Melendres # 1053 | Melendres v Arpaio - d.ariz._2-07-Cv-02513_1053 -Order Filed Under Seal
Melendres v. Arpaio #1354 Sept 10 2015A TRANSCRIPT - AM Status Conference
Transcript of Melendres v. Arpaio #1354 Sept 10 2015A TRANSCRIPT - AM 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.
)))))))))))
No. CV 07-2513-PHX-GMS
Phoenix, ArizonaSeptember 10, 20159:05 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Status Conference)
Court Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix, 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, 9/10/15 Status Conference 2
A P P E A R A N C E S
For the Plaintiffs:American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm StreetSan Francisco, California 94111
American Civil Liberties Union FoundationImmigrants' Rights ProjectBy: Andre Segura, Esq. - Telephonically125 Broad Street, 18th FloorNew York, New York 10004
Covington & Burling, LLPBy: Stanley Young, Esq. - TelephonicallyBy: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065
Mexican American Legal Defense and Educational FundBy: Jorge M. Castillo, Esq. - Telephonically634 S. Spring Street, 11th FloorLos Angeles, California 90014
For the Defendant Maricopa County:
Walker & Peskind, PLLCBy: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140Phoenix, Arizona 85254
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq. - TelephonicallyBy: John T. Masterson, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036
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CV07-2513, Melendres v. Arpaio, 9/10/15 Status Conference 3
A P P E A R A N C E S
For the Movants Maricopa County Attorney's Office and MaricopaCounty Attorney William Montgomery:
Ridenour Hienton, PLLCBy: Ernest Calderon, Esq.Chase Tower201 N. Central Avenue, Suite 3300Phoenix, Arizona 85004
For the Intervenor United States of America:U.S. Department of Justice - Civil Rights DivisionBy: Puneet Cheema, Esq. - Telephonically950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530
U.S. Department of Justice - Civil Rights DivisionBy: Cynthia Coe, Esq. - Telephonically601 D. Street NW, #5011Washington, D.C. 20004
For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLCBy: Gary L. Birnbaum, Esq.1850 North Central Avenue, Suite 1400Phoenix, Arizona 85004
For Chief Deputy Gerard Sheridan:Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq. - Telephonically2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012
For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: Dane A. Dodd, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Lieutenant Joseph Sousa:David Eisenberg, PLCBy: David Eisenberg, Esq.2702 N. 3rd Street, Suite 4003Phoenix, Arizona 85004
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CV07-2513, Melendres v. Arpaio, 9/10/15 Status Conference 4
A P P E A R A N C E S
Also present:Chief Robert Warshaw, Monitor - TelephonicallyCommander John Girvin, Deputy Monitor- TelephonicallyChief Deputy Gerard SheridanLieutenant Joseph SousaRaphael O. Gomez, Esq. - Telephonically
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P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case number 07-2513,
Melendres v. Arpaio, on for status conference.
Counsel, please announce your appearances.
MS. WANG: Good morning, Your Honor. Cecillia Wang of
the ACLU for plaintiffs.
THE COURT: Good morning.
MS. MORIN: Michelle Morin of Covington & Burling for
plaintiffs.
THE COURT: Good morning.
MR. MASTERSON: Good morning, Your Honor. John
Masterson for Sheriff Arpaio and MCSO.
THE COURT: Good morning.
MR. WALKER: Good morning, Your Honor. Richard Walker
on behalf of the County as defined in previous appearances and
filings with the Court.
MR. DODD: Good morning, Your Honor. Dane Dodd, Lewis
Brisbois, on behalf of former Chief Sands.
MR. WOODS: Terry Woods here, Your Honor, for Stutz
and Liddy.
THE COURT: Good morning.
MR. BIRNBAUM: Good morning, Your Honor. Gary
Birnbaum, special counsel for Deputy Chief John MacIntyre.
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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 in the courtroom.
THE COURT: Good morning.
MR. EISENBERG: Good morning.
MR. CALDERON: Good morning, Your Honor. Ernest
Calderon for nonparty William Montgomery, Maricopa County
Attorney, and his office.
THE COURT: Good morning.
Who do we have on the telephone?
CHIEF WARSHAW: Good morning, Your Honor.
Chief Warshaw and Deputy Monitor Commander John Girvin.
MR. YOUNG: Good morning, Your Honor. For plaintiffs,
Stanley Young, Covington & Burling, Andre Segura of the ACLU,
and Jorge Castillo of MALDEF.
MS. CHEEMA: Good morning, Your Honor. For the
Department of Justice Civil Rights Division, Puneet Cheema and
Cindy Coe.
MR. GOMEZ: Good morning, Your Honor. For Civil
Division, U.S. Department of Justice, Raphael Gomez.
MR. McDONALD: Good morning, Your Honor. Special
appearance -- this is Mel McDonald on behalf of Sheriff Joe
Arpaio. I am also covering this morning for Lee Stein and
Barry Mitchell, making special appearances for Chief Jerry
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Sheridan.
THE COURT: Anyone else on the phone?
All right. Last time we discussed the parties'
request for mutual experts on MCSO's Internal Affairs
investigation processes. That would require an additional
stage in this proceeding, and I have decided to allow that, but
we need to talk about scheduling.
