Melendres v. Arpaio #1381 Sept 18 2015 TRANSCRIPT - Status Conference

8/20/2019 Melendres v. Arpaio #1381 Sept 18 2015 TRANSCRIPT - Status Conference

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

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No. CV 07-2513-PHX-GMS

Phoenix, Arizona

September 18, 2015

10:35 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Status Conference)

Court Reporter: Gary Moll

401 W. Washington Street, SPC #38

Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription


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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 2

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street

San Francisco, California 94111

American Civil Liberties Union Foundation

Immigrants' Rights Project

By: Andre Segura, Esq. - Telephonically

125 Broad Street, 18th FloorNew York, New York 10004

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Stanley Young, Esq.

By: Michelle L. Morin, Esq. - Telephonically

333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

University of California Irvine School of Law

Immigrants' Rights ClinicBy: Anne Lai, Esq.

401 E. Peltrason Drive, Suite 3500Irvine, California 92697

Mexican American Legal Defense and Educational FundBy: Jorge M. Castillo, Esq. - Telephonically

634 S. Spring Street, 11th FloorLos Angeles, California 90014

For the Defendant Maricopa County:Walker & Peskind, PLLC

By: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq. - Telephonically

SGA Corporate Center

16100 N. 7th Street, Suite 140Phoenix, Arizona 85254


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For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:

Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd Avenue


Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq. - Telephonically

By: John T. Masterson, Esq.

By: Justin M. Ackerman, Esq.By: Joseph T. Popolizio, Esq. - Telephonically2901 N. Central Avenue, Suite 800


For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq. - Telephonically

P.O. Box 20527Phoenix, Arizona 85036

For the Movants Maricopa County Attorney's Office and MaricopaCounty Attorney William Montgomery:

Ridenour Hienton, PLLC

By: April M. Hamilton, Esq. - Telephonically

By: Ernest Calderon, Esq.Chase Tower

201 N. Central Avenue, Suite 3300Phoenix, Arizona 85004

For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLC

By: Mitesh V. Patel, Esq.1850 North Central Avenue, Suite 1400


For Lieutenant Joseph Sousa:

David Eisenberg, PLCBy: David Eisenberg, Esq.

2702 N. 3rd Street, Suite 4003



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For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division

By: Paul Killebrew, Esq.By: Puneet Cheema, Esq.950 Pennsylvania Avenue NW, 5th Floor

Washington, D.C. 20530

U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq. - Telephonically

601 D. Street NW, #5011

Washington, D.C. 20004

For Chief Deputy Gerard Sheridan:

Mitchell Stein Carey, PCBy: Lee D. Stein, Esq. - Telephonically1 Renaissance Square

2 North Central Avenue, Suite 1900Phoenix, Arizona 85004

For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP

By: Greg S. Como, Esq. - Telephonically2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012

For Timothy J. Casey:Adams & Clark, PC

By: Karen Clark, Esq.520 E. Portland Street


Also present:

Commander John Girvin, Deputy Monitor- TelephonicallyChief Raul Martinez, Deputy Monitor - Telephonically

Chief Deputy Gerard Sheridan

Lieutenant Joseph Sousa


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P R O C E E D I N G S

THE COURT: Please be seated.

THE CLERK: This is civil case number 07-2513,

Melendres, et al., v. Arpaio, et al., on for status conference.

Counsel, please announce.

MS. WANG: Good morning, Your Honor. Cecillia Wang of

the ACLU for plaintiffs.

THE COURT: Good morning.

MR. YOUNG: Good morning, Your Honor. Stanley Young,

Covington & Burling, for plaintiffs.

MR. POCHODA: Good morning. Dan Pochoda from the ACLU

of Arizona for plaintiffs.

MS. LAI: Your Honor, Anne Lai for plaintiffs.

MS. CHEEMA: Good morning, Your Honor. Puneet Cheema

for the United States.

MR. KILLEBREW: Good morning, Your Honor. Paul

Killebrew for the United States.

MS. IAFRATE: Good morning, Your Honor. Michele

Iafrate on behalf of Sheriff Arpaio and Jerry Sheridan and the

unnamed contemnors.

MR. MASTERSON: Good morning, Judge. John Masterson

and Justin Ackerman for Sheriff Arpaio and MCSO.

MR. WALKER: Good morning -- excuse me. Good morning,

Your Honor. Richard Walker on behalf of Maricopa County,


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subject to those issues pending before the Court.

THE COURT: Well, I'm going to make it clear again,

Mr. Walker, you can reserve whatever rights you want but you're

here representing Maricopa County.

MR. WALKER: Yes, that's true, Your Honor.

THE COURT: Maricopa County, all of Maricopa County,

but nothing but Maricopa County, correct?

MR. WALKER: I'm representing Maricopa County.

THE COURT: Thank you.

MR. EISENBERG: Good morning, Your Honor. David

Eisenberg specially appearing on behalf of Lieutenant Sousa,

who is present in the courtroom.

MR. PATEL: Good morning, Your Honor. Mitesh Patel

with Dickinson Wright, specially appearing for Deputy Chief

MacIntyre.

MR. CALDERON: Good morning, Your Honor. Ernest

Calderon on behalf of nonparty and Maricopa County Attorney

Bill Montgomery and his office.

MS. CLARK: Good morning, Judge. Karen Clark on

behalf of Tim Casey.

THE COURT: Good morning.

Who do we have on the phone?

MR. SEGURA: Good morning, Your Honor. This is Andre

Segura of the ACLU for the plaintiffs. I have several others

with me in a deposition room.


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MR. JIRAUCH: Charles (voice cutting out) Walker &

Peskind on behalf of Maricopa County.

MR. WOODS: Terry Woods on behalf (voice cutting out).

MR. POPOLIZIO: (Voice cutting out) Popolizio on

behalf of the sheriff.

MR. COMO: Greg Como on behalf of Chief Sands.

CHIEF MARTINEZ: Good morning, Your Honor.

Chief Martinez and Commander Girvin, Deputy Monitors.

MR. STEIN: Lee Stein on behalf -- specially appearing

on behalf of Chief Sheridan.

MS. COE: Cynthia Coe on behalf of DOJ.

