Melendres # 1588 | Arpaio Response to Nov 18 Order

8/20/2019 Melendres # 1588 | Arpaio Response to Nov 18 Order

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John T. Masterson, Bar #007447Joseph J. Popolizio, Bar #017434Justin M. Ackerman, Bar #030726Jacob L. Speckhard, Bar #032442JONES, SKELTON & HOCHULI, P.L.C.2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Telephone: (602) 263-1700Fax: (602) 200-7846

[email protected] [email protected] [email protected] [email protected]

Attorneys for Defendant Joseph M. Arpaio inhis official capacity as Sheriff of MaricopaCounty, AZ

UNITED STATES DISTRICT COURTDISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,

v.

Joseph M. Arpaio, et al.,

Defendant.

NO. CV 07-02513-PHX-GMS

DEFENDANT ARPAIO’SRESPONSE TO COURT’SNOVEMBER 18, 2015 ORDER

(Assigned to Hon. G. Murray Snow)

Defendant Arpaio responds to the Court’s November 18, 2015 Order as

follows:

I. DEFENDANT ARPAIO’S GENERAL OBJECTIONS TO THE COURT’SNOVEMBER 18, 2015 ORDER.

For the foregoing reasons, Defendant Arpaio1

generally objects to the

Court’s November 18, 2015 Order requesting Defendant Arpaio identify and produce

additional information after the close of evidence in this case. In addition, while

Defendant Arpaio outlines his various general objections in Section I below, when

answering the Court’s individual questions in Section II, he will also raise any applicable

1 Reference to Defendant Arpaio incorporates reference to putative civilcontemnors Chief Deputy Gerard Sheridan, John MacIntyre, and Lt. Joseph Sousa.

Case 2:07-cv-02513-GMS Document 1588 Filed 12/04/15 Page 1 of 34


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specific objections to the Court’s inquiries.

A. Neither the Court Nor Any Other Party Should be Permitted to Reopenthe Evidentiary Record After the Close of Evidence.

“[O]nce the record is closed, a district court, absent waiver or consent,

ordinarily may not receive additional factual information of a kind not susceptible to

judicial notice unless it fully reopens the record and animates the panoply of evidentiary

rules and procedural safeguards customarily available to litigants.” Lussier v. Runyon, 50

F.3d 1103, 1105-06 (1st Cir. 1995); see also id. at 1113 (“It is a fundamental principle of

our jurisprudence that a factfinder may not consider extra-record evidence concerning

disputed adjudicative facts.”); Mercexchange, L.L.C. v. eBay, Inc., 467 F. Supp. 2d 608

617 (E.D. Va. 2006).

In Lussier , the district court was “[d]issatisfied with the trial evidence”

regarding the plaintiff's future disability benefits, so the court, in an effort to accurately

calculate plaintiff's damages, ordered the parties to file a status report concerning certain

disability payments that plaintiff would receive in the future. Id . at 1113. Plaintiff

“though objecting vigorously to the directive,” submitted some evidence relating to his

interim disability payments, whereas the defendant offered no information. Id

Subsequently, the court, apparently exasperated with defendant's failure to submit

requested information, used the plaintiff's forced submission to calculate the present value

of plaintiff's future disability benefits, reduced plaintiff's damages based on such

calculation, and “paid lip service” to the fact that it had “reopened the record.” Id. at

1113, 1115 n. 16. On appeal, the First Circuit concluded that although the district court

claimed to have reopened the record, its actions failed to approach the proper method of

reopening the record because the court, “over the plaintiff's objection, engaged in a

unilateral pursuit of additional evidence without affording the parties the standard

prophylaxis that generally obtains at trial ... [including] the right to object to evidence, the

right to question its source, relevance, and reliability, the right to cross-examine its

proponent, and the right to impeach or contradict it.” Id.



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The same can be said of the Court’s questions contained in this Order. It

cannot be understated that this action was vigorously litigated by Plaintiffs’ counsel. Not

only was an international law firm representing Plaintiffs (Covington & Burling), but the

American Civil Liberties Union (“ACLU”) and the United States Department of Justice

were also involved in this action. Accordingly, after 20 days of trial, over 4500 pages of

trial transcript, and 331 exhibits (two of which were by the Court), the record should be

closed and not subject to further additions based on the inquiry from this Court. As the

court noted in Lussier , if the Court seeks to solicit and admit further evidence, then

Defendants should be afforded all the rights that exist at trial, including the right to object

to evidence, question its source, relevance, and reliability, the right to cross-examine its

proponent, and the right to impeach or contradict it. Moreover, it is axiomatic that these

protections should extend to, and become even more heightened, during civil contempt

proceedings that carry potential criminal consequences.

Accordingly, on these grounds, Defendant Arpaio objects to the Court’s

consideration of any evidence and information provided by any party in response to this

Courts November 18, 2015 Order as a basis for this Courts’ determination of contempt.

B. Requiring Defendant Arpaio to Respond to the Majority of the Court’sQuestions in its Order May Violate Defendant Arpaio’s Due ProcessRights.

A Court must provide an alleged contemnor with notice and an opportunity

to be heard. Bagwell , 512 U.S. at 827; id. at 833 (“[F]urther procedural protections are

afforded for contempts occurring out of court, where the considerations justifying

expedited procedures do not pertain.”). The concept of notice includes prior disclosure

and provision of documents to be used at trial, and prior identification of areas of

examination. See generally, Stuart v. United States, 813 F.2d 243, 251 (9th Cir.1987)

rev'd on other grounds, 489 U.S. 353 (1989); DP Aviation v. Smiths Indus. Aerospace &

Def. Sys. Ltd ., 268 F.3d 829, 846-47 (9th Cir. 2001). Such advance notice is consistent

with an alleged contemnor’s right to present a defense. See United States v. Powers, 629

F.2d 619, 625 (9th Cir. 1980). Further, the law requires progressively greater procedura



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protections for indirect contempts of complex injunctions that necessitate more elaborate

and in-depth fact finding, as in this case. Bagwell , 512 U.S. 821 at 833-34. As such, for a

discrete category of indirect contempts involving “out-of-court disobedience to complex

injunctions,” “civil procedural protections may be insufficient”, and “criminal procedural

protections[,] such as the rights to counsel and proof beyond a reasonable doubt[,] are

both necessary and appropriate to protect the due process rights of the parties and prevent

the arbitrary exercise of judicial power.” Id. at 834.

Here, requesting additional identification of exhibits and answers to this

Court’s questions fails to adequately provide Defendant Arpaio with sufficient notice and

opportunity to be heard regarding his objections to the admissibility of such information.