In short, if we're going to do that, I want all the
testimony that could bear on the topic, all testimony other
than the experts' testimony to be taken care of in this next
round of resumed hearings.
I assume that the Department of Justice has their
expert. I assume that defendants, if they have -- they've had
thoughts about who they might retain and will now, if they
haven't already retained one, engage one, and that those
experts can have access to all the materials in the file to
date. Of course, some of the testimony yet to come I imagine
will also be relevant to their undertaking.
But it does seem to me that I would like to discuss
some obstacles to proceeding and how we can best resolve those
obstacles so that the next hearing won't just take --
needlessly take days, but will provide everybody with all the
the testimony other than the expert testimony that they're
going to -- that's going to be introduced in this contempt
matter.
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I did note early this morning, Ms. Wang, although I
haven't read it, that you have filed your motion to compel.
I've also noted that you've already scheduled depositions on
the 7th and 8th of October, or sometime in the break, in some
of the break dates in October.
It seems to me that we need to decide how I'm going
to -- we need to decide that motion to compel, so that if I am
indeed going to offer up other testimony, those witnesses
who -- or I'm going to require additional testimony, those
witnesses who have information that may be responsive to
questions can be deposed efficiently prior to the resumption,
or at least efficiently with respect to the resumption of the
resumed contempt hearings.
Ms. Wang.
MS. WANG: Yes, Your Honor. I would agree, we would
like to see a ruling before we depose witnesses who would touch
on the issues that are subject of the motion.
I have to say, the next such witness is being deposed
next Monday afternoon, and so plaintiffs' request is that we
have very expedited response briefing from defendants; and we
would respectfully request a ruling, if possible, by Monday
morning, so that we can go forward with that deposition, with
the Court's ruling to guide us.
THE COURT: Mr. Masterson.
MR. MASTERSON: Well, Judge, I haven't seen the motion
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yet. I'm pretty confident I know what it's about.
I see next Monday afternoon's deposition is Mr. Fax.
I'm not sure how much information Mr. Fax has on the issue
if --
THE COURT: Was it the meeting on the 17th that's the
subject of the motion?
MS. WANG: That's right, Your Honor. But as you'll
see when you do have a chance to look at the motion, we do
think that the waiver goes to the subject of advice given on
whether to disclose the Knapp IDs, the 1459 IDs, and we would
expect to ask Sergeant Fax questions about whether he had such
knowledge or participated in conversations about that.
THE COURT: Mr. Masterson, obviously, I would like to
handle this expeditiously but don't want to deprive you of the
fair opportunity to respond.
How much time do you think you need?
MR. MASTERSON: I mean, I'd like at least five days to
respond, Judge.
THE COURT: Okay. So that would put it next --
Wednesday? Let's see. Friday. We'll say five working days.
MR. MASTERSON: Okay.
THE COURT: So you've got today; you've got tomorrow;
you've got Monday, Tuesday, Wednesday.
Can you get it to me Wednesday night or Thursday?
MR. MASTERSON: We can get it to you by Thursday,
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Judge.
THE COURT: Okay. We have status next Friday, right?
MR. MASTERSON: Correct.
THE COURT: So if I give you until -- can you get it
to me Thursday morning?
MR. MASTERSON: Certainly.
THE COURT: Okay. So if you'll do it Thursday morning
before 10 o'clock, Ms. Wang, can you get me any kind of reply,
if you want, on a very expedited basis, and I'll try to let you
know by Friday night how I'm going to rule.
MS. WANG: We will do so, Your Honor. And at this
point I don't want to waive a reply, but we'll certainly file
it immediately so that you can rule by Friday.
THE COURT: All right.
MS. WANG: I would point out that Chief Deputy
Sheridan, who I would expect to depose on the subject, is
scheduled to go forward on Tuesday with his deposition. Given
the briefing schedule with five days for a response even if we
do waive our reply, and I'm not saying we certainly will, we
may have an issue where we will need to reopen depositions for
this limited purpose, and may need to do that in the evenings
during --
THE COURT: Well, here's my thought on that. I had --
MS. WANG: Okay.
THE COURT: -- an additional thought, see if it works.
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I've had you all hold dates, although we have not
firmly set any date. It seems to me that if in fact I'm going
to reorder testimony, you're going to at least have to redepose
Captain Bailey. And so if in fact people need to be -- their
depositions need to be reopened, how about we convene the first
day of the resumed hearing on the 23rd, the 22nd already being
scheduled as a resumption date, and I allow you to retake
everyone who you won't have already been able to take, in light
of my ruling, on the 22nd.
That will also, perhaps, give you more time to work
out the order of witnesses, who you're going to call, provide a
little bit of cross disclosure, because as I looked at this
last week, I do realize that you have been given very little
time. And while I do agree with Mr. Masterson that it would be
helpful to have a joint pretrial order of some nature, that may
give you a little time to try and work out stipulations and/or
incorporate in documents and testimony that you need, if in
fact that proves necessary.
Is that workable for you?
MS. WANG: I think that will work, Your Honor,
depending on how many witnesses will need to be reopened. We
may need to double-track on the 22nd, even if they're brief,
but we'll try to work that out.
THE COURT: All right.
MS. WANG: And we appreciate the extra day. That was
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very helpful.
THE COURT: Mr. Masterson, any comment?