MS. HAMILTON: April Hamilton on behalf of Maricopa

County Attorney and Maricopa County Attorney's Office.

MR. McDONALD: Mel McDonald making a special

appearance on behalf of Joe Arpaio, the sheriff.

MR. CASTILLO: Jorge Castillo for MALDEF on behalf of

plaintiff.

MS. MORIN: Michelle Morin from Covington on behalf of

plaintiff.

THE COURT: We missed everyone who announced between

Mr. Segura and Mr. Woods because we were trying to adjust the

volume upward, so would you restate if you announced your

appearance between Mr. Segura and Mr. Woods.

MR. JIRAUCH: I believe, Your Honor, that I'm the only

one. Charles Jirauch of Walter & Peskind on behalf of Maricopa


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County.

THE COURT: All right. Thank you.

We have a number of issues to take up today. Because

the parties and I had some informal conferences at the Casey

deposition, which I attended all day, I think that we can

expedite matters based on those understandings. But if anybody

has any concerns about them, it's one of the reasons I raised

them there.

It seems to me, though, that before we get down to

scheduling, we need to figure out what depositions, if any, are

going to be taken. Plaintiffs' motion to compel testimony re

July 17, 2015 meeting and MCSO's non-disclosure of the 1500 IDs

has been fully briefed, is at issue.

I've read the motion, the response, and the reply.

I'm not going to encourage a ton of oral argument, but I'll

allow it if somebody wants to be heard.

MS. WANG: Your Honor, I can address very briefly the

key points. Your Honor, I think the issues are clear.

Defendants very clearly waived any privilege that may have

attached to the July 17, 2015 meeting on the subject of the

1500 IDs, and more broadly on the 1500 IDs altogether.

As we cite in our very abbreviated reply brief, the

testimony of Chief Deputy Sheridan very expressly relies on

advice of counsel, and therefore, we believe there has been a

subject-matter waiver.


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Defendants essentially respond only by saying that

individual employees of MCSO cannot waive the privilege, but

that is not the situation here. Each of those witnesses was --

the depositions of each of those witnesses was defended by

defendants' counsel, by the sheriff's counsel, there was no

instruction not to answer, and the testimony makes it very

clear that we have a waiver here on that subject matter.

THE COURT: Does the testimony in chief -- or in

Captain Bailey's testimony offer an explanation as to why he

didn't disclose the existence of the identifications when the

monitor asked?

MS. WANG: I believe that the testimony showed that

there was -- there was advice of counsel. I would acknowledge

that it is not as clear as Chief Deputy Sheridan's testimony,

but the testimony of Chief Deputy Sheridan clearly pertained to

his conclusion about whether Captain Bailey was being truthful

with the monitor or not during the July 20th meeting. And I do

think that Captain Bailey testified enough to the subject

matter of that July 17th meeting that there -- he also has

established the waiver.

To be clear, both Lieutenant Seagraves and

Captain Bailey were asked and did answer that a direction was

given during the July 17th, 2015 meeting not to disclose the

existence of the 1500 IDs to the monitor during the subsequent

monitor site visit, and we went through each of the persons


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present at the July 17th meeting. They all testified that none

of the other people in the room other than defendants' counsel

gave that direction.

THE COURT: Does that matter? If the direction was

indicated and if the direction came from counsel, does it

matter that you went through and eliminated everybody else?

MS. WANG: Well, Your Honor, we think that --

THE COURT: Regardless of where the direction came

from, if there's going to be testimony about the direction, are

you allowed to follow up and ask who the direction came from?

MS. WANG: I believe we are, Your Honor. I believe

that constitutes a waiver of any privilege that would otherwise

have attached.


MS. WANG: Thank you.

THE COURT: Mr. Masterson. Or I don't know, who's

arguing? Is it you, Mr. Ackerman?

MR. ACKERMAN: Yes.

THE COURT: All right.

MR. ACKERMAN: I believe that pursuant to --

THE COURT: Let me just say that I agree, for what

it's worth, that Seagraves has no individual privilege here;

Bailey has no individual privilege here. The question is

whether the defendants waive the privilege.

Bailey is the captain over the PSB, right?


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MR. ACKERMAN: Correct.

THE COURT: He's discussing directions that he

received at the PSB, and there was counsel at that deposition,

was there not?

MR. ACKERMAN: Yes.

THE COURT: And the counsel at the deposition allowed

him to indicate what direction he received pertaining to the

1500 identifications, did they not?

MR. ACKERMAN: Yes, Your Honor.

THE COURT: All right. Why isn't that a waiver? Why

isn't it a subject-matter waiver by the defendants?

MR. ACKERMAN: Even assuming it is a subject-matter

waiver, it's limited because it was not intentional. He had

been instructed repeatedly not to waive by counsel during his

deposition.

THE COURT: Well, it seems to me like you are -- I

mean, I'm not trying to impugn bad intentions, but regardless,

there have been numerous discussions of this. It seems to me

Seagraves, Bailey, Sheridan, in deposition there was, arguably,

waiver in what was told the monitor in his interviews before.

At least that's been represented to me; I haven't read those.

Regardless of what your intent is, isn't that trying

to use the privilege as a sword and a shield?

MR. ACKERMAN: If the privilege has been repeatedly

asserted, I don't see how it's being used as a sword.


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THE COURT: Because you've allowed -- there's never

been any attempt to clawback or talk about inadvertent

disclosure; and clearly, it seems to me at least there is an

implication of advise of counsel. Maybe there's not all the

way there with Bailey.

I have not had an opportunity to read the excerpts

from Chief Deputy Sheridan yet but I will read them if it's

necessary.

MR. ACKERMAN: Neither have I, for the record, by the

way.

THE COURT: What's that?

MR. ACKERMAN: I said I have not had the opportunity

to read them just yet, either.

THE COURT: Well, I'm not even sure it's necessary,

because if you're going to allow all that discussion of what

the direction was, it seems to me like the defendants, not the

individual -- not the individuals, but the defendants have

waived the privilege.

Why haven't they? Because of the use of it as a sword

and shield. I mean, you're clearly trying -- isn't

Captain Bailey clearly trying to say why he didn't disclose

these identifications? And didn't he clearly say why he didn't

disclose these identifications, which was he was instructed not

to disclose them?

