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

8/20/2019 Melendres v. Arpaio #1353 Sept 4 2015 TRANSCRIPT - Status Conference

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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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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


For Timothy J. Casey:

Adams & Clark, PCBy: Karen Clark, Esq. - Telephonically520 E. Portland Street


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.


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.


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.


MR. WOODS: Terry Woods, Your Honor, for the


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nonparties Stutz and Liddy.


MR. EISENBERG: Good morning, Your Honor. David

Eisenberg making a special appearance on behalf of Lieutenant

Joseph Sousa. He is present.


MR. EISENBERG: Good morning.

MR. OUIMETTE: Good morning, Your Honor. David

Ouimette specially appearing for Deputy Chief MacIntyre.


MR. CALDERON: Good morning, Judge. Ernest Calderon

on behalf of Maricopa County Attorney Bill Montgomery and his

office.


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.


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 --


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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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.


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 --


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: 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.


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.


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.


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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Documents

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