MR. MASTERSON: My only comment is these -- I've been
in three depositions, and we're taking an unbelievable amount
of time in these depositions, and a lot of the time is spent on
issues which are not relevant to this dispute: not relevant to
the OSC; not relevant to the underlying lawsuit. In fact, we
spent an awful lot of time in a deposition yesterday on issues
which Mr. Young stated they weren't even going to raise.
So I understand that they may want to reopen
depositions and question witnesses, depending upon the Court's
ruling on the motion to compel. But these ought to be very
short depositions specific to the issues ruled upon in the
motion to compel. And we're not going to revisit old issues;
we're not going to take hours upon hours going into irrelevant
areas. And I would ask the Court to allow me to make
objections and instruct witnesses not to answer a little bit
beyond what Rule 30 allows me if we reach into irrelevant areas
during these follow-up depositions.
THE COURT: Well, I'll tell you what I will do. I'm
not going to allow you to instruct witnesses not to answer, but
I will be available on the 22nd, and if in fact you feel like
they're going -- retracking areas that have already been
covered, they're going beyond the motion to compel, call me up
and I'll make the ruling.
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MR. MASTERSON: Thank you, Judge.
MS. WANG: Your Honor, respectfully, I would just say
that I disagree with Mr. Masterson's characterization of the
depositions that have occurred and I would challenge him to
point to any irrelevant matters or matters where we're
replowing ground that was covered previously.
THE COURT: You know what? The deposition took place,
it's on the record, we're going to have the hearing, and so
we'll have the hearing. I will rule on relevancy during the
hearing.
It does seem to me, though, that as we get ready -- if
in fact we're going to call the third phase for remediation
experts, and if those experts are going to want to refer to the
monitor's report on the adequacy of the investigations, which
is at least as we have currently discussed it, we need to
provide the monitor access to materials that he may or may not
need in preparing that report. And one of the things, since we
combined his -- at your request, Mr. Masterson, since we
combined his interviews with depositions, I know he mentioned
that he was going to need to interview Chief Olson.
Now, I note that you do have Chief Olson's deposition
scheduled. I don't remember when. But is there any objection
to giving the monitor a copy of that deposition to see if it
covers the questions that he was otherwise going to cover?
MR. MASTERSON: I have no objection to that, Judge.
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MS. WANG: No objection, Your Honor. Plaintiffs would
not object to giving to the Monitor Team any of the deposition
transcripts.
THE COURT: Well, it seems to me that makes the most
sense.
Any objection to that, Mr. Masterson?
MR. MASTERSON: No objection, Judge.
THE COURT: All right. We also have, then, the
remaining issue, and I have not talked to the monitor and don't
know, but he's on the phone, the extent to which -- I mean,
we've identified 61 to 65 new identifications, I think,
recently. Prior to that we had the 1459, about half of which
seem to involve members of the plaintiff class, that are going
to require also internal investigations.
I am not inclined to postpone this whole hearing while
you do the investigation that relates to those documents, but I
don't know whether the monitor feels like he needs such a
postponement, and it may abide his observation of what you're
doing now.
And so I guess those are issues, Chief Warshaw, that I
wanted to raise with you today. Do you have any comment one
way or the other, do you know or are you going to have to wait
and see?
CHIEF WARSHAW: Your Honor, I think the best answer at
this particular time is that we wait and see. We have had
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communication with the new commander of the Professional
Standards Bureau, and it is our understanding that the MCSO is
first commencing its own investigation relevant to those IDs.
So we know very little about the progress, as the
exercise has just begun, so I would like to hold in abeyance
for a little bit any views that we may have on that until we
can get a sense about the course and conduct and scope of that
investigation.
THE COURT: All right. Well, it would probably be
something I at least want to raise with you generally. I
won't -- again next week. I don't necessarily expect you to
have an answer, but if you do have an answer or you can give us
some thoughts, that would be helpful.
CHIEF WARSHAW: Yes, Your Honor.
THE COURT: All right. We set a briefing schedule on
the motion to compel. You will have the response to me by
Thursday morning. What time did I say? I've forgotten.
MR. MASTERSON: 10:00 a.m., Judge.
THE COURT: Thursday morning at 10:00 a.m.
And then, Ms. Wang, you'll have any reply, if you're
going to file one, by Friday, shall we say noon?
MS. WANG: That's fine, Your Honor.
THE COURT: If in fact -- and we can determine this
next status conference -- if in fact, in light of that, we need
to do resumed depositions, I will assume that the resumed
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depositions will relate to the topics set forth in the motion
to compel and we will set those for what has otherwise been
scheduled as the first day of the resumed hearing, which is
September 22nd, which time you might also use, if you have any,
to shore up the sort of semiformal joint final pretrial order
that we have discussed.
In addition to those matters, I had a few other
matters I wanted to raise. Have all the Maricopa County
documents been provided that had to do with the archived PST
files?
MS. WANG: Your Honor, we do not know. We received
the last batch, let's say, which was voluminous, as they all
have been, on this past Tuesday, the 8th, due to some
logistical problems with the delivery. I'm not blaming anyone
for that, that's when we received the last batch, and I do not
know whether there are additional documents.
We also have not received yet the documents from Tim
Casey's files that Court ordered to be produced. I wrote to
Ms. Iafrate and to Ms. Clark to point out that Ms. Clark copied
me on a letter to Ms. Iafrate still requesting item by item the
defendants' authorization to release the documents.
