice was to print hard copies of
all e-mails on a monthly basis. When that was done and
complete -- I'm guessing it was coinciding with his billing
cycle -- they would then delete the e-mails from his office
server. So a complete set of the hard copies of the e-mails,
which included any attached documents to e-mails, was provided
to Ms. Iafrate in December of 2014.
When Mr. Casey received the first subpoena from
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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.
What happened Wednesday, two days ago, was that he
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
system and saved on a hard drive. Mr. Casey discovered that on
Wednesday. He's very embarrassed by that fact, but that's what
happened. We got on the phone -- he and I and Ms. Wang
yesterday -- he described that for Ms. Wang.
This morning, just before the hearing, I sent Ms. Wang
and copied Ms. Iafrate a log containing the e-mails that he
located on that external hard drive. And as far as I
understand, it is indeed, as Ms. Wang has said, a subset of the
e-mails that have already been produced to Ms. Iafrate, and
that there is complete overlap. But obviously, we have his
call scheduled with Ms. Wang and Mr. Casey to go over the log
and ensure that that is the case.
THE COURT: All right. Well, I'll expect that that
hard drive will be assessed to determine whether or not there
is any other materials that may be responsive.
MS. CLARK: Absolutely, Judge.
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THE COURT: Anything else pertaining to these issues?
MS. WANG: No, Your Honor, not from plaintiffs.
We do plan to continue to meet and confer with
Ms. Clark and Ms. Iafrate. There are some other documents that
we will plan to discuss with them, but those are not yet teed
up for the Court.
THE COURT: Have we arrived at factual stipulations
regarding the 50 hard drives?
Mr. Masterson, you're standing up. I assume you're
the man who's going to cover this, or the person.
MR. MASTERSON: At least the guy that's going to
attempt to cover this.
THE COURT: All right.
MR. MASTERSON: I've had a few phone conferences with
Mr. Gomez from the Department of Justice, Mr. Walker was
included on at least one of those, and yesterday we received a
proposal on dealing with the hard drives for Mr. Gomez.
I didn't see it till this morning, and I've -- I
should have brought more than one copy and I did not. I know
Mr. Young has it; Mr. Walker has it.
May I give it to your clerk, and the Court can take a
look at it as well?
THE COURT: Sure.
MR. MASTERSON: (Handing to clerk).
MR. YOUNG: Your Honor, may we get some clarification?
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Is what Mr. Masterson handed you Mr. Gomez's Thursday
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
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
monitor's office that he meant to include him on this e-mail at
2:12 p.m. I guess it doesn't seem to me like these times match
up very well, but those are the dates and times that I have on
the copy given me from Mr. Masterson.
Let me just say, before we move to Mr. Gomez's
suggestion, Mr. Masterson, it seemed to me when you identified
the two documents last week that there was -- you know, there's
no dispute now, or at least -- and I don't mean to misstate
something, so if I misstate something, don't hesitate to
correct me. But there's no dispute that the 50 hard drives are
the 50 hard drives given by Mr. Montgomery to the MCSO; there's
no dispute that Mr. Montgomery said that those contained the
secure information, or confidential information that he had
acquired from his contract work for the government that enabled
him to reconstruct certain files; that the MCSO had looked at
those files, or had, you know, had at least engaged those two
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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
already stipulated.
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. I
mean, I know that those are the 50 hard drives that Montgomery
provided. Whether those are all the hard drives that
Montgomery has or claims he took, I don't know that. I know
that the hard drives in the marshal's possession are the
hard drives that were examined by the two folks we discussed
last week, and I know what -- I know what that two-page memo
says from those two gentlemen.
THE COURT: Which is?
MR. MASTERSON: I know those --
THE COURT: Do you mind characterizing that for me, or
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
than these do not appear to be any e-mails from a
governmental-type source.
THE COURT: Okay.
I'm just wondering, I mean, and I guess what I was
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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.
As it pertains to this litigation, it seems to me that
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
true -- but if you're going to take the position that there's
material within those hard drives from which you are asserting
Montgomery could have produced the schematics and the
time lines, I think it's your duty to come forward and show us
where that is.
MR. MASTERSON: We are not going to take that
position.
THE COURT: Okay.
MR. MASTERSON: And I think I revealed before, and the
only problem I'm having with all the -- I would love to say,
Everybody, you can look at it to your heart's content.
Two things prevent me from doing that: Number one, I
don't want to pay for it; number two is privilege issues. I
don't think that --
THE COURT: Well, you don't have any privilege issues
with respect to that, do you?
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MR. MASTERSON: My clients might, because what --
THE COURT: I can't see it. Tell me how they might
have any privilege issues.
MR. MASTERSON: 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? Absolutely not.
THE COURT: I get your point now.
MR. MASTERSON: Okay.
THE COURT: That if it contains -- if it in fact
contains material which you're not claiming that it does
contain, there is the potential privilege.