Specifically, the Court’s Order requests a blanket waiver of objection to any inquiry and

reliance by the Court on various identified and unidentified evidence and information that

may or may not have been a part of the presentation of evidence during the contemp

proceedings. [See e.g., Questions 2, 4, 5 (a), (b), 6, 7(b), 8, 10(b), (d), 12, 13 (a), (b).]

Moreover, the Court’s Order does not appear to provide sufficient and adequate

opportunity for Defendant Arpaio to respond to any submission of information and

evidence that Plaintiffs intend to file in response to the Court’s Order, which would

ordinarily be available if such questions and evidence were being presented during trial.

Accordingly, on these grounds Defendant Arpaio objects to any additional statements

information, or evidence identified or submitted in response to this Court’s Order.

C. Neither Defendant Arpaio Nor Any Other Putative Civil ContemnorCarries the Burden of Persuasion in a Civil Contempt ProceedingInvolving a Complex Injunctive Order.

The burden of persuasion for civil or criminal contempt remains on the

moving party to persuade the court that the defendant has failed to comply with a valid

court order. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). Moreover

in a civil contempt proceeding, the contempt must generally be proved by clear and

convincing evidence. Matter of Battaglia, 653 F.2d 419, 422 (9th Cir. 1981). However

“criminal procedural protections[,] such as the rights to counsel and proof beyond a



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reasonable doubt[,] are both necessary and appropriate to protect the due process rights of

the parties and prevent the arbitrary exercise of judicial power” when indirect contempt of

court, such as the alleged contempt in this action, involves “out-of-court disobedience to

complex injunctions.” Int’l Union, United Mine Workers of America v. Bagwell , 512 U.S

821, 834 (1994).

This Court’s Order appears to impermissibly request that Defendant Arpaio

identify or produce information, testimony and exhibits that appears to support a finding

that Defendant Arpaio violated the Courts’ Orders beyond a reasonable doubt. This

impermissibly shifts the burden of persuasion for a civil contempt proceeding involving a

complex injunction. As such, Defendant Arpaio generally objects to the Court’s questions

and requests that relate to the production or description of evidence and information that

was not developed or introduced during trial.

II. DEFENDANT ARPAIO’S OBJECTIONS AND LIMITED RESPONSES TOTHE QUESTIONS AND REQUESTS CONTAINED IN THE COURT’SNOVEMBER 18, 2015 ORDER.

Without waiving the general objections stated in Section I above,

Defendant Arpaio responds to the Court’s Questions as follows:

1. To the extent that the parties wish to argue more than they already have

done regarding Chief Sands pending Motion for Summary Judgment, (Doc. 1214) they

should make such arguments within the time allotted to the sides for oral argument on

November 20, 2015.

Defendant Arpaio responds to Question 1 only to note that he filed a

Joinder in Chief Sands pending Motion for Summary Judgment. ( See Doc. 1569).

2. As the Court has already indicated, it feels free to consider the matters set forth in the docket and the representations made by the parties and their representatives

to the Court during the status conferences and in the papers filed in this matter. It also

feels free to rely on its previous findings of fact and conclusions of law. If any party

objects to the Court doing so please state such objections and the basis therefore.

Pursuant to the legal authorities stated in Section I above, Defendant



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Arpaio Objects to the Court’s requests in Question 2. Defendant Arpaio has not

been sufficiently apprised, under the statements contained in Question 2, what

“matters” in the docket and “representations made by the parties and their

representatives to the Court” that the Court intends to rely on and objects on that

basis. In addition, to the extent the Court intends to use any of these “matters” and

“representations” as a basis for finding civil contempt, Due Process requires that

Defendant Arpaio be entitled to advance notice and opportunity to be heard on the

Court’s basis to use these matters. Moreover, reliance on prior representations

made by the parties and their representatives would be patently unfair because any

matter previously argued, represented, or admitted was not subject to the specia

interests and considerations involved in a civil contempt hearing that carries

potential criminal consequences.

3. In so doing, it occurs to the Court that some matters may still be under seal

for which there is no longer a continuing justification. It sets forth the proceedings or

parts of which that have been sealed below and invites the parties to indicate the ones, as

to which it believes, there may be a continuing basis to keep the matter under seal:

(a) 08-07-14 Doc. 735 Telephonic Conference SEALED

Defendant Arpaio has no objection to unsealing this record.

(b) 10-28-14 Doc. 780 Status Conference V. 2 SEALED


(c) 04-22-15 Doc. 1021 Evidentiary Hearing Day 2 PORTION SEALED


(d) 04-24-15 Doc. 1041 Evidentiary Hearing Day 4 PORTION SEALED




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(e) 10-01-15 Doc. 1456 Evidentiary Hearing Day 9 PORTION SEALED

Defendant Arpaio objects to unsealing the record because it involves a

matter that is still under investigation. A motion to seal is generally governed by the

higher “compelling reasons” standard. Pintos v. Pac. Creditors Ass'n, 605 F.3d 665

678 (9th Cir. 2010). The “party seeking to seal judicial records must show that

‘compelling reasons supported by specific factual findings ... outweigh the general

history of access and the public policies favoring disclosure.’” Id. (quoting Kamakana

v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)).

The compelling interests that justified taking Lieutenant Seagraves

testimony under seal on October 1, 2015 are still present now because the

investigation discussed during the October 1, 2015 hearing is still ongoing and has

not yet reached a final resolution. Importantly, this Court, by sealing entire

proceedings or portions of proceedings that relate to ongoing investigations against

MCSO officers, has acknowledged that potential interference with ongoing

investigations satisfies the compelling reasons standard. See October 28, 2014 Status

Conference at 95:1-95:9 (“we’re holding this under seal only because they’re ongoinginvestigations, but as soon as those investigations are over we’re lifting the seal.”)

Specifically, regarding Lieutenant Seagraves’ October 1, 2015 testimony, this Court

held that “the nature of the criminal allegations, the initiation of the investigation,

the investigation by Tennyson and Zebro, the interview of McKessy, the adequacy of

the investigation . . . ” were all topics that met the compelling reasons standard and

needed to be held under seal. See October 1, 2015 Evidentiary Hearing at 2113:25-

2114:8, 2175:17-2175 (“[w]e are going to go under seal because I have made a finding

that certain questions are relevant, but also that the compelling interest standard

required by the Ninth Circuit justifies us taking these matters under seal.”). There

has been no material change in circumstance since the October 1, 2015 hearing, and



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as such, it should remain sealed.2

(f) 10-02-15 Doc. 1563 Evidentiary Hearing Day 10 PORTION SEALED

Defendant Arpaio cannot answer whether the Court should unseal theportion of these records because the Court has not released the sealed portion of the

hearing to the parties. As such, Defendant Arpaio asserts that for the reasons stated

in Question 3(e), the record should remain sealed.