However, Ms. Clark noted that she had handed over all
of the documents to Ms. Iafrate, and I believe under Your
Honor's order Ms. Iafrate should simply produce those
immediately, and I have had no response to my correspondence on
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that.
And one more note. Through some discussion between
plaintiffs' counsel and Mr. Calderon, counsel for the Maricopa
County Attorney's Office, I'm advised by him that we will
receive additional documents in response to our subpoena to the
MCAO next week midweek.
THE COURT: What are those documents?
MS. WANG: I do not know, Your Honor.
MR. CALDERON: Your Honor, Ernest Calderon. May I be
heard?
THE COURT: Yes. Would you please approach a
microphone, Mr. Calderon?
MR. CALDERON: Your Honor, may it please the Court,
it's been the county attorney's position to do as expansive a
search as possible relative to Mr. Young's inquiries in the
case. What we do is we prepare a privilege log. We believe
the privilege is owned by the sheriff. We turn over the
documents with a privilege log, comparable to what Ms. Clark
has done, over to Ms. Iafrate.
Last week Mr. Young raised a question or two about a
document which prompted us to think, our office to think: Were
we as expansive as possible in the search? So we asked our
client to expand their search. I understand that last night
they produced, I think, about a hundred documents, I'm not
sure. It was last night. My associate was texting me when we
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were outside.
So I don't know the volume of it, but I have a -- and
I don't know what the documents are. But I have assured
plaintiffs' counsel that by no later than the middle of next
week, my goal would be the first part of next week, to have the
privilege log and the documents turned over to Ms. Iafrate, of
course with a copy of the letter to plaintiffs so they can
discuss delivery and receipt of those documents.
THE COURT: All right.
MR. CALDERON: Thank you, Your Honor.
THE COURT: Thank you.
Do you have any insight for us, Mr. Masterson?
MR. MASTERSON: I wish I did, Judge, but I don't. As
you can see, this morning I'm all by my lonesome, and I don't
know the answers to some of these questions. I think I can
maybe provide help in one of the areas, and that's with respect
to Mr. Casey's file.
My understanding is that a privilege review -- to the
extent there are remaining privileges in those documents, the
privilege review has to be conducted. As you know or may know,
when we did the privilege review previously, we had four -- at
the Court's suggestion, we had four lawyers from our firm
participate in going through those, I think, 80,000 documents.
So we're willing to offer up our associates again to take a
look at Mr. Casey's file. I think that may be the holdup, but
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I don't know for sure, because I have not discussed that with
Ms. Iafrate.
THE COURT: Do you have any input on the last batch of
the archived files?
MR. MASTERSON: I have none on that.
THE COURT: All right. Thank you, Mr. Masterson.
Ms. Wang, this is what I'm going to --
Well, I'm sorry. Yes?
MR. DODD: Your Honor, may I be heard on that?
THE COURT: Certainly.
MR. DODD: The archived recovered PST files that have
been produced to us, I think we received one yesterday and two
the day before, those are non-searchable PDF. That's the
format in which they've been produced. We're not going to have
time or the capability to review 16,000 some-odd e-mails in a
non-searchable PDF format before the depositions next week and
the recommencing of the contempt proceedings the week after
that.
THE COURT: All right.
MS. WANG: Your Honor, plaintiff would join in
Chief Sands's request through Mr. Dodd.
I would point out that even though those files were in
a native PST format, and even though we requested that they be
produced in native format, it appears they are actually scanned
documents and therefore are not searchable, as Mr. Dodd said,
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and do not include the metadata. We had requested production
in that form.
And I did bring this up with Mr. Walker outside of the
courtroom back on August 28th, and we would, in short, join in
Mr. Dodd's request.
THE COURT: All right. Well, here's what we're going
to do. Ms. Iafrate requested to be excused from today's
hearing, and I authorized that because Mr. Masterson was going
to be here. I don't necessarily expect Mr. Masterson to know
everything Ms. Iafrate's handled.
But I think I've been pretty clear, and we started a
week ago on my order, and so I'm going to authorize you,
Ms. Wang, that if you don't have satisfactory responses to this
by the end of the day, you should call my chambers, and we will
have a status hearing by the end of the day to know where we
stand on these and if further order of the Court is needed to
provide direction.
I will also point out that as anxious as I am to
resume the contempt hearing, if we need to take more than the
22nd to iron out and make sure that we have documents, that
they're searchable, and that appropriate depositions can take
place, then we will to that.
But everybody's going to hold open all the dates I
gave you, and we will -- and only with the authorization of the
Court will the resumed hearing not begin on the 22nd. I've
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already discussed postponing it a day, and if I have to end up
postponing it more than one day, I will. But we will hold all
those dates, and as soon as we can resume, we will resume; and
we will get the documents fully produced in searchable format;
and we will get Mr. Casey's files reviewed for privilege and
disclosed to the other parties so that they have time, adequate
time to review them and conduct effective depositions. And I
am going to hold everyone's feet to the fire quite literally to
make sure that happens.
And so today, Ms. Wang, if you don't have satisfactory
responses to this, we will resume -- we will reconvene; we will
reconvene when Ms. Iafrate can be here, whether that has to be
the noon hour or whether it has to be at 5 o'clock; and we will
get answers to these questions.