MR. ACKERMAN: That is correct, but at the same time,


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it is the attorney-client privilege that protects that.

THE COURT: Is it the attorney-client privilege? Why

haven't you completely waived the attorney-client privilege if

that advice was -- if you completely disclose what the

direction was? And then you say: We don't have to say who

told you?

MR. ACKERMAN: It's a point well taken, Your Honor.

THE COURT: Okay.

MR. MASTERSON: Your Honor, I don't think

Captain Bailey testified that he -- I think the testimony got

as far as: You were asked whether there were additional

internal investigations and you answered no. Why did you do

that? And then the attorney-client privilege was invoked.

THE COURT: Well, I thought that there was clearly an

instruc- -- Bailey testified that he was instructed not to

disclose or discuss the identification.

MR. MASTERSON: I don't think the testimony went that

far, Judge.

THE COURT: Let's look and find it.

Do you have it handy, Ms. Wang?

MS. WANG: Your Honor, I'm looking for that right now.

THE COURT: I mean, again, I haven't had the chance to

look at all the excerpts I just got from you this morning.

Did you provide me with it?

MS. WANG: Your Honor, I believe we did. It's in our


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initial -- I think it's in our opening brief.

And I should clarify something that I said. I believe

that Captain Bailey's testimony as to why he answered the

Monitor Team's question the way he did on July 20th, I believe

he did say that that was based on advice of counsel.

My acknowledgment about it not being as express a

waiver of the privilege in the July 17th meeting was about his

testimony as to the July 17th meeting, but I do need to find

that, Your Honor.

THE COURT: According to the citation you've given me

in your motion, it is the Bailey deposition at page 199, lines

10 through 16:

And was this direction specific? Did you tell the

monitor specifically that a direction was given during the July

17, 2015 meeting not to discuss the Knapp IDs?

Answer: That's -- yes.

And were all of your statements to the monitor

accurate?

Answer: Yes.

Sure looks like that's what he said to me,

Mr. Masterson.

MR. MASTERSON: You're right, Judge.

THE COURT: Okay. There has been a subject-matter

waiver, I'm ruling, and I'm going to allow depositions of -- if

we need to discuss who's going to be deposed, we can do that,


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but I believe there has been and I am ruling that there has

been a subject-matter waiver on the topic of the 1500 IDs,

whether or not disclosure or non-disclosure was authorized, and

what depositions -- let's see. So that will be communication

that occurred between MCSO personnel and counsel on Friday 17

2015 regarding approximately 1459 identification documents that

had been turned in by Sergeant Jon Knapp, and any other

communications that MCSO had with counsel regarding the

disclosure or non-disclosure of the documents found by Knapp up

until the time that the Court noticed a hearing on that issue,

which I think was the night before the 24th. It might have

been -- I think it was the night before the 24th.

Actually, the Court didn't notice the order on the

hearing. I think that chief -- I had Chief Warshaw send out an

e-mail notice saying, If this can't be resolved, I'm going to

the Court. So it will be up until that notice was sent out.

It seems to me that after that time, any discussion

would have been protected in the scope of the likely upcoming

hearing. So that is the window of the subject-matter

disclosure.

Any questions about that?

MS. WANG: No, Your Honor. I believe that means, as

far as we know so far, that we will need to reopen the

depositions of Lieutenant Seagraves, Sergeant Fax, Chief Deputy

Sheridan, and Captain Bailey. Depending on what we discover


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from that, we may need to depose additional individuals, but

that is what we currently plan to do on Tuesday.

THE COURT: All right. Just to save Mr. Masterson the

problem of raising this again, we're only going to be

discussing matters pertaining to my ruling on the waiver. And,

I mean, if you're going to tell me that they relate to past

testimony, as long as you can demonstrate a clear relation,

I'll allow it. But we're not tramping back over all the ground

we've tramped over before; we're just talking about the matters

that I've just ruled on, correct?

MS. WANG: That is understood, Your Honor.

THE COURT: All right. Anything else on this issue

before we go on? Hearing nothing, I am going to go on.

As the parties all know, I sat through the deposition

of Mr. Casey on Wednesday, and during that deposition I became

aware for the first time of the existence of admissible

evidence through the testimony of Mr. Casey which suggests only

the possibility, and I'm not saying anything other than the

possibility, that Mr. Masterson and Mr. Popolizio may have been

present at a meeting at the MCSO at which materials from the

Montgomery investigation may have been discussed with and by

Sheriff Arpaio.

Because that was the first time I became aware, at

least to the extent that there was admissible evidence that

suggested that, I did suggest to the parties that they refer to


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a few issues that we would have to try to resolve today. I

think most of those issues are issues that the parties can

examine and figure out for themselves whether they need to do

anything, and I don't intend to raise those.

But I do intend to explore a little bit before we

proceed further with the issues as I frame them as being ER

3.7, which has to do with attorneys being witnesses. I hadn't

read 3.7 when I raised it; I just indicated that I thought we

all ought to read it, be prepared to discuss it.

I have now reread 3.7, I've reread the comments to

3.7, and it may be a nonissue. And I hope, you know, frankly,

it is, but it may be an issue, and so I think we need to air it

and discuss it today because as I read 3.7, the Court has an

interest that it can make overriding; the plaintiffs have an

interest that they can't necessarily make overriding, but that

they can raise to the Court. The defendants' clients in this

case have an interest in how they proceed, or at least

potential interest in how their own counsel may or may not

proceed.

So ER 3.7 relates to cases in which attorneys may be

called upon to act as witnesses and it doesn't allow it,

although it isn't a blanket prohibition. It says: "A lawyer

shall not act as advocate at a trial in which the lawyer is

likely to be a necessary witness unless: (1) the testimony

relates to an uncontested issue; (2) the testimony relates to


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the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial

hardship on the client." Those seem to me to be the most

relevant sections; there are parts of the comments that are

applicable.

This comes up in the context of the invocation by

Mr. Casey and Mr. Masterson of privilege of comments made by

Sheriff Arpaio when, according to the -- as I remember it. And

you can correct me; I'm not trying to be prejudicial. Or I'm

not trying to presume facts before I've heard all the evidence.