(g) 10-08-15 Doc. 1472 Evidentiary Hearing Day 11 PORTION SEALED

Defendant Arpaio cannot answer whether the Court should unseal the

portion of these records because the Court has not released the sealed portion of the

hearing to the parties. As such, Defendant Arpaio asserts that for the reasons stated

in Question 3(e), the record should remain sealed.

4. In light of the fact that some reports have been outstanding for a long time

and the Defendants have not yet, or have only recently submitted final versions, it occurs

to the Court that there may be IA investigations that have been completed and submitted

to the Monitor, or which may yet be completed and submitted to which the court may wish

to refer. It proposes the following procedure: If it desires to review any IA report which

has not been introduced into evidence, it will inform the parties which IA report number

or numbers it is seeking from the Monitor. It will refer to the IA reports only to the extent

that it wishes to ascertain the contents of the MCSO investigations and their findings and

conclusions—which would apparently be matters of public record for closed

investigations. Other than ascertaining the conclusions and the content of the

2Finally, Arizona law provides that “[a]n employer shall not include in … the

personnel file of a law enforcement officer that is available for public inspection andcopying any information about an investigation until the investigation is complete or

the employer has discontinued the investigation.” A.R.S. § 38-1109. Notably, thereare no exceptions to A.R.S. § 38-1109. See United States v. Buckland , 289 F.3d 558564-65 (9th Cir. 2002) (the plain language of the statute is unambiguous and shouldtherefore be regarded as conclusive). As such, the Arizona legislature has made itunequivocally clear that information pertaining to ongoing investigations into lawenforcement officers must remain confidential and outside of public records untilthey are final and complete. Because the MCSO investigation discussed during theOctober 1, 2015 hearing is not complete, this Court should rule consistent with theintent of the Arizona legislature and keep Lieutenant Seagraves’ October 1, 2015testimony regarding the underlying criminal investigation under seal.



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investigation, it will not accept or reject any specific findings of the reports without

consulting with the parties. Further it will have no substantive communications with the

Monitor regarding the Monitor’s opinion concerning the adequacy of any report prepared

by MCSO without providing advanced notice to the parties and an opportunity to be

heard. If any party objects to this procedure, or desires to propose an alternate one--it

needs to raise such objections at oral argument.Pursuant to the legal authorities stated in Section I above, Defendant

Arpaio objects to the Court admitting new evidence into the record as an

impermissible attempt to reopen the evidentiary record after the close of evidence.

Moreover, any attempt by the Court to review new IA reports prior to giving

Defendant Arpaio notice and opportunity to be heard on the admissibility of that

specific IA report is a violation of Defendant Arpaio’s Due Process Rights

Moreover, admitting new evidence after the close of evidence in these proceedings

deprives Defendant Arpaio of his opportunity to contest the validity of the

statements made in the IA report during the traditional confrontational setting of a

trial.

In the event the Court does not sustain Defendant Arpaio’s objection

Defendant Arpaio requests two important distinctions/clarifications be made to the

Court’s proposed procedure to review IA reports not in the record. Prior to the

Court’s review of any IA report which has not been introduced into evidence, the

parties should have notice and opportunity to be heard on whether the IA report at

issue is relevant to the Court’s determination of civil contempt in these proceedings.

After the Court has determined the IA report’s relevance to these proceedings, the

parties should be provided notice and opportunity to be heard to argue the adequacy

of the IA report as it pertains to this Court’s contempt determination. This must

also include the opportunity to depose the Monitor prior to any discussion between

the Monitor and the Court and the right to rebuttal witnesses (including Defendant

Arpaio’s own experts) regarding the accuracy of the Monitor’s opinion on the

accuracy of the IA report.



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5. There has been testimony that during the time that the preliminary

injunction was in effect, HSU roadside interdiction patrols detained and turned over to

ICE 171 persons for whom it had no state charges but whom it suspected of being in the

country without authorization. Although the Court recalls testimony that a similar tally

either existed or could be prepared for HSU’s work place employment raids and/or other

activities, it cannot recall that such a tally was ever subsequently admitted into evidence.The Court also remembers Lieutenant Sousa’s testimony pertaining to overhearing radio

calls from MCSO operations that were not part of HSU, principally District II, pertaining

to the transfer of non-chargeable unauthorized persons to ICE custody.

(a) Please highlight for the Court any other testimony or exhibits tha

demonstrate the numbers of persons that may have been impacted by the MCSO’s

violation of this Court’s preliminary injunction and the different ways in which they may

have been impacted.


Arpaio objects to the Court’s request that Defendant Arpaio highlight testimony or

exhibits that demonstrate the numbers of persons that may have been impacted by

the MCSO’s violations of this Court’s preliminary injunction and the different ways

in which they may have been impacted. First, it is Plaintiffs’ burden to establish

evidence exists beyond a reasonable doubt that Defendant Arpaio violated this

Court’s Orders. As such, requiring Defendant Arpaio to produce such information

impermissibly shifts the burden of persuasion during these contempt proceedings

Second, to the extent that Plaintiffs attempt to provide additional information

responsive to this question, Defendant Arpaio also objects to the Court’s

consideration of new information and evidence after the close of the record.

(b) To the extent that the identity of such victims, or the extent of the

harm done to them, may or may not be ascertainable please indicate why.

For the same reasons stated in Defendant Arpaio’s response to Question

5(a) above, Defendant Arpaio objects to being required to answer Question 5(b).

Video Recordings

6. The Court is aware from the evidence that the MCSO went through a

process by which it reviewed videotapes that it recovered from the Deputy Armendariz



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investigation or from subsequent developments and inquiries. Chief Deputy Sheridan

testified that this constituted approximately 8900 videos of traffic stops. Hr. Tr. at 934.

The Court assumes that the MCSO reviewed all of the recordings it recovered from all

sources including the Armendariz videotapes, the video recordings subsequently found in

HSU offices, the video recordings it recovered from MCSO deputies and posse members

pursuant to Chief Trombi’s May collection efforts and other sources. If this is not correct, please inform the Court.