MS. WANG: Thank you, Your Honor.
THE COURT: How about the LEAR protocol? Last time
you requested to have access to the LEAR protocol and
Ms. Iafrate said she'd provide that to you.
MS. WANG: We do not have that yet, Your Honor. I
wrote to Ms. Iafrate yesterday to point out that we do not have
the LEAR protocol. I also asked for a number of other
documents that have come up during depositions that have not
been produced previously, and I do not have a response to that
letter.
THE COURT: Would you please, in preparation for the
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hearing this afternoon, provide the Court and the other parties
with copies of all of that correspondence to Ms. Iafrate; would
you please list out the documents and the requests that you
have made that remain unanswered or unresponded to; and would
you be prepared to address them, and would you advise
Mr. Masterson and Ms. Iafrate of those precise issues that you
are wanting to address that I can have very precise answers.
MS. WANG: I will, Your Honor.
THE COURT: All right. Were there any other documents
that we should discuss other than what we have already
discussed?
MS. WANG: I don't believe so, Your Honor. I think it
will be covered by pointing to the correspondence that has gone
unanswered in the last few days.
THE COURT: All right. Mr. Masterson, did you have
anything you wanted to say on this?
MR. MASTERSON: On this particular topic, or in
general?
THE COURT: On this particular topic. I'll let you
raise whatever issues you have, as I usually do, before we
convene, before we --
MR. MASTERSON: I have nothing further on this one,
Judge.
THE COURT: Okay.
All right. What other matters did you have?
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MR. MASTERSON: Just a couple, Judge, and the first
one has to do with the 1459 IDs. We're still waiting on a list
from plaintiffs of the ones they want us to take a look at.
THE COURT: Why should they --
MR. MASTERSON: Well, because they're the ones who
have to make the determination, I think, whether these people
are in the plaintiffs' class.
THE COURT: No, they don't have to make that
determination. You have 1459 documents that you found that
were retrieved from Property that were not, as I understand it,
registered in Property.
Is that correct? Is my understanding correct?
MR. MASTERSON: They were in Property, yes.
THE COURT: And were they registered as part of any
report?
MR. MASTERSON: That I do not know.
THE COURT: Okay. Well, isn't that something that an
Internal Affairs office looks into?
MR. MASTERSON: Well, it could, Judge, but we also
have a number of fraudulent documents --
THE COURT: Let me just tell you I'm having my monitor
look at the adequacy of your Internal Affairs process. Part of
that adequacy, from my mind, is you making a determination of
what is worthy of investigation and what is not worthy of
investigation, and then the monitors' and the experts'
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assessment as to whether or not that is a competent and
adequate investigation.
MR. MASTERSON: Well, when we discussed this issue
previously in status conferences, the discussion revolved
around paring down the number of IDs that we needed to look at,
because there are clearly fraudulent IDs in there; there are
clearly IDs in there that do not belong to members of the
plaintiff class.
THE COURT: Well, if there are, you can make that
determination.
MR. MASTERSON: Okay. So everybody's going to happy
with my determination on what documents are relevant?
THE COURT: No. But the adequacy of your
determination will be subject to the monitors' review.
MR. MASTERSON: Okay. That's what we'll do.
THE COURT: All right.
MR. MASTERSON: The last issue I think you have
addressed, and that is my concern on starting up the hearing
again on the 22nd of this month.
As the Court knows, we have depositions set all the
way through the 21st. I've been in depositions for the last
two days all day, from 9:00 in the morning on Monday till
8 o'clock at night; on Tuesday -- or yesterday, excuse me, from
9:30 in the morning until 6:30 at night. We're not going to
have any time to prepare.
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And I realize plaintiffs' got an army of lawyers at
their disposal; we don't. We're not riding the money train.
We're kind of concerned with costs. So we've got a few
lawyers, but we need time to prepare.
Now, perhaps the day or two off, although now I guess
we're filling up the 22nd with additional depositions, but we
cannot prepare a defense when we don't know what the issues
are, we don't know who the witnesses are, we don't know what
the exhibits will be, in one day; it's just impossible.
THE COURT: Ms. Wang.
MS. WANG: Your Honor, a couple of points in response.
First, Your Honor, the fact that depositions are
running right up till September 21st is largely due to
defendants' delay in scheduling them. I wrote to them
initially, I believe, on August 17th requesting dates for all
the witnesses, and I did not hear back from defendants, without
further prodding, for almost two weeks.
Furthermore, the delay in having the depositions has
been due to defendants' failure to produce documents in a
timely manner. Many of those documents were scheduled to be
produced in February and we're still getting them now.
And so I would say that it is plaintiffs who have been
prejudiced by depositions running right up to the hearing time.
We do not have an army of lawyers any more than defendants do,
and we are prejudiced by having to prepare for the hearing
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itself as well as doing depositions. And we are doing the best
we can, but I really do have to object to Mr. Masterson's
characterization of the situation.
THE COURT: All right. Let me just say,
Mr. Masterson, that I did spend a little bit of time yesterday
reviewing the course of my discovery orders and the responses,
and it seems to me that your client has been uniformly very,
very, very late, and in violation of this Court's orders, as it
pertains to the time that documents should be produced, so I am
extremely disinclined to give you the benefit of your own
self-engineered delay.