But according to the testimony of Mr. Casey, there was a

discussion in the Sheriff's Office regarding the reliability of

Mr. Montgomery and some of the information in the documents

that have been disclosed previously. And then the sheriff made

some comments. Apparently, the comments were not disclosed on

the invocation of privilege. The question then is: Does the

attorney-client privilege apply?

Mr. Casey, I believe his testimony was that

Mr. Popolizio and Mr. Masterson were in the room, approximately

16 other people were in the room, including people from the

sheriff's public affairs office, and that the sheriff was

asking them about the reliability of Mr. Montgomery.

Mr. Casey, as I recall, testified that he believed two

Maricopa County Sheriff's representatives were on the phone,

and that was what his testimony was.


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After I raised this issue and raised the need to

determine whether or not we were going to have to reopen the

deposition of Mr. Casey to allow the answer after I made a

determination of privilege, I believe that plaintiffs' counsel

represented to me that this is not the first sworn testimony

that discussed this conversation and that there are various

versions of events, including that the person on the phone --

persons on the phone telephonically were not Maricopa County

Sheriff's Office representatives, but were in fact

Mr. Montgomery himself; and that -- and I don't remember what

you said exactly, but various persons who've testified have

given various versions of who was there and what was said.

Because the attorney-client privilege requires that

advice be given and advice be received in a confidential

relationship, and because it must relate to legal advice, I

required you to proceed on a question-by-question basis, but I

think we're still down to the question. And I noted that maybe

we're going to have to wait until the end till everybody gets

deposed for me to determine who was in that meeting, whether --

I think you also waive that there's otherwise been waiver on

this for other reasons, I don't remember. But I indicated that

maybe in the end I'm going to have to hear the testimony of

everybody who you're going to call as a witness who was present

at that meeting to determine whether or not the attorney-client

privilege applies.


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Have I accurately represented that, as best the

parties can remember?

MS. WANG: Yes, Your Honor.

THE COURT: And I think, Mr. Masterson, you were there

for part of this, but Mr. Popolizio replaced you for part of

it, too.

MR. MASTERSON: That is correct, Judge, that the

Court -- my recollection is what the Court just stated.

THE COURT: All right. So I guess the first question

I have in determining how to proceed is: Do you have any

intention to call Mr. Popolizio or Mr. Masterson as a witness?

MS. WANG: We do not, Your Honor. And just a few

minutes before we all came to court this morning we did file

with the Court the transcripts of the deposition testimony of

those witnesses that are pertinent to this issue. That would

be Sergeant Anglin, Mr. Casey, Lieutenant Seagraves,

Captain Bailey, and so you'll have those deposition transcripts

that we filed this morning.

THE COURT: All right. So do you want me to rule

today as to whether or not we're going to reopen the deposition

of Mr. Casey to have him respond to that question, or do you

want me to wait and evaluate those transcripts, or what exactly

do you want me to do with respect to the privilege invocation

with regard to Mr. Casey?

MS. WANG: Your Honor, if it would be helpful to you


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to look at the transcript excerpts, then we're happy to have

you take that into account. We think that the facts the Court

just recited are correct, and apparently defendants do, too.

We think on that basis there's enough for the Court to rule on.

There are two reasons that the January 2nd meeting --

that plaintiffs should be allowed to go into the January 2nd

meeting. Any privilege that ever did attach was waived, first

because of the presence of Mr. Montgomery by telephone;

possibly also because at least Sergeant Anglin very clearly

testified that Mike Zullo, who is a Posse member, was present.

And as far as we know, Mr. Zullo is separately represented by

Larry Klayman, he is not represented by the Sheriff's Office,

and that at least gives rise to the fact that his presence

there did not render the con -- the conversation confidential,

and therefore, no privilege attached.

Secondly, Your Honor, Sergeant Anglin testified in

detail about that meeting on January 22nd of 2014, and

Mr. Casey did testify and was permitted by defense counsel to

testify as to at least some of the subject matter of the

meeting.

THE COURT: Who's going to be addressing this on your

side, Mr. Masterson, is it you?

MR. MASTERSON: Well, there's two issues we're

discussing right now. One is whether there's a problem with ER

3.7.


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THE COURT: Yes. And let me just say, as it relates

to 3.7, when it talks about the Court having a right to object,

I'm not going to object. I mean, I think I know the

difference -- first off, it doesn't seem to me to be an issue,

because Ms. Wang indicates she has no intent or desire to call

you or Mr. Popolizio. And I suppose she could always

reconsider that, but even if she does, as I was reading the

comment, I think I'm perfectly capable of distinguishing

between when you're testifying and when you're arguing.

And with all due respect to you and to Mr. Popolizio,

I will give you the same -- I will approach your testimony,

should it ever become necessary, with the same -- in the same

manner that I approach any other witness's testimony, and then

I'll allow you to argue whatever you're going to argue, and I

think I'm perfectly capable of making a distinction between the

two. So as far as I'm concerned, I've got no objection if you

continue. It sounds to me like Ms. Wang and the plaintiffs

don't have any intention to call you as witnesses.

Just in the interest of full disclosure, I may want to

know -- and maybe this is something we can deal with right

here, although if you'd rather not, I understand that, too. I

may want to know who was in that meeting to determine whether

or not the attorney-client privilege applies. That may be an

issue to me. And we already have memories that are not

consistent, which is not surprising, in my experience.


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But I guess I would ask you to consider this. You

know, if Mr. Montgomery was on the phone, are you going to take

the position that you represent Mr. Montgomery?

MR. MASTERSON: No.

THE COURT: Do you feel comfortable answering whether

Mr. Montgomery was on the -- well, I don't even know whether

you were in the meeting, and I'm not assuming you were. But do

you have any knowledge as to whether Mr. Montgomery was on the

phone that you would be willing to share at this point or would

be appropriate to ask you to share?

MR. MASTERSON: I am willing to share. I'm not

certain how much light I can shed on the issue, however.

Mr. Casey testified that he believed the meeting was

at the Wells Fargo building, I think.

THE COURT: Right.

MR. MASTERSON: And he testified that he recalled at

least Mr. Zullo being on the phone, I think possibly

Mr. Mackiewicz.