Arpaio objects to the Court’s request that Defendant Arpaio highlight testimony or

exhibits that demonstrate whether video recordings were properly disclosed during

the underlying trial. First, it is Plaintiffs’ burden to establish evidence exists beyond

a reasonable doubt that Defendant Arpaio violated this Court’s Orders. As such

requiring Defendant Arpaio to produce such information impermissibly shifts the

burden of persuasion during these contempt proceedings. In addition, to the extent

that Plaintiffs attempt to provide additional information responsive to this question,

Defendant Arpaio also objects to the Court’s consideration of new information and

evidence after the close of the record. However, pursuant to Defendant Arpaio’s

ongoing obligation to supplement discovery, and without waiving the

aforementioned objections, he states as follows:

Counsel for Defendant Arpaio is informed and believes that MCSO has

reviewed all 8900 videos of traffic stops to the extent the videos could be reviewed.

Counsel is informed that approximately 100 of the 8900 videos were corrupted and

could not be viewed by MCSO staff.

(a) These videotapes which MCSO has apparently reviewed wouldappear to be more extensive than those that were accounted for by Emily Doan that were

provided by the MCSO to Plaintiffs. See, e.g. Ex. 214 (enumerating 456 DVD’s). Please

explain the discrepancy. Were any of the videotapes accounted for by Emily Doan

provided to the parties prior to the underlying trial in this matter?


6 above, Defendant Arpaio objects to being required to answer Question 6(a)



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However, pursuant to Defendant Arpaio’s ongoing obligation to supplement

discovery, and without waiving the aforementioned objections, he states as follows:

Counsel for Defendant Arpaio is informed and believes that Plaintiffs

were provided with traffic stop videos on May 21, 2015 (with IA14-0543 Bate

stamped as MELC211983-MELC211984), June 5, 2015 (131 discs Bate stamped

MELCVID001_00006503-MELCVID001_00006633), and June 8, 2015 (an external

hard drive Bate stamped as MELCVID1_001_00000894-

MELCVID1_001_00006502). On February 2, 2015, Plaintiffs were provided

spreadsheets listing all the retrieved videos (and other information) that PSB

employee Jennifer Johnson created. The traffic stop video spreadsheets list all the

videos that were reviewed by MCSO.

(b) Were any video tape recordings subsequently recovered by MCSO

that were not reviewed pursuant to the MCSO review procedure outlined at trial?


6 above, Defendant Arpaio objects to being required to answer Question 6(b).

(c) There was testimony by Captain Bailey, among others, that the protocol followed by MCSO reviewers in reviewing the videotapes was turned over to the

Monitor and/or the Plaintiffs. Please identify this protocol if it was admitted into evidence

in this action.


6 above, Defendant Arpaio objects to being required to answer Question 6(c)



Counsel for Defendant Arpaio is informed and believes that on May 30

2014, a protocol in the form of a Memorandum was disclosed to Plaintiffs

(MELC004811). However, Counsel for Defendant Arpaio is informed and believes

that this was Memorandum was not admitted into evidence.



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(d) Were Plaintiffs given access to any video recordings that came into

the possession of MCSO that they may have wished to review?


6 above, Defendant Arpaio objects to being required to answer Question 6(d)



Counsel for Defendant Arpaio is informed and believes that, as

provided in 6(a) above, Plaintiffs received these videos to review if they so wished

All videos/audio that MCSO retrieved were provided.

(e) The specific self-surrender of video files appears to be the subject of

an Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation

closed? Has any final report been issued in this or other investigations that pertains to

MCSO video files? Has such final report been provided to the parties and to the Monitor?

Has such an investigation, or any part of it, been admitted into evidence?


6 above, Defendant Arpaio objects to being required to answer Question 6(e)



Counsel for Defendant Arpaio is informed and believes that, pursuant

to the production indices provided by Attorney Iafrate, portions of IA2014-0253

were disclosed on 10/22/14 and 6/22/15, as well as weekly status reports being

provided on the following dates: 9/26/14, 10/3/14, 10/9/14, 10/20/14, 10/24/14, 11/3/14

11/7/14, 11/13/14, 11/21/14, 12/5/14, 12/12/14, 12/19/14, 12/26/14, 12/31/14, 1/9/15,

1/16/15, 1/23/15, 1/30/15, 2/17/15, 2/23/15, 2/27/15, 3/6/15, 3/16/15, 3/23/15, 3/31/15

4/10/15, 4/20/15, 5/4/15, 5/15/15, 5/20/15, 8/19/15, and a bi-weekly status report on

10/5/15. However, a final report has not been issued because this investigation is still

pending.

(f) As the testimony indicated, the review of such files also has resulted

in various other internal affairs investigations, see, e.g., Ex. 2943 Are all such

investigations closed? Are all such investigations whether closed or pending listed on Ex.



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2943? Please identify any matters that have arisen from videotape review and remain

pending. Do all such investigations that are closed contain final reports? Please identify

the matters arising from videotape review that are closed in which a final report either

was or has not yet issued. Please identify the final reports for such matters that have been

admitted into evidence in this matter.


6 above, Defendant Arpaio objects to being required to answer Question 6(f)



Counsel for Defendant Arpaio is informed and believes that the status

as stated in Exhibit 2943 is accurate except that IA 2014-0221 is now sustained, and

IA 2015-0780 was added to the list of open investigations as provided in an updated

listing (MELC1404203a-MELC1404207a).

(g) In his April hearing testimony Sheriff Arpaio indicated that he

thought there was an MCSO internal affairs investigation into the MCSO’s failure to

follow the Court’s May 14, 2014 orders, but he did not know the results of tha

investigation. (Tr. 635-36). To the extent that any such investigation ever occurred please

identify it. Identify whether it is opened or closed, whether a final report has ever been

issued, whether the investigation has been provided to the Parties and or the Monitor,

and/or whether it was admitted into evidence in this matter.


6 above, Defendant Arpaio objects to being required to answer Question 6(g)



Counsel for Defendant Arpaio is informed and believes that no

investigation was opened on this matter.

Audio Recordings

7. The Court is aware from representations made by MCSO personnel at post-

trial conferences and status hearings and the evidence at the contempt hearing of the



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capacity of MCSO patrol deputies to make audio recordings of their public encounters

during the relevant discovery period in this case.

(a) Please point to any admitted evidence suggesting that any audio

recordings were recovered or reviewed by MCSO or made available to the Plaintiffs,

either prior to trial in this action or thereafter.

Pursuant to the legal authorities stated in Section I above, this Court’s

Order impermissibly requests Defendants to identify testimony that may support a

finding that Defendant Arpaio violated the Courts’ Orders beyond a reasonable

doubt. This impermissibly shifts the burden of persuasion for a civil contempt

proceeding involving a complex injunction. As such, Defendant Arpaio objects to

the Court’s question and its request for Defendant Arpaio to “point to” evidence that

Defendant Arpaio has no burden of proving. However, pursuant to Defendant

Arpaio’s ongoing obligation to supplement discovery, and without waiving the


Counsel for Defendant Arpaio is informed and believes that copies of

the 8900 videos were provided both to the Monitor and Plaintiffs.