That being said, I am not averse, if we get there and
you really need more time, and you can convince me that you
have a justified reason for it, to give you a day, but I'm not
going to give it to you now. We're going to get up to next
week. We're going to look at what the witnesses are. I'm
going to let you know what the witnesses are. I've already
said that. The topics are going to be -- they'll be orderly.
And if you can convince me that you need an extra day, you'll
get it.
But I'm not going to give you that authorization now,
and it certainly doesn't seem to me that the very delayed and
disobedience of the Court's order in scheduling a deadline
merits me granting you a very large extension at this point.
This matter has delayed and delayed and delayed. I
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believe that your client, as much as anybody else, is
interested in getting an expeditious -- but fair -- resolution
of this.
So if we get there, you need more time, I'll entertain
that. But you're going to have to explain to me, if I'm
inclined to ask, why it is that documents that I ordered to be
produced last February during February weren't produced, and
your clients weren't -- client representatives weren't even
asked about them until months later. And that's what the
testimony in this action has been.
So while I understand what you're saying, while I
intend to give you a fair opportunity to respond if that proves
necessary, because there still are things developing, I'm not
going to grant that at this point.
MR. MASTERSON: Thank you, Judge, and that's all I'm
looking for. I'm not looking for some huge postponement; I'm
just looking for a fair opportunity to represent my clients at
the contempt proceeding. And as you just recognized, we'd sure
like to get this done, too, because we'd like to just move to a
compliance phase and be done with this.
THE COURT: All right. And I'll entertain that at
that time. But I do intend to hold everybody's feet to the
fire and get this thing underway.
Mr. Walker, you wanted to say something?
MR. WALKER: Yes. Thank you, Your Honor.
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I'd just point out Your Honor has raised two, I think,
very salient points in prior status conferences. One is we
should try to make this hearing as efficient as possible, and a
very good way to do that is to reach as many stipulations as we
can. None of the parties are in a very good position to make
final decisions about stipulations until this wave of discovery
is completed.
The second point is, and this actually was
Mr. Masterson's point a couple status conferences ago, that
there may well be benefit from the parties all participating in
a settlement conference with a magistrate judge. And to the
extent that we can reach agreement on settling issues,
obviously that contributes to efficiency of the process.
And we are where we are for whatever reasons, but from
the perspective of the citizens and the taxpayers of Maricopa
County, handling things in a way that makes this next phase as
efficient and as not time-consuming as possible is a very high
priority. And it seems to me from the standpoint of the
Court's resources that that's a high priority.
So the concern that I wanted to express is while I
understand the plaintiffs' concerns about when they receive
documents and when they're being able to conduct depositions,
and I certainly understand and appreciate the Court's concerns
about getting this next phase over, and I'm in full agreement
with that, it does seem to me that if we needed to take a few
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extra days to try to streamline this process as much as
possible, that's really in everybody's interest.
THE COURT: All right. I appreciate that. I don't
think it requires any comment other than what I made to
Mr. Masterson. If you can convince me that there's a reason to
do it and the parties are agreed, then I'll consider it later
with specific requests for specific reasons.
I will say, Mr. Walker, though, in my time as a judge
particularly more so than as a lawyer, I've learned that the
way to produce resolution is to require resolution by holding a
strict schedule, and so I intend to hold that strict schedule.
If you can convince me that there's compelling reasons
to put it off for a day or two, then I'll put it off for a day
or two in light of specific reasons of what you're going to
specifically do. But if you don't have those reasons, and if
the parties aren't agreed, then let's just resolve this matter.
That's my view, just so you're aware of it.
Mr. Birnbaum, Mr. Ouimette last week indicated that
you wanted to re-raise an issue that we have already had some
discussion on. I really doubt that I'm going to change my mind
at all, and I'm particularly not going to change it if you
don't have something new to tell me, but I will give you the
opportunity to say something if you wish.
MR. BIRNBAUM: Your Honor, I --
THE COURT: Could you approach a microphone, please.
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MR. BIRNBAUM: Sure. Your Honor, I have nothing new
to tell you. I do not need to re-raise the issue now. Deputy
Chief MacIntyre's deposition has been scheduled for, I think,
the 21st, but prior to the 22nd.
But since you gave me the invitation, I will only say
this, Your Honor: We're well into this case. I'm here
responding to the possibility of a criminal referral. I don't
want to mischaracterize anything you've said, but I don't think
there's anyone in this room, the Court included, who thinks
that there has been the slightest indication of any
contemptuous conduct, let alone criminal intentional conduct,
by Deputy Chief MacIntyre.
As you know, he, as I understand it, is not being
indemnified. This case is continuing against him almost in a
"baby with the bathwater" sense. We understand the seriousness
of the allegations in this case; we understand the position
that the sheriff and the chief deputy have taken. But those
don't relate to Deputy Chief MacIntyre. There have been a
whole series of times in this case where you gave us an
opportunity to -- I'm sorry, Your Honor.
THE COURT: I'm just reviewing something you just
said. But I'm --
MR. BIRNBAUM: Sure.
THE COURT: -- still listening. Go ahead.
MR. BIRNBAUM: Sure. There have been a series of
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times in this case where we did raise the issue, sort of the
kind of Celotex "show us the beef" issue. If there's really a
claim here, tell us what it is. We never saw it; it was never
provided to the Court; it hasn't been provided to us today.
