Melendres v. Arpaio #1354 Sept 10 2015A TRANSCRIPT - AM Status Conference

8/20/2019 Melendres v. Arpaio #1354 Sept 10 2015A TRANSCRIPT - AM Status Conference

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1

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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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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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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09:05:

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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.


MR. MASTERSON: Good morning, Your Honor. John

Masterson for Sheriff Arpaio and MCSO.


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.


MR. BIRNBAUM: Good morning, Your Honor. Gary

Birnbaum, special counsel for Deputy Chief John MacIntyre.


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MR. EISENBERG: Good morning, Your Honor. David

Eisenberg making a special appearance on behalf of Lieutenant

Joseph Sousa. He is present in the courtroom.


MR. EISENBERG: Good morning.

MR. CALDERON: Good morning, Your Honor. Ernest

Calderon for nonparty William Montgomery, Maricopa County

Attorney, and his office.


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.


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.


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.


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.


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.


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.


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

Documents

Melendres v. Arpaio #1354 Sept 10 2015A TRANSCRIPT - AM Status Conference