(b) The self-surrender of such files appears to be the subject of an Internal Affairs Investigation, see, e.g., Ex. 2943 (IA2014-0253). Is this investigation

closed? Has any final report been issued in this or other investigations that pertains to

MCSO audio files? Has it been provided to the Parties and/or the Monitor. Has it been

admitted into evidence in this action?


7(a) above, Defendant Arpaio objects to being required to answer Question 7(b)



Counsel for Defendant Arpaio is informed and believes that IA2014-

0253 is still pending, and a final report has not been issued.



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Reports

8. The Court is aware from representations made by MCSO personnel at post-

trial conferences and status hearings and the hearing evidence that a number of MCSO

reports relevant to the underlying trial were identified and provided after trial.

(a) Have all such reports whenever located been made available and/or

provided to the Plaintiffs for their inspection?


Arpaio objects to this question. The Court’s inquiry in Question 8(a) is not specific

enough to permit Defendant Arpaio to answer its question because Defendant

Arpaio is unsure to which reports the Court is referring. Under Defendant Arpaio’s

due process rights, he is entitled to advance notice and opportunity to refute any

evidence being offered against him and the Court’s unclear question precludes him

from adequately responding to its inquiry. In addition, it is not Defendant Arpaio’s

burden to prove any alleged contempt, and asking Defendant Arpaio to identify

these reports impermissibly shifts that burden. For these reasons, Defendant Arpaio

objects to Question 8(a).

(b) Are they all accounted for in the testimony of Emily Doan? See, e.g

Ex. 215?

For the reasons stated in Defendant Arpaio’s answer to Question 8(a)

above, Defendant Arpaio objects to this question.

(c) Were any of these reports provided to Emily Doan provided prior to

the trial of this matter?


above, Defendant Arpaio objects to this question.

(d) Items including reports found after trial at Enforcement Support in

November 2014 appear to be the subject of an Internal Affairs Investigation, see, e.g., Ex

2943 (IA2015-0018). Is this investigation closed? Has any final report been issued in this



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or other investigations that pertain to responsive reports found and disclosed after the

trial of this matter? Have such reports been provided to the Parties and/or the Monitor?

Have they been admitted into evidence in this action?


8(a) above, Defendant Arpaio objects to being required to answer Question 8(d)



Counsel for Defendant Arpaio is informed and believes that, and

pursuant to Attorney Iafrate’s production index, portions of IA2015-0018 were

disclosed on was 2/25/15, 4/21/15 (criminal), 6/1/15, 6/4/15, 6/30/15 (criminal),

7/30/15, 7/31/15, 8/4/15, 8/5/15, 9/16/15, and 9/21/15. Memoranda regarding the

criminal investigation were admitted into evidence on 10/1/15 as Exhibits 2887 and

2890.

Identifications

9. Throughout the post-trial period a number of identifications of persons,

many of which appear to be identifications of potential members of the Plaintiff class,

have come to light in the custody of the MCSO or its deputies.

(a) There has been testimony that approximately 500 identifications were

found on the property of Deputy Armendariz. Chief Deputy Sheridan testified that, as a

general matter, he does not believe that investigators into the Armendariz matter looked

into how these identifications came into the custody of MCSO deputy sheriffs. Has there

been any contrary testimony or evidence? Has there been any contrary testimony or

evidence as it relates to the identifications that have come forward since that time?


Arpaio objects to this question. It is not Defendant Arpaio’s burden to prove the

alleged contempt, and asking Defendant Arpaio to identify evidence related to

identifications that came into custody of MCSO as a result of the Armendariz matter

impermissibly shifts that burden. For these reasons, Defendant Arpaio objects to

Question 9(a). However, pursuant to Defendant Arpaio’s ongoing obligation to

supplement discovery, and without waiving the aforementioned objections, he states



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as follows:

Counsel for Defendant Arpaio is informed and believes that, and as

indicated in Armendariz Linked 06-22-15.xlsx (MEL253132), MCSO did in fact

attempt to determine how the subject identifications came into the custody of MCSO

Deputy Sheriffs. This was provided to Plaintiffs on 7/14/15.

(b) Such identifications appear to be the subject or partial subject of a

number of PSB investigations. These include: IA2014-221 (Armendariz is the only

principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339

(what is 267 found in locker at HSU? Does this refer to Identifications?) IA2014-0541

(does this investigation into property taken from drop houses also include

identifications?),3 IA2014-0579 (Driver’s license), IA2014-587 (Driver’s license),

IA2014- 0588 (Id card), IA2014-0775, IA2014-776, IA2014-777, IA2014-0780, IA2014-

0781, IA2014-782, IA2014-783, IA2014-821, IA2015-0022. Are these investigationsclosed?


above, Defendant Arpaio objects to this question. However, pursuant to Defendant



Counsel for Defendant Arpaio is informed and believes that, the above-referenced investigations are now closed. Further, the findings indicated in Exhibit

2943 are accurate with the exception of IA2014-0221, which is now sustained.

Has any final report been issued in these or other investigations that pertain

to identifications found in the custody of MCSO or its deputies or volunteers?





Counsel for Defendant Arpaio is informed and believes that, final

3Counsel for Defendant Arpaio is informed and believes that IA2014-0541

includes identifications.



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reports have been issued for several of the above-referenced investigations. See also

Defendant Arpaio’s response to the following question for which IA’s have final

reports issued.

Have they been provided to the Parties and/or the Monitor?





Counsel for Defendant Arpaio is informed and believes that:

IA2014-0221 is now completed and was provided to the

Monitor and the Parties on 11/9/15. Moreover,

according to Attorney Iafrate’s production index,

documents related to the 221 investigation were being

disclosed throughout the last year including weekly

reports and portions of evidence and supplements.

Exhibits 2020, 2055, 2056, 2057, 2058, 2069 admitted

10/14/15 are weekly status reports regarding this

investigation.

IA2014-0295 was admitted into evidence on 10/14/15 as

Exhibits 2020, 2055, 2056, 2057, 2058, and 2069. These

exhibits represent weekly status reports regarding the

investigation.

IA2014-0339 was sent to Monitor on 10/16/15.

IA2014-0541 was sent to the Monitor and Plaintiff’s

Counsel on 9/27/15. Moreover, pursuant to Attorney

Iafrate’s production index this documents related to

IA2014-0541 were disclosed on 6/4/15, 8/12/15, and

9/25/15.