And here's where I do differ with something you have
said in the past, Your Honor. When the first series of days of
this contempt proceeding occurred, we were provided with a list
of the remaining witnesses that the plaintiffs intended to call
in the case. Deputy Chief MacIntyre was not a witness. You
have raised the question of, Well, I want to hear what Deputy
Chief MacIntyre says, just like you've heard from
Lieutenant Sousa.
Your Honor, we don't have any intention of calling
Deputy Chief MacIntyre, at least I don't, certainly not on the
contempt issues, because the burden of proof obviously rests
with the plaintiff. There has been no presentation as to the
deputy chief. He wasn't even listed as someone they want to
call. The latest deposition, as far as we know, is a complete
and absolute fishing expedition. Nobody has shown us a
document or a new theory that they want to re-depose my client
about.
And thank you for the indulgence, Your Honor. We'll
make the motion again at the appropriate time, but we do want
you to understand why we're so concerned about it.
THE COURT: Well, as I've said, and I have had this --
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I've indicated with Lieutenant Sousa, I don't have any interest
in keeping anyone in this suit longer than they need to be kept
in, and I've asked plaintiffs to refine that case.
I do believe that we're going to wait and abide your
motion at the appropriate time. If there's a reason to dismiss
your client, I believe he's up on -- I named him on two
separate charges, did I not?
MR. BIRNBAUM: Well, it's not clear, Your Honor, based
on your prior comments --
THE COURT: Well, I'm talking about the order to show
cause.
MR. BIRNBAUM: Well, everybody agrees he's not
involved in Armendariz. Then there was this question of his
involvement with the preliminary injunction order.
THE COURT: That's correct.
MR. BIRNBAUM: Not to misquote you, I hope, but even
the Court acknowledged that other than him being shown as a
carbon copy on a letter, which you've said was not even within
the scope of privilege --
THE COURT: It seems to me that the representations,
and I think you're not misstating, the representations by
defendants have been consistently that Chief MacIntyre had no
responsibility with respect to Melendres at all or the
preliminary injunction; that he was carbon-copied only in a
clerk function to see that other people -- other addressees of
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the document saw it.
MR. BIRNBAUM: Right, which brings us to your third
point, Your Honor, which is when we raised this issue before, I
believe what you said, and I'm very sorry if I mis -- I'm not
try to quote you at all, but you said: Well, then there's this
third issue of Deputy Chief MacIntyre's role in discovery.
THE COURT: Yes.
MR. BIRNBAUM: And Deputy Chief MacIntyre had no role
in discovery.
THE COURT: Well, it seems to me like his affidavit
gives rise to a different inference, at least.
MR. BIRNBAUM: Well, Your Honor, you've said this
before. Years earlier, Deputy Chief MacIntyre did receive --
and you know the whole history --
THE COURT: Right. And so we'll hear what he has to
say.
MR. BIRNBAUM: But we have -- well, Your Honor, hear
what he has to say where? It's not his burden to come up here
and say, I'm going to tell you everything I did during my time
at the Sheriff's Office, although we've done even that. We've
answered that by submitting his declaration.
Isn't it time, perhaps -- it's a rhetorical question,
of course -- but isn't it time, perhaps, for what in a
different setting would be the response to a Celotex motion,
kind of a bill of particulars?
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THE COURT: Not yet.
MR. BIRNBAUM: Can't the plaintiffs be asked: Tell us
what your claim is about contemptuous conduct by Deputy Chief
MacIntyre?
THE COURT: I think they're entitled to take his
deposition and they've noticed it.
MR. BIRNBAUM: Your Honor, they took his deposition.
You're saying they're entitled to take it again, and we're
saying perhaps if you tell us that there's a new theory, or a
new piece of evidence, or a new document that they're going to
ask him about that they didn't ask him about before, but they
took his deposition for four-plus hours previously in this case
before the first four days of hearing and then elected not to
call him.
THE COURT: All right. Thank you, Mr. Birnbaum.
MR. BIRNBAUM: Thank you very much, Your Honor.
THE COURT: Ms. Wang.
MS. WANG: Very briefly, Your Honor. There are new
documents that have been produced since April 24th that do
relate to Chief MacIntyre, and we have noticed his deposition I
believe for the 11th, based on the availability that
Mr. Ouimette provided, and we'll see what we find out at the
deposition.
THE COURT: All right. And you'll let me know if you
are ready to release Chief Deputy MacIntyre?
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MS. WANG: We will do so --
THE COURT: I'm sorry --
MS. WANG: -- as soon as we know --
THE COURT: -- "Deputy Chief" MacIntyre.
Now, that's -- that's enough, Mr. Birnbaum.
MR. BIRNBAUM: Your Honor, I just want to avoid an
error. I want Ms. Wang just to check --
THE COURT: Please approach the microphone.
MR. BIRNBAUM: I'm just asking the plaintiffs to
double-check. I think the last agreement that was in fact
confirmed is that he would be deposed on the 20- -- I think the
morning of the 21st.
And Ms. Wang, I just checked with Mr. Masterson. I
think that's what he has on his calendar as well. So we can
double-check that, Your Honor, but I didn't want to leave it
misstated.
THE COURT: All right. Thank you.
Anybody else have anything else to raise?