MR. MASTERSON: Exactly. And that's why I'm fine with
what Mr. Gomez has proposed. That seems pretty reasonable to
me, although I still don't think we need to look at any of it.
But if someone feels we have to look at some of it, I'm okay
with Mr. Gomez' proposal, except it doesn't help me when --
because when you get down to one of the paragraphs, after we
reach an agreement on search terms, and if responsive documents
are identified, then the U.S. would conduct an expedited
review.
THE COURT: Can you point me to the number, please?
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MR. MASTERSON: No, I can't, because I didn't bring my
own copy. It's maybe number 5 down --
MR. YOUNG: I think it's item 8, Your Honor.
THE COURT: 8? 5 through 8, or 8? Oh.
(Pause in proceedings.)
THE COURT: So what's your problem, Mr. Masterson,
again?
MR. MASTERSON: My problem is I completely understand
the United States' position that if there are classified
materials on there, they want to see what those classified
materials are, and they would prefer that I did not see those
classified materials. I understand that, and that makes
complete sense to me.
The problem I have is if the United States looks at
the documents first and there are client-protected materials in
there, then I'm not going to know that, and I can't really go
get -- I can't talk it over with my clients, because it's not
as simple as me walking to Chief Sheridan and saying, Hey, is
it okay if we let the United States --
THE COURT: How about we do this? How about we do
this? When you identify key words, why don't you identify key
words that would be indicative that your attorney-client
communications have been identified or are contained in those
documents? And if they are, then the United States must seek
further order of this Court before it reviews those documents.
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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: 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
is just having a protective order, and similar to a clawback
order I -- it's done in many, many cases. We've done it here
at the Department of Justice in the Civil Division.
I'm not sure if Mr. Masterson identified certain key
words that he believes is going to identify privileged
information, we're not really going to know whether it's
privileged or not, and there may be some documents that are
responsive to that key word search. If I understand what
Mr. Masterson is proposing, at that point we would come and ask
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
responsive to, you know, the intended search, but you may also
pull other documents. And so I would just recommend that we
just do a, you know, a privilege order and we move from there.
I mean, there is a real possibility that there may not be any
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documents that are going to be responsive to the key word
search, but --
THE COURT: 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
whole bunch of ESI materials to the other side, but we have
this clawback in case there's some privileged materials in
there: They can't use them; we'll get them back.
Here, in this situation, if any of this stuff is true,
I don't know where I would start with who to go to, because it
could be hundreds, thousands of clients.
THE COURT: Well, how about this, though? I mean, you
don't think, I gather nobody really thinks, that there's any
information in there, as indicated by Mr. Montgomery. If
that's case, the United States -- and that seems to be most
likely the case -- if in fact anything is discovered, then why
wouldn't a clawback work?
MR. MASTERSON: No, I think it would. I think it
would work, Judge. I'm just saying you really can't get
approval from a client to do that.
THE COURT: Well, I understand, but why don't we
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proceed that way. And then, if there are any issues, I'm going
to make it clear to you, Mr. Gomez, that a clawback means a
real, real clawback. 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. And if we need
procedures for you to disclose that to, for example,
Mr. Masterson and/or the Court in camera, we can do that at the
time. But a clawback is a real clawback; they're not going to
be able to use that for any purpose whatsoever.
MR. MASTERSON: Thank you, Judge.
THE COURT: All right. So we'll proceed with that.
MR. MASTERSON: Now, my position is still we don't
need to look at any of this stuff, but --
THE COURT: I get it. And, you know, I've made clear
that if -- and I think you've made clear -- that if it was your
position that you think there's anything in there from which
Montgomery could have constructed these time lines and
schematics that he has apparently constructed, it's your
obligation to disclose that. And your position is there isn't
anything in there from which he could have constructed those
things.
MR. MASTERSON: Well, we're certainly not going to go
look for it. We don't think there is, and I'm not going to
look at 50 hard drives that --
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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. I accept that your experts say what
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: Absolutely. Thank you, Judge.
THE COURT: All right. So we can proceed with DOJ's
proposed process for examination of the 50 hard drives with the
clawback procedures as Mr. Gomez has proposed and as is
acceptable to Mr. Masterson.
Is there anybody else who wants to say anything on
that?
All right. We had some discussion about deadlines for
interrogatories and requests for admission. It does seem to
me, as I've said before, that in light of the monitor's
interviews that everybody has copies of, in light of the issues
like the one we just discussed, there may be whole areas that
we can just arrive at stipulations, and so it does seem useful
to me to go through this exercise to the extent we could save
some time in the upcoming hearings.
Did we arrive at agreement on those?
MR. YOUNG: I think on the interrogatories and
requests for admission, Mr. Segura has been having some
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discussions, and I would defer to him.
THE COURT: Mr. Segura.
MR. SEGURA: Good morning. Good morning, Your Honor.
This is Andre Segura.