IA2014-0579, pursuant to Attorney Iafrate’s

production index, documents related to IA2014-0579

were disclosed on 11/20/14, 2/27/15, 4/24/15, 5/21/15,

5/22/15, and 9/16/15.



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5/22/15, and 9/16/15.

IA2014-0588, pursuant to Attorney Iafrate’sproduction index, documents related to IA2014-0588


and 9/16/15.



were disclosed on 2/25/15, 7/29/15, and 9/21/15.









were disclosed on 2/25/15, 7/30/15, 7/31/15, and 9/21/15.







production index, documents related toIA2014-0783


IA2014-0821 was sent to the MCSO Court

Implementation Division (as part of PSB’s monthly

production) on 10/16/15.






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9/21/15, 9/25/15, 9/29/15, 9/30/15, and 10/7/15.

Discipline Reversal paperwork was sent, at the

Monitor’s request, to the Monitor and Plaintiff’s

counsel on 9/29/15.







IA2014-0221 was admitted into evidence on 10/14/15 asExhibits 2020, 2055, 2056, 2057, 2058, and 2069. Theseexhibits represent the weekly status reports regardingthe investigation.

IA2014-0295 was admitted into evidence on 10/14/15 asExhibits 2020, 2055, 2056, 2057, 2058, and 2069. Theseexhibits represent the weekly status reports regardingthe investigation.

Plaintiffs failed to introduce the followinginvestigations into evidence: IA2014-0339, IA2014-

0541, IA2014-0579, IA2014-0587, IA2014-0588, IA2014-0775, IA2014-0776, IA2014-0777, IA2014-0780, IA2014-0781, IA2014-0782, IA2014-0783, IA2014-0821, IA2015-0022.

(c) Were Plaintiffs given access to any such materials that they may have

wished to review?





Counsel for Defendant Arpaio is informed and believes that to the

extent Plaintiffs timely and reasonably requested access to such materials, Defendant



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Arpaio complied with Plaintiffs’ requests in as timely a manner as possible.

Other Items of Personal Property and/or Tangible Things

10. Throughout the post-trial period a number of items of property or tangible

things including license plates, purses, credit cards, bank cards, debit cards, cell phones,

narcotics, weapons, drugs, and currency that may have come from members of the Plaintiff class have continued to come to the attention of the Defendants.

(a) Such property appears to be the subject or partial subject of a

number of PSB investigations. These include: IA2014-221 (Armendariz is the only

principal), IA2014-0295 (criminal investigation of Cisco Perez allegations), IA2014-0339

(what is 267 found in locker at HSU? Does this refer to property?), IA2014-0541, IA2014-

588 (Navy Credit Union card), IA2014-0780 (photos, docs), IA2014-817 (drugs), IA2015-

0018) (there are two entries for this in Ex. 2943, is there a reason for this? (cash, CDs)4 ,

IA2015-0019 (purse) IA2015-21 (currency), IA2015-22 (2 cd’s 1 notebook).

To the extent Question 10(a) poses a question, Defendant Arpaio objects

on the basis that it is unclear what is being requested, and that responding to any

request may violate Defendant Arpaio’s Due Process Rights, impermissibly shifts the

burden of persuasion and impermissibly calls for admission of evidence after

evidence has closed.

(b) Are these investigations, and any investigations that MCSO intends

to initiate on such property, closed?





Counsel for Defendant Arpaio is informed and believes that, the above-

referenced investigations are now closed. Further, the findings indicated in Exhibit

2943 are accurate with the exception of IA2014-0221, which is now sustained.

4Upon information and belief, and as indicated in Plaintiff’s Exhibit 2943,

CIA2015-0018 signifies a Criminal Internal Investigation, while IA2015-0018 denotesan Administrative Internal Investigation.



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Has any final report been issued in these or other investigations that pertain to property

found in the custody of MCSO or its deputies or volunteers?





Counsel for Defendant Arpaio is informed and believes that fina

reports have been issued for several of the above-referenced investigations. See also

Defendant Arpaio’s response to the following question for which IA’s have final

reports issued.

Have they been provided to the Parties and/or the Monitor?






IA2014-0221 is now completed and was provided to the

Monitor and the Parties on 11/9/15. Moreover,

according to Attorney Iafrate’s production index,

documents related to the 221 investigation were being

disclosed throughout the last year including weekly

reports and portions of evidence and supplements.

Exhibits 2020, 2055, 2056, 2057, 2058, 2069 admitted

10/14/15 are weekly status reports regarding this

investigation.

IA2014-0295 was admitted into evidence on 10/14/15 as

Exhibits 2020, 2055, 2056, 2057, 2058, and 2069. These

exhibits represent weekly status reports regarding the

investigation.

IA2014-0339 was sent to Monitor 10/16/15.



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IA2014-0541 was sent to the Monitor and Plaintiff’s

Counsel on 9/27/15. Moreover, pursuant to Attorney

Iafrate’s production index, documents related to

IA2014-0541 were disclosed on 6/4/15, 8/12/15, and

9/25/15.




and 9/16/15.





production index, documents related to IA 2014-0817were disclosed on 5/15/15, 5/21/15, 5/22/15, and 9/16/15.

IA2015-0018, pursuant to Attorney Iafrate’sproduction index, documents related to IA 2015-0018were disclosed on 2/25/15, 4/21/15 (criminal), 6/1/15,6/4/15, 6/30/15 (criminal), 7/30/15, 7/31/15, 8/4/15,8/5/15, 9/16/15, and 9/21/15. Memoranda regarding thecriminal investigation were admitted into evidence on10/1/15 as Exhibits 2887 and 2890.


were listed as disclosed on 7/30/15, 7/31/15, and 9/21/15.

IA2015-0021 – Exhibit 2010 admitted 10/14/15 containsthe “Background Packet” for this investigation.Attorney Iafrate’s production index documents relatedtoIA2015-0021 were disclosed on 5/26/15, 7/30/15,8/4/15, 9/21/15, 9/24/15, and 10/1/15.

IA2015-0022, pursuant to Attorney Iafrate’sproduction index, documents related to IA2015-0022were disclosed on 7/30/15, 8/4/15, 8/12/15, 8/26/15,9/21/15, 9/25/15, 9/29/15, 9/30/15, and 10/7/15.Discipline Reversal paperwork was sent, at theMonitor’s request, to the Monitor and Plaintiff’scounsel on 9/29/15.