THE COURT: I wouldn't challenge that. It seemed to

me he was not particularly clear who was on the phone, but he

did think, as I recall, that it was MCSO people, not

Montgomery.

MR. MASTERSON: My recollection of that meeting, and I

was present at that meeting, is that Mr. Montgomery was not on

the phone.


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THE COURT: Do you remember who was at that meeting?

MR. MASTERSON: I thought it was Mr. Zullo. Now,

whether Mr. Mackiewicz was also on the phone in the background

or possibly even chimed in, I don't recall.

THE COURT: You mean Montgomery or Mackiewicz?

MR. MASTERSON: No, Mackiewicz.

THE COURT: Okay. Do you have any recollection

whether Montgomery was on the phone?

MR. MASTERSON: I have no recollection of ever hearing

Mr. Montgomery's voice.

THE COURT: All right. Who else was present in the

meeting -- well, again, I don't want to make you answer any

questions that you feel uncomfortable answering. But it just

seems to me that if you are comfortable answering them to the

best of your ability, we might be able to get to the bottom of

this, and maybe we can.

MR. MASTERSON: I'm comfortable answering that

question as to who was in the meeting as best I can recall.

Again, I'm not going to shed much light for you.

THE COURT: Okay.

MR. MASTERSON: I recall Mr. Casey, me, Mr. Popolizio,

Mr. Liddy, and people from MCSO. And I cannot tell you whether

the sheriff was there, whether Chief Sheridan was there,

whether Captain Bailey was there; I just don't remember.

THE COURT: Mr. Casey testified, I think he testified


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that he thought --

Who is the public relations person?

MR. MASTERSON: Ms. Allen.

THE COURT: Yeah. He testified that he thought

Ms. Allen was present in the meeting.

Do you have a recollection one way or another whether

Ms. Allen was in the meeting?

MR. MASTERSON: I do not.

THE COURT: Okay. Thank you.

MR. MASTERSON: Now, with -- are we moving on to the

second issue, which is --

THE COURT: I think -- I mean, I'm glad -- here's the

other issue, the only other issue I wanted to raise with you.

And what you've just told me -- and, of course, Mr. Popolizio

may have independent recollections, and I don't want to make

him say unless he feels comfortable saying, but I did hear

Ms. Wang say she doesn't, at least now, intend to call

Mr. Popolizio, but here's the only other issue.

It seems to me that if your testimony would involve

testimony that the sheriff or others -- other defendants would

disagree with, as the comment says, that could create a

conflict between you and counsel -- you and your client.

So the only thing that I would just raise, and it's a

matter for you to handle, and I'm just going to raise it with

you and then let you handle it, is to make sure that there


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isn't any such conflict, and that you determine that you can

receive and do receive an appropriate waiver. And then with

that, I'm perfectly happy, for reasons I think I've put on the

record, if you and Mr. Popolizio proceed in representing the

defendants in this matter.

MR. MASTERSON: Thank you, Judge.

THE COURT: Okay. Does that take care of 3.7 as far

as everyone else is concerned?

MR. MASTERSON: And the only thing I will reserve is I

understand plaintiffs are saying they're not calling us at this

point, and the Court's also indicated its opinions on the

issue. Should it become an issue later, we'll also raise the

fact that I don't think there are any contested issues that

will come to light during the testimony in this matter, and

also that there would certainly be a substantial hardship

should we have to --

THE COURT: And the only possibility for a contested

issue, and I think this is probably clear, is: Is there going

to be a contested issue about who was there as that relates to

any possible ruling on my part on whether or not there's an

attorney-client privilege with respect to the comments that

Sheriff Arpaio made as to which Mr. Casey and you have reserved

the privilege?

That seems to me to be the only possible contested

issue, and maybe that's not contested, either. But I just


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raise it now so we can get it out of the way.

MR. MASTERSON: I understand.

THE COURT: Okay.

MR. MASTERSON: Now, with respect to the other issue,

I think the Court -- plaintiffs just submitted transcripts, and

I think the Court's going to have to take a look at the

transcripts, because I think there is a question between the

witnesses of who the heck was on the phone, and I think that

does make a difference to the Court's determination.

THE COURT: I think so, too. Let me ask: Have we

arranged to depose Mr. Zullo or Mr. Mackiewicz any earlier than

we've already arranged to do this?

MS. WANG: They are scheduled to take place on October

7th, Your Honor, so there's --

THE COURT: So do I need to wait until after we've had

those depositions before I make any ruling on this?

MR. MASTERSON: I certainly think it would help the

Court with its determinations on this particular issue.

THE COURT: Ms. Wang, I thought I heard you say that

you take the position that if I read these, I won't need to

wait for Zullo and Mackiewicz. Is that your position?

MS. WANG: That is our position, Your Honor, and

respectfully, we would request, if possible, a ruling on this

issue. This afternoon Sheriff Arpaio's deposition is scheduled

to continue at 1 o'clock this afternoon, and if we could get a


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ruling, then it could possibly avoid the need to reopen that

deposition as well, depending on the Court's ruling.

THE COURT: Mr. Masterson, you have a reaction on

that?

MR. MASTERSON: May I have one moment, Judge?

THE COURT: You may.

(Pause in proceedings.)

MR. MASTERSON: I guess my thought really hasn't

changed. I think the Court's going to have to hear all the

testimony -- or read all the testimony, I guess -- to make a

determination on what all these witnesses have to say. I mean,

already we have conflicts, and as the Court recognized, that's

to be expected. But I don't see that you can rule with limited

information when there's more information to come.


MS. WANG: Your Honor, we believe that you can rule,

and that is because there are two reasons this January 2nd

meeting was not privileged. The first depends on who was

present at the meeting; the second does not.

The second argument that we've made is that the

privilege was waived because Sergeant Anglin testified in some

detail about the subject matter of this meeting and what

occurred during the meeting, and he actually has very clear

testimony on who exactly was present.

So we believe that the transcript of the Anglin


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deposition alone is sufficient for the Court to rule that any

privilege was waived because of his testimony.

THE COURT: Who was representing the defendants at the

Anglin deposition?

MS. WANG: Mr. Masterson.