Defendants have proposed a response date of September
15th. We had originally proposed the 10th, but we are amenable
to the 15th and would just ask that the Court issue an order to
that effect.
THE COURT: Is that correct?
MR. MASTERSON: Yes, Your Honor.
THE COURT: All right. So I'm going to order that the
responses to the interrogatories and requests for admission be
filed by the 15th of September.
MR. YOUNG: Now, Your Honor mentioned other fact
stipulations. I don't think we're as far advanced on that.
There have been certain agreements of fact that Sheriff Arpaio
and Chief Sheridan entered into in March of -- or filed in
March of this year. I suspect that we may try to enter into
further agreements as we get into the hearing. We're still --
actually just started depositions for this latest round.
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
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
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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. It's large enough, and has the ability for
you to bring in your --
Were you going to video this one? Is somebody going
to video this one? I can't remember.
MS. WANG: Yes, Your Honor. I think we'll reserve
that possibility.
THE COURT: All right. Well, there's room to do a
video. However, Room 306A is the room next to the room in
which the grand jury convenes. There is no currently scheduled
grand jury convening, but that doesn't mean there won't be.
And if there is, we're not going to do it in that room, we will
do it probably in a courtroom, most likely Courtroom 606, and
we'll just set up in the courtroom.
Ms. Clark, you in your notice said you want me to sit
through the entire deposition, is that correct?
MS. CLARK: Well, Judge, yes.
THE COURT: And why would my presence be necessary for
the entire deposition?
MS. CLARK: And, Judge, of course, Mr. Casey's very
cognizant of your time and wouldn't make that request lightly,
but it does seem that it's going to be very difficult to
imagine any questions that are not going to involve either
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you an opportunity.
MR. MASTERSON: I have so many concerns. I don't have
a concern other than was expressed by Ms. Clark. I mean,
there's so much more than just privilege --
THE COURT: Okay.
MR. MASTERSON: -- and work product that's going to be
involved here.
THE COURT: 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
to make sure that Magistrate Judge Boyle doesn't have to be
there, but Magistrate Judge Boyle, although he held that there
was an attorney-client privilege waiver and a partial waiver of
the work-product immunity, held that there was still
work-product immunity in a letter from Mr. Casey to -- I
believe it was the sheriff -- that was in November of 2013
relating to the Grissom investigation. We covered this last
time. I think there is very little relevancy, in light of my
past rulings, that pertains to the Grissom investigation. I
identified the only possible areas I could think of.
But if anybody wants to ask about that letter, if
plaintiffs are going to ask about that letter, and you want to
attack the last rul- -- or have Judge Boyle or anybody revisit
his rulings which have left work-product immunity intact as to
part of that letter, you're going to have to tell me so that I
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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: I'll defer to Ms. Wang on this, but I
think we did cover this last time, Your Honor.
THE COURT: All right. Ms. Wang.
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: All right.
MS. WANG: And I'd advised Mr. Casey, through
Ms. Clark, of that.
THE COURT: I'm just going to raise some issues now
that I think are worth thinking about now. But Mr. Masterson,
a couple of weeks ago, suggested that we come up with something
like a joint final pretrial order for this next round. And I
think that there is merit to that, although it may be something
that we kind of have to hammer out after you've done whatever
depositions you're going to do. And so I would just, though,
think that you might want to consider and talk amongst
yourselves how you can do this mutual disclosure to each other
and to the Court before the hearings begin. It does seem to me
to have merit, and it also might facilitate a discussion of the
factual stipulations that we've already raised in this matter.
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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. We've got a deposition
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.
But we understand the Court's need in terms of order
and having things laid out. Obviously, we're going to have to
talk with counsel for defendants about witnesses and witness
order, so that everyone can be here, but we will definitely
have that discussion.
THE COURT: All right. Last time Mr. Walker had
filed, the morning of, a brief related to Maricopa County's
role in this litigation. I hadn't read it. I've read it now.
I don't know if any party plans to respond, but Mr. Walker does
address the paragraph of the Ninth Circuit opinion which is
most relevant to me in his order, which is, to quote it: On
remand, the district court may consider dismissal of Sheriff
Arpaio in his official capacity because, quote, an official
capacity suit is, in all respects other than name, to be
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
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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,
Mr. Walker, and it might not, depending upon what happens. And
so it just seems to me that now that Mr. Walker has filed that
motion, if this is going to be addressed, now is the time to
address it.
Does any other party plan to address Mr. Walker's
motion?
MR. YOUNG: We do plan to file a paper with respect to
that, and I believe it's due September 14. We are looking
closely at it, and I think we'll reserve our response to
that paper.
THE COURT: All right. Any other party --
MR. KILLEBREW: Your Honor, the United States, as
plaintiff intervenor, also plans to respond.
THE COURT: All right. Anybody else?
That was Mr. Killebrew, I believe, I'm sorry.
If you're on the phone --
MR. KILLEBREW: Yes, Your Honor.
THE COURT: -- please --
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