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10(a) above, Defendant Arpaio objects to being required to answer Question 10(d)



Counsel for Defendant Arpaio is informed and believes that MCSO has

initiated PSB investigations with Officer Raphaelita Montoya as the principal under

IA-2014-0541 and IA2015-0021. IA2014-0541 was initiated on September 12, 2014

IA2015-0021 was initiated on January 9, 2015. IA2014-0541 was provided to the

Monitor and Plaintiff’s Counsel on September 27, 2015 and IA2015-0021 was

provided to the Monitor and Plaintiff’s Counsel on October 8, 2015.

11. This Court has already ruled that it could draw negative factual inferences

from the destruction of evidence resulting from the failure of Defendants to comply eitherwith the original preservation letters sent by Plaintiff to the MCSO on or about July 21,

2008. Plaintiffs followed up the preservation letter with broad interrogatories and

document production requests seeking any documents or tangible things referencing

MCSO traffic stops, created during MCSO traffic stops, resulting from MCSO traffic

stops or guiding an officer’s discretion during MCSO traffic stops. Examples of the

relevant discovery requests are cited in the Order to Show Cause. (Doc. 880 at 18-20). To

the extent that Plaintiffs assert that this Court is entitled to draw negative factual

inferences for destroyed documents it should state why. To the extent that the Defendant

contests otherwise, it should similarly so state. Similarly to the extent that the parties

believe the Court does not have the power to fashion a remedy based on the materialswithheld before trial they should so state.

Defendant Arpaio objects to any attempt by this Court to draw negative

factual inferences for destroyed documents that relate to July 21, 2008 production

requests.

First, any attempt to draw negative factual inferences for the destroyed

documents is barred by the Merger doctrine. The Merger doctrine, a subset of res

judicata, “bars litigation of all matters which could have been raised in support of a

cause of action previously litigated.” Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir

1983); Restatement (Second) Judgments § 18 (1982); see also Owens v. Kaiser Found.

Health Plan Inc., 244 F.3d 708, 713 (9th Cir. 2001) (For res judicata to apply, there



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must be “(1) an identity of claims, (2) a final judgment on the merits, and (3) identity

or privity between parties.”). The scope of “the claim extinguished includes al

rights of the plaintiff to remedies against the defendant with respect to all or any

part of the transaction, or series of connected transactions, out of which the action

arose.” Restatement (Second) Judgments § 24(1) (adopted in Western Sys. v. Ulloa

958 F.2d 864, 871 (9th Cir. 1992)).

Here, there is an identity of claims involving a final judgment on the

merits because this is a continuation of the same matter, involving the same parties,

regarding whether Defendant Arpaio’s has complied with the Court’s prior

injunctive Orders. As such, under the Merger doctrine, the Court’s final judgment

on the merits (issued on October 2, 2013), extinguished all rights of the Plaintiffs to

remedies against Defendant Arpaio with respect to all or any part of the transaction

or series of connected transactions, out of which Plaintiffs’ actions arose, including

issues involving whether documents should have been produced subject to the

Plaintiffs’ July 21, 2008 discovery requests.

Moreover, by waiting over five years to raise the issue of production of

MCSO traffic stops, including video documentation of those stops, both the Court

and Plaintiffs are depriving MCSO of the ability to take corrective action. This is

important because civil contempt, as opposed to criminal contempt, is “wholly

remedial.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). In

addition, Defendant Arpaio and the other purported civil contemnors inability to

reduce or avoid any potential sanctions through compliance may also impact the

discussion of whether any sanctions deemed necessary are criminal or civil. See

Bagwell , 512 U.S. at 828-29 (quoting Penfield Co. of Cal. v. SEC , 330 U.S. 585, 590

(1947)) (“[A] ‘flat, unconditional fine’ totaling even as little as $50 announced after a

finding of contempt is criminal if the contemnor has no subsequent opportunity to



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reduce or avoid the fine through compliance.”).5

As such, Defendant Arpaio objects

to any desire by the Court to draw a negative factual inference for destroyed

documents that relate to Plaintiff’s July 21, 2008 production requests.

Finally, for the same reasons stated above, Defendant Arpaio asserts

that the Court does not have the power to fashion a remedy based on the materials at

issue because the alleged violation merged with the Court’s final judgment on the

merits and extinguished all rights of the parties toward any such remedy.

PSB Investigations Generally

12. Does Doc. 1420 (the unredacted version of Ex. 2943) disclose all assigned

PSB investigations of which MCSO is aware with assigned IA numbers that are related to

this case?


Arpaio objects to this question on the basis that responding to any request may

violate Defendant Arpaio’s Due Process Rights, impermissibly shifts the burden of

persuasion and impermissibly calls for admission of evidence after evidence has

closed. For this reason, Defendant Arpaio objects to Question 12. However

pursuant to Defendant Arpaio’s ongoing obligation to supplement discovery, and

without waiving the aforementioned objections, he states as follows:

Counsel for Defendant Arpaio is informed and believes that an updated

version of Doc. 1420, which includes an additional identification case (IA2015-0780)

was provided to the Monitor on October 16, 2015 as MELC1404203a –

MELC14042017a.

(a) Is there any evidence which would suggest that Doc. 1420 and/or Ex.

2943 does other than accurately state the IA number, Principal, Findings, Discipline,

Summary and Property associated with each investigation?

5Defendant Arpaio also notes that when the issue of these videos arose,

Defendant Arpaio and MCSO undertook a massive effort to review 8900 videos andseasonably disclose them to Plaintiffs and the Monitor.



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12 above, Defendant Arpaio objects to being required to answer Question 12(a)



Counsel for Defendant Arpaio is informed and believes that no such

evidence exists.

(b) Are there matters or investigations related to this case or the

Armendariz investigations, or the matters raised by them, of which MCSO is aware, tha

have not yet been or never were assigned an IA case number?


12 above, Defendant Arpaio objects to being required to answer Question 12(b)




additional matters or investigations exist.

Have any such investigations ever been suspended, abandoned or otherwise not yet

completed? If so please specifically identify such matters to the Court.


12 above, Defendant Arpaio objects to being required to answer Question 12(b)




additional matters or investigations exist.

(c) Pursuant to Doc. 1420 and/or Ex. 2943 MCSO is still engaged in

ongoing internal investigations. Some, although now completed, may not have been

completed and provided to Plaintiffs prior to the time that these contempt hearings began

Some, by the acknowledgement of the Defendants, will not have been completed until at

least shortly after the evidentiary proceedings in this contempt hearing have terminated,

see, e.g., IA2014-221, and still have yet to be provided to the Parties and/or Cour



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Monitor. For the reasons set forth above, with respect to all of the investigations

identified in Doc. 1420 and/or Ex. 2943, please identify as precisely as possible: (1) the

specific date on which the IA number was drawn or the investigation began whichever is

earlier; (2) whether the investigation remains open; (3) the specific date on which the

investigation was completed; (4) the specific date on which the complete investigation

findings and supporting materials were provided to the Monitor; and (5) the specific dateon which the completed investigation findings and supporting materials were provided to

the Plaintiff. If the investigation remains open please so indicate to the extent that Doc.