THE COURT: Do you have a position with respect that,

Mr. Masterson?

MR. MASTERSON: My position, Judge, is take a look at

it, and if you think there's a waiver, then you can rule on it

after you're done reading it.

THE COURT: Okay.

MR. MASTERSON: But if the issue is who was on the

phone, then I think the Court needs to hear all the

testimony -- or read all the testimony.

THE COURT: I would agree. If it comes down to who

was on the phone or who was present at the meeting, I think I

need to wait and hear all the testimony. If I look at what

Mr. Anglin said and I think there's a subject-matter waiver,

then I think that's a different consideration, isn't it?

MR. MASTERSON: I think you're correct.

THE COURT: I think I've also had, with the briefing

with respect to past waivers and the waiver I just have --

waiver I've just ruled on, I think I have all the applicable

law pertaining to waiver.

Are you uncomfortable that there's some law that you


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haven't already briefed for me on that topic?

MR. MASTERSON: If you don't have it all, you're darn

close.

THE COURT: Do I have everything you'd like me to

consider?

MR. MASTERSON: Yes, sir.

THE COURT: All right. Thank you. Here's what I'll

do. Let's proceed and handle all the other issues that I have

and that you have, and then I'll do my best to read the Anglin

deposition and tell you my thoughts. If you want to wait

around you can wait around, but I'm not going to let you wait

around in here; I will let you know as soon as I know.

There is, apparently, a deposition of Ms. Stutz on

Monday. I'm not available. The parties, at the --

MS. WANG: Your Honor, actually, that deposition is

ongoing. Some of the attorneys who are on the phone are at

that deposition.

THE COURT: Oh, really.

MS. WANG: Yes.

THE COURT: Somebody wanted a magistrate judge to be

available for a Monday afternoon deposition beginning at

1 o'clock.

I think that was you, Mr. Woods, wasn't it?

MR. WOODS: The 1 o'clock deposition beginning on

Monday is the Liddy deposition, Your Honor, and we've had --


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MR. WOODS: We're just started now into the Stutz

deposition, and we've had quite a bit of conversation

reflecting on the Liddy deposition.

And candidly, Your Honor, I don't see how we will get

through either of these depositions without judicial

supervision, primarily because of the 1.6 issues.

THE COURT: All right. Well, I think you indicated to

me you wanted a magistrate judge available at 1 o'clock on

Monday. I believe, because Magistrate Judge Boyle is most

familiar with this matter, he actually had a -- he had

something scheduled, but he has moved it off so that he can be

available 1 o'clock on Monday.

The parties all agreed -- at least at the deposition,

and I think everybody was represented there -- that Magistrate

Judge Boyle would be sufficient to handle any objections; and

you believed, I think you represented to me, Mr. Woods, that

after having heard my rulings as it pertained to Mr. Casey, you

wouldn't raise objections other than those that were pretty

much tailored to 1.6.

MR. WOODS: That's close to what I agreed to.

Obviously, Judge, I couldn't -- I can't waive all work product

and privilege, but I certainly have a great idea of what your

rulings would be, and therefore would be able to make

objections and instruct my witness to go ahead and answer.


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THE COURT: That is better said.

Now, I will be available here this afternoon, but I'm

not going to run down to your deposition. But I'm available

telephonically if you need to have me do something this

afternoon as you -- as you continue with Mr. Liddy.

MR. WOODS: No, it's Ms. Stutz today.

THE COURT: I'm sorry, with Ms. Stutz. Sorry, I'm

getting confused.

Mr. Liddy, you'll have Judge Boyle available.

Judge Boyle will come to where you are because he's a nicer guy

than I am, so if you will give me the address. And he would

also like to have a copy of the Casey transcript so that he can

review my rulings on the Casey transcript so that if other

matters come up, he has an idea what my rulings are, and he

would like that transcript as soon as possible.

MR. WOODS: Okay. Well, as far as the address is

concerned, Judge, it's 3033 North Central on the ground floor.

You can tell Judge Boyle if he enters the parking garage off of

Earl Drive, then he'll be a simple walk into the video

deposition place. It's called Legal Video.

As far as the transcript of the Casey deposition, I'm

going to step back and -- I haven't been ordering transcripts,

so what can we do to make sure he --

Is there one yet of the Casey deposition?

MS. WANG: Your Honor, plaintiffs have a final


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transcript and we can make that available.

How should we get that to Judge Boyle?

THE COURT: Just give it -- send it to his chambers as

early this afternoon as is possible.

MS. WANG: We'll do that.


MR. WOODS: Thank you very much, Judge. That's very

accommodating. Appreciate your help.

THE COURT: Sure.

All right. So it seems clear that we're going to have

to not begin on Tuesday because we're going to have depositions

rescheduled for Tuesday, is that correct?

MS. WANG: Your Honor, there's one -- generally, yes,

except that we did have an idea. We have not had a chance to

confer with Mr. Stein or defense counsel on this point.

Because of the Yom Kippur holiday, we had all agreed

that we would accommodate Mr. Stein and not call Chief Sheridan

on Wednesday. We wonder whether it would be possible to take

his deposition Wednesday -- on Wednesday and perhaps

Mr. Mitchell could stand in. That way, we could start --

sorry. I'm getting confused as well.

We would propose that we reopen the depositions on

Wednesday. That we start the hearing Tuesday with

Chief Sheridan's testimony, and then we'll take his reopened

deposition on the subject matter of the July 17th and 1500 IDs,


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and then we would continue with the testimony on Thursday.

MR. STEIN: This is Lee Stein. I'm not sure I quite

understood your suggestion. Tuesday for Chief Sheridan's

testimony for my purposes is fine. Wednesday, neither me nor

Mr. Mitchell are available; we will both be observing the

holiday.

MS. WANG: Oh. Then that doesn't fix the problem.

(Pause in proceedings.)

MS. WANG: Your Honor, we're prepared to go forward

with the reopened depositions on Tuesday and begin the hearing

Wednesday. That will be fine.

THE COURT: All right. Let me ask you: Do you have

witnesses that can go on Wednesday? Because it clearly cannot

be Chief Sheridan.