MS. WANG: Your Honor, as to depositions, we had
initially noticed Mr. Zullo and Mr. Mackiewicz for later in
October after the initial two weeks of the hearing. I did
write to defendants to request that we move them to prior to
September 22nd. I have not heard back. I conferred briefly
with Mr. Masterson as we were walking into court this morning,
and we'll work on that.
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There is a third witness, Rollie Seebert, who relates
to the preliminary injunction issues in the case. We have
repeatedly asked first that we be able to interview him, as he
is no longer with the MCSO. Mr. Masterson indicated that they
would prefer to do this by deposition. We asked for dates, and
we do not have any response on that.
THE COURT: Mr. Masterson.
MR. MASTERSON: I'll start with Mr. Seebert.
Mr. Seebert lives in Long Beach now. He's not
employed by us any more. I'm trying to track down at this
point where he is so we can talk to him and try to schedule a
deposition.
But I will tell the Court, and I'm probably the worst
person in this room at word searches, but I've tried some and I
can't find that Mr. Seebert has anything to do with any issue
at all in this case. So, before we all fly out to Long Beach,
I'd just like to know why we're taking this guy's deposition.
THE COURT: Ms. Wang.
MS. WANG: Your Honor, Mr. Seebert was the director of
the training division at the time that there were efforts by
Sergeant Palmer and Lieutenant Sousa to create training
scenarios after the Court's preliminary injunction order. He
was copied on some of those documents relating to that proposed
training, and therefore, we believe he may shed light on what
happened to that training and why it did not take place.
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MR. MASTERSON: Well, Judge, I mean, I think we'll
probably learn a great deal about that through Lieutenant Sousa
and Sergeant Palmer, so I don't know that we need to schedule a
deposition in Long Beach for some guy who maybe was the
director --
THE COURT: Well, it seems to me I do remember
Mr. Seebert from Lieutenant Sousa's testimony, and some of the
documents that showed that he was copied. I think it is
relevant. If you don't want to do the deposition then you can
authorize the interview.
MR. MASTERSON: Okay. The other issue, and
Mr. Birnbaum brought it to mind, is my intention, and I just
want to seek guidance from the Court so we can avoid bothering
you during depositions, is that if someone has been deposed
before, that that began the seven-hour time clock.
And if, for example -- and I haven't read how long a
previous deposition was, but if it was four hours, then I
would -- I would limit it to three if we were retaking that
same person's deposition, unless I can be convinced that so
much new material has come forward since the first deposition
that we need to take more than three hours going forward.
THE COURT: Well, I appreciate you raising this issue.
Let me just say that I did agree with you before: I
don't intend to allow plaintiffs to retrack territory they've
already taken. They can only -- when they've redeposed
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somebody, they can only deal with new material discovered.
If that new material discovered is extensive, I'm
going to allow them to exceed the seven-hour time limit; if
it's not, I'm not. So you can make your judgment. You can try
to give me a call.
I will tell you that I'm pretty scheduled for the next
two weeks. Some of that time, of course, one day is, at least
for the moment, the deposition of Mr. Casey, but otherwise I
may be difficult to get ahold of. I will try to give you my --
how you can get ahold of me wherever I am, but I will be in
proceedings, one in Tucson, one at -- one at the jail, or one
of the prison facilities for most of two days next week.
So I would appreciate, although I recognize your
ability to enforce some finality here, I would appreciate a
little bit of lenience, if there are sufficient documents that
are new or material that is new, that you give the plaintiffs a
little bit of leeway.
But Ms. Wang, as I've said before, I'm not going to
allow you to cover matters that have already been covered
unless there is some reason that these new documents shed new
light on them, so we should all try to be as expeditious as
possible.
Long answer, trying to make it summarized, I'll give
you my phone number wherever I am, and if you need to get in
touch with me, try to get in touch with me. If you feel like
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the depositions have gone on too long, I'll make a ruling. But
if you do that, Ms. Wang, would you please have ready the new
material that you believe justifies an extension in the hours
and why that is necessary? And I assume you will review that
with Mr. Masterson before you call me so Mr. Masterson can
assess whether or not it really merits a call.
MS. WANG: Yes, Your Honor.
MR. MASTERSON: Thank you, Judge. And I will tell you
that I have never cut someone off at four hours in state court
or seven hours in federal court; I give leeway every single
time. But here I'm just concerned because some of these folks
have been deposed three times.
THE COURT: I get the point.
MR. MASTERSON: Thank you, Judge.
THE COURT: Anything else?
All right. I will see you on the 18th, unless,
Ms. Wang, we need to reconvene today, in which case my judicial
assistant is out today. Can I ask you to call and get
Kathleen -- this is Kathleen -- get Kathleen's number, and she
can set up the hearing.
MS. WANG: Yes, Your Honor.
THE COURT: Thank you.
MS. WANG: Thank you.
(Proceedings concluded at 9:54 a.m.)
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C E R T I F I C A T E
I, GARY MOLL, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
I FURTHER CERTIFY that the foregoing pages constitute
a full, true, and accurate transcript of all of that portion of
the proceedings contained herein, had in the above-entitled
cause on the date specified therein, and that said transcript
was prepared under my direction and control.
DATED at Phoenix, Arizona, this 11th day of
September, 2015.
s/Gary Moll