1420 does not already do so.


12 above, Defendant Arpaio objects to being required to answer Question 12(c)



Counsel for Defendant Arpaio is informed and believes that an updated

version of Doc. 1420 and/or Ex. 2943, which includes an additional identification case

(IA2015-0780), was provided to the Monitor on October 16, 2015 as MELC1404203a

– MELC14042017a. This version contains information responsive to the Court’s

questions in 12(c).

(d) Please provide this same information for any investigations identifiedin response to (c) above.


12 above, Defendant Arpaio objects to being required to answer Question 12(d)



See Defendant Arpaio’s response to question 12(c), above.

(e) Do any of the PSB investigations enumerated in Doc. 1420 and/or

Ex. 2943 indicate that Chief Deputy Sheridan recused himself from any participation in

those investigations?


12 above, Defendant Arpaio objects to being required to answer Question 12(e)



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Counsel for Defendant Arpaio is informed and believes that Chief

Deputy Sheridan did not recuse himself from any participation in the investigations

enumerated in Doc. 1420.

(f) Do any of the PSB investigations enumerated in Doc. 1420 and or

Ex. 2943 indicate that Captain Bailey recused himself from any participation in those

investigations?


12 above, Defendant Arpaio objects to being required to answer Question 12(f)



Counsel for Defendant Arpaio is informed and believes that Captain

Bailey did not recuse himself from any participation in the investigations

enumerated in Doc. 1420.

13. There has been apparently conflicting testimony by MCSO personnel as to

whether the timeline by which a PSB administrative investigation must be completed is

tolled by the instigation of a related criminal investigation. There has also been testimony

that the PSB administrative timeline is 120 days, and other testimony that it is 180 days.

The conflicting testimony regarding the PSB administrative timeline is

the result of a statutory change that occurred on January 1, 2015. Since January 1

2015, the PSB administrative timeline has been “180 calendar days” pursuant to

A.R.S. § 38-1110 Prior to January 1, 2015, the PSB administrative timeline was “120

business days” pursuant to ARS § 38-1105(B)(1) (in effect until Dec. 31, 2014).

Please identify and provide the relevant provisions of:

(a) The policy, contract, precedent, regulation or any other authority

suggesting what the timeline is or was during the years since 2011; and,



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The conflicting testimony regarding the PSB administrative timeline is

the result of a statutory change that occurred on January 1, 2015. Prior to January

1, 2015, the PSB administrative timeline was “120 business days” pursuant to ARS §

38-1105(B)(1) (in effect until Dec. 31, 2014). However, since the change, the PSB

administrative timeline is “180 calendar days” pursuant to A.R.S. § 38-1110, MCSO

Policy GH-2, and MCSO Briefing Board 14-73.

(b) Any policy, contract, precedent, regulation or any other authority

which suggests that the running of the time period is tolled by an intervening and related

criminal investigation.

See A.R.S. § 38-1110(B)(1) and MCSO Policy GH-2.3(B)(6)(a).

14. Please provide any legal authority that might suggest that one an officer is

deceased, statements made by him in a compelled administrative interview may not be

used or taken into account in a corresponding criminal investigation.

In Garrity v. State of N.J ., 385 U.S. 493, 500 (1967), the Supreme Court

held that when a police officer being investigated was given the choice either to

incriminate himself or to forfeit his job under New Jersey statute dealing with

forfeiture of office or employment, tenure, and pension rights of persons refusing totestify on ground of self-incrimination, the officer’s choice to make a confession was

not voluntary but was coerced, and the Fourteenth Amendment prohibited its use in

a corresponding criminal investigation. Id. Importantly, the concerns expressed in

Garrity do not fade if the officer is deceased because statements made during a

compelled administrative interview are akin to those made under duress. See id. at

498-99 (“Where the choice is between the rock and the whirlpool, duress is inherent

in deciding to ‘waive’ one or the other.”) (quotations omitted). Garrity recognized

that it was the compelled nature of an Officer’s testimony that was the driving force

behind prohibiting its use in subsequent criminal investigations. Accordingly, the

death of an officer after a compelled administrative interview does not change the

coercive nature the questions asked nor the questionable circumstances of the



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response given by the Officer. Defendant Arpaio, therefore, maintains that once an

officer is deceased, statements made by him during a compelled administrative

interview may not be taken into account in a corresponding criminal investigation.

February Discovery Orders

15. Captain Skinner testified that he issued internal directives within MCSO

pertaining to compliance with the Court’s February 2015 discovery orders. If such

directives are part of the evidence admitted in the record, please indicate where they can

be located.

Counsel for Defendant Arpaio is informed and believes on January 27

2015, Captain Skinner distributed via e-mail Plaintiffs’ Motion to the Court for

Expedited Discovery (Doc. 862) to all Bureau Commanders and discussed the

Motion with Chief Deputy Sheridan and the Bureau Chiefs at MCSO’s Weekly

Update Meeting. On February 17, 2015, Captain Skinner printed hard copies of the

Order Granting Plaintiffs’ Motion for Expedited Discovery (Doc. 881) and discussed

the Order with Chief Deputy Sheridan and the Bureau Chiefs at MCSO’s Weekly

Update Meeting. On March 4, 2015, Captain Skinner redistributed the Court’s

Order via e-mail to all Bureau Chiefs. Defendant Arpaio is not aware that these

communications and e-mails are evidence admitted in the record, however,

Defendant Arpaio points the Court to Captain Skinner’s testimony on November 10

2015, at pages 4219-4221 and 4266-4269, where he generally testified on the

foregoing events.



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DATED this 4 day of December , 2015.

JONES, SKELTON & HOCHULI, P.L.C.

By s/ John T. MastersonJohn T. MastersonJoseph J. PopolizioJustin M. AckermanJacob L. Speckhard2901 North Central Avenue, Suite 800Phoenix, Arizona 85012Attorneys for Defendant Joseph M. Arpaioin his official capacity as Sheriff ofMaricopa County, AZ

CERTIFICATE OF SERVICEI hereby certify that on this 4

thday of December, 2015, I caused the

foregoing document to be filed electronically with the Clerk of Court through the

CM/ECF System for filing; and served on counsel of record via the Court’s CM/ECF

system.

/s/ Mary M. Soto


Documents

Melendres # 1588 | Arpaio Response to Nov 18 Order