MS. WANG: Right. That's the question we were trying

to avoid having to answer. We're going to have to rearrange

because we had intended to call Chief Sheridan first. Our

order after that, as previously proposed to the defendants, and

we've sent out subpoenas, was that we would go next with

Chief Sands, then Mr. Casey, then Chief MacIntyre, Mr. Liddy,

Lieutenant Sousa, Mr. Seebert, Sheriff Arpaio, and then

Sergeant Knapp. We need to take Sergeant Knapp in the first

week at some point for scheduling reasons, and we'll have to

take him out of order, if necessary.

THE COURT: Okay.


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Any objection by any of the other parties to

proceeding in that fashion?

MS. WANG: Your Honor, I would just add that we were

trying to avoid changing the order. If we are going to start

the hearing on Wednesday and not calling Chief Sheridan, we may

need to change things around, given which attorneys on our team

are assigned to which witnesses, so I think we should confer

with defendants about this.


MR. MASTERSON: (Pointing to himself).

THE COURT: Yes.

MR. MASTERSON: Well, number 5 on my list of topics to

discuss with the Court today is a follow-up on what we talked

about last week, and the Court did indicate its position. But

I'm going to ask for a couple days to prepare, Judge. This

is --

THE COURT: Well, why don't we make this easier on

everybody.

MR. MASTERSON: Okay.

THE COURT: Do the depositions on Tuesday. You can

have Wednesday to prepare -- that was Yom Kippur. I shouldn't

have set Yom Kippur, anyway -- and we can begin on Thursday.

And that will give you a day to prepare and whatever time you

get on Tuesday.

That work for you?


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MR. MASTERSON: I'm going to ask for one more day,

just because I'm up here.

THE COURT: Nice try.

MR. MASTERSON: I suspected that might be the answer,

but --

THE COURT: We'll begin on Thursday, and you can make

whatever arrangements you need as it pertains to the reopened

depositions. And again, I will try to look at the --

And Ms. Wang, did you give -- I am sure you did, but

do you have copies of the excerpts of deposition that you've

given me and want me to read that you can give to the other

parties here while I go back and take a look at them?

MS. WANG: I do not even have a paper copy for myself,

so I apologize but I do not.

THE COURT: All right. Well, let me think about that

later.

Are there any issues, then, as its relates to the

status of --

Oh, Ms. Clark. You want to approach a microphone?

MS. CLARK: Thank you, Judge.

Just briefly, as to the witnesses that Ms. Wang has

outlined for the hearing, I just wanted to make a record that

Mr. Casey was deposed for I think it was almost 10 hours on

Wednesday and I hear that the transcript has been filed. And

these are his former clients, Sheriff Arpaio and the Maricopa


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County Sheriff's Office, and we would ask that his deposition

be his testimony for trial and that he not be called as a live

witness.

THE COURT: Overruled. Thank you.

I do believe that everyone here is entitled to have

Mr. Casey's deposition and the opportunity to examine and

cross-examine him, and so you can issue your subpoena. I

appreciate and understand the difficulty that it's caused to

Mr. Casey, but I believe that his presence is needed.

Have we been able to arrive at any stipulations based

on the responses to requests for admission?

MS. WANG: No, Your Honor.


Did you get the LEAR protocol?

MS. WANG: Your Honor, the outcome of the LEAR

protocol issue is that defendants have produced the same

version to which Sergeant Palmer testified in 2010. They have

represented that that is the last version.

THE COURT: All right. So we're through with that.

MS. WANG: I believe so. We've done what we can.

THE COURT: I again think this will not be news to the

parties because we did discuss it with all parties at the

deposition, at least informally, but here's how I intend to

proceed. All fact issues, all fact testimony, I intend to take

on the days that we set out and are holding available in


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seriatim starting on Thursday.

If you've got facts that relate to -- I haven't yet

made a determination that remedies are available, but if you've

got facts that you think bear on remedies that somebody's going

to ask for, I want them in in this part of the hearing so that

we're going to deal with all facts.

Then I think, as I indicated to the parties, I'm going

to do my best to stay on top of the facts during the course of

the hearing. And then, if you'll give me a day or two, I'll

give you a day or two, I'm going to allow you to make sort of a

closing argument on factual issues that will highlight, in

light of the facts as you see them, what remedy issues there

may be remaining.

As I believe I shared with the group, I'm not sure

that all remedies issues will relate to the experts' testimony

at all; they may just be what I think. But there has been a

request for an expert that I've granted on both sides that

relates to the adequacy of Internal Affairs investigations.

If you give me those two days and I give you those two

days, or we can decide it later, you can make your argument.

Then I can determine and provide guidance about what issues, if

any, related to the adequacy of internal investigations would

be an aid to me as the trier-of-fact so that we don't have

experts running off sort of untethered to issues that are not

going to be helpful to me and just waste more time.


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I can then determine whether or not we need the

experts. If we do, we'll have them, fairly expeditiously.

We'll give you a chance to depose them and I'll hear them, and

then I'll issue my findings, my final findings of fact and

rulings of law.

In connection with that discussion, I discussed with

everybody, and including Mr. Masterson, that last week he

basically wanted me to -- or he wanted the plaintiffs to

indicate which of the approximately 1500 IDs the plaintiffs

wanted them to do the Internal Affairs investigation on. And I

did indicate that because part of evaluating an

Internal Affairs investigation is determining what you

investigate and what you don't investigate, that would be up to

them to decide.

But as I thought about it during the week, the monitor

had indicated to me when he took possession -- or when the

marshals took possession, that he had done his best to tally

those identifications that he thought were members of the

plaintiff class, that I was willing to instruct the monitor to

give those identifications to Mr. Masterson at least as a

starting point, and I raised that with all parties; everybody

seemed to be okay with that.

Has there been any change of mind on that?

MR. MASTERSON: No change here.



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THE COURT: All right. So Chief Girvin, Chief

Martinez, are you going to have any problem giving the tally

that you have compiled to all parties and specially appearing

nonparties?

CHIEF MARTINEZ: No, Your Honor. This is

Chief Martinez. We will be glad to give them a percentage

breakdown of those so-called 1500 as to how many were Hispanic,

or appear to be Hispanic, and how many were not.


I think as I also indicated in the Wednesday

deposition, I anticipate that such an adequate Internal Affairs

investigation would take some time, and I'm not sure that I

have any intention of waiting for the end of that

investigation. I'm not sure that we'll need to wait for the

end of that investigation. And there's always a possibility

that additional identifications will still come forth; some

additional identifications came forth after the 1500.

While those, it seems to me, are still subject to the

monitor's review for adequacy, that is in the normal function

of the monitor reviewing for adequacy and doesn't necessarily

require me to wait for the end of the investigation before I do

a ruling. If, after the presentation of all of the evidence, I

feel differently, I'll discuss that with the parties before we

indicate anything differently.

Any concerns about proceeding in that way?


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MR. MASTERSON: I'm not sure I have a concern about

it, Judge; I'm just a little unclear. The monitor --

THE COURT: Well, that's understandable, because I'm

not sure that I have a very solid idea; I'm just throwing out

what I would propose. So if you have concerns, raise them.

MR. MASTERSON: The monitor is, as I understand, going

to be preparing a report on internal investigations, and I

think the monitor told us a few weeks ago that that report's

going to be done sometime in early October.

THE COURT: Well, he told you that before he was aware

whether or not there was even an investigation as it pertained

to the 1500, as I recall. And it seems to me that it's going

to depend a little bit -- and maybe, you know, you're right.

Let me tell you what -- and I don't have a huge

understanding, but let me tell you what my understanding is

that the monitor has been in the process of doing for several

months that we've all been referring to as "the report." And

that is as he received these report -- and I may be wrong, so

don't hold me to this, but it's my understanding that as PSB

division would open and then close separate internal

administrative investigative files, the monitor did an

evaluation of each of those files in terms of the process and

the adequacy of the investigation as it relates to those files.

Does that help you?


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MR. MASTERSON: It does, but I guess I have another

question, in that I'm not certain to what extent the Court is

going to rely upon these results, reports, or opinions and

conclusions of the monitor in moving forward with either

factual decisions or remedies.

THE COURT: I get it. And it's one of the things that

I tried to say on Wednesday, and I wasn't very articulate

because we were just coming up with all this, but I'm not sure

how much of that will be relevant to me after the hearing's

over. It may be; it may not be. It's one of the reasons why I

think we ought to wait until the hearing's over and I can say,

You know, this really isn't all that important to me in terms

of the injunctive relief or not -- you know, if I determine

that remedies are appropriate, it depends on which -- you know,

where I find deficiencies and where remedies are appropriate.

And it seems to me it's pointless to have your expert, the

Department of Justice expert, or the monitor spend additional

time if none of that's going to be relevant.

The other reality is there may be other issues that

are collateral to those investigations that may be important to

me at that time. And if they are, then I'll tell you all at

the same time, including the monitor, and we can decide whether

we just want to have the monitor do his own report on those

separate issues or, since you've both engaged experts, whether

or not we just want to let the experts do their own reports on


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those supplemental issues and then I'll make a ruling.

MR. MASTERSON: Here's a problem I see, and it is

going to occur during the fact presentation over -- up on

through I think November 6th is our last day.

THE COURT: Well, I'm hoping we won't go that far.

MR. MASTERSON: I understand. The last day we

reserved.

THE COURT: Yeah.

MR. MASTERSON: And that is, the evidence we may wish

to offer -- and I'm just going to throw an example out there.

Let's say that the plaintiffs get up here and throw some

evidence at you involving five separate IA investigations and

argue to you -- or at the end would argue to you that they were

insufficient and they want additional remedies based upon the

insufficiency of those IA investigations.

If that were their offer, I might want to throw up

evidence of 600 more that they don't dispute to show, Hey, look

at all these other IA investigations we're doing the monitors

haven't criticized, so that outweighs their five. So unless we

have conclusions, I guess, from the monitors, I'm uncertain

what evidence to try to put before you on these issues.

THE COURT: How about we do it this way, then. When

we get to the end, based on the evidence that the plaintiffs

are going to present, if in fact you believe that there may be

additional evidence related to remedies that I might choose --


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I might indicate are necessary, you can try and convince me to

reopen and reconsider additional supplemental facts related to

defined issues that interest me on the remedies issues.

Do you understand what I'm saying?

MR. MASTERSON: I do.

THE COURT: Is that acceptable?

MR. MASTERSON: Fair enough.


MS. WANG: Your Honor, I just -- I'm sorry, was Mr. --

Are you done?

I just wanted to point out that the defendants have

made a production of a limited universe of Internal Affairs

investigation files to us --

THE COURT: Um-hum.

MS. WANG: -- and so I believe that that's the

universe of evidence plaintiffs have had access to, and those

are the IA files that we intend to present evidence on.

If Mr. Masterson is suggesting that he is going to

introduce evidence at a hearing before the Court on other

Internal Affairs cases that we have not had access to, we would

object to that.

THE COURT: I understand, and that was my

understanding, that the -- and it's been the order of the Court

that the MCSO has had to identify and produce -- identify

particular investigations, disclose them to the Court, and then


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the monitor has been reviewing those specific investigations.

But as you say that, just so nobody's hiding the ball,

it may be, for example, with respect to the driver's license

issue, I don't know how many, if any, of those internal

investigations relate to driver's licenses issues. But when we

get to the end of this hearing, if I determine that the

Internal Affairs division only investigated five or six

officers for taking driver's licenses and there is evidence

that there is lots of officers who took driver's licenses, it

may be that I'll feel like I need additional comment on whether

or not those investigations are adequate, or it may be that I

don't think that; that I've already been able to determine that

I can make that determination.

If I determine that I want an opinion on that from,

say, the experts, then I'm not sure that I can't allow

Mr. Masterson to make a case, depending upon what the experts

say -- and I have no intention of letting this get out of

control, I assure you. But I'm not going to completely

preclude Mr. Masterson from trying to introduce relevant

evidence if I pose a -- if I feel like I need to pose a

question like that for the experts to opine on.

Everybody clear on that?

MS. WANG: Yes, Your Honor. And as long as plaintiffs

would receive

Documents

Melendres v. Arpaio #1381 Sept 18 2015 TRANSCRIPT - Status Conference