Melendres v. Arpaio #1547 Nov 9 2015 TRANSCRIPT - Status Conference

8/20/2019 Melendres v. Arpaio #1547 Nov 9 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.

)))))))))))

No. CV 07-2513-PHX-GMS

Phoenix, ArizonaNovember 9, 20153:33 p.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Telephonic 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

Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 1 of 31


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A P P E A R A N C E S

For the Plaintiffs:Covington & Burling, LLPBy: Stanley Young, Esq.By: Michelle L. Morin, Esq.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

For the Defendant Maricopa County:Walker & Peskind, PLLCBy: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq.SGA Corporate Center16100 N. 7th Street, Suite 140

Phoenix, Arizona 85254

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

Jones, Skelton & Hochuli, PLCBy: John T. Masterson, Esq.By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800Phoenix, Arizona 85012

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

By: Paul Killebrew, Esq.950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530

U.S. Department of Justice - Civil Rights DivisionBy: Maureen Johnston, Esq.601 D. Street NW, #5011Washington, D.C. 20004

For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLPBy: M. Craig Murdy, Esq.2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012



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P R O C E E D I N G S

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

Melendres, et al., v. Arpaio, et al., on for telephonic

conference.

Counsel, please announce your appearances.

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

and Michelle Morin, Covington & Burling, for plaintiffs.

MR. KILLEBREW: Good afternoon, Your Honor. Paul

Killebrew and Maureen Johnston for plaintiff intervenors United

States.

MR. MASTERSON: Good afternoon, Judge Snow. John

Masterson, Joe Popolizio for Sheriff Arpaio and the individual

alleged contemnors.

MR. WALKER: Good afternoon, Your Honor. Richard

Walker and Charles Jirauch for Maricopa County.

THE COURT: Do we have anybody representing Chief

Sands? Where's Mr. Murdy?

MR. YOUNG: Your Honor, I did include Mr. Murdy and

Mr. Dodd on the e-mail. I do know that they waived their

appearance at most of Mr. Zullo's deposition, which is the

primary topic of this call, so it may be that they've chosen

not to attend, and at least the issues as to Mr. Zullo I don't

think affect former Chief Sands.

THE COURT: Does anybody else want to be heard on



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that?

Well, can I have -- can I proceed without all the

parties, or a representation from one of the parties that they

don't have any interest in this subject matter?

MR. YOUNG: Your Honor, this is Stanley Young. I

don't think that the issue as to Mr. Zullo affects Chief Sands.

And I say I don't think because it does affect, possibly,

schedule. And there is actually another issue relating to the

County's proposed witness and an exhibit, which we may raise as

well, which I suppose might affect them, so I can't make a

blanket representation on that.

It might be that we can discuss something this

afternoon that could help us plan the next few days, but that

it might need to be reconfirmed tomorrow morning when Chief

Sands' lawyer is present.

THE COURT: Does anybody object if we proceed a little

bit to see whether I think we can do tentative discussions, in

light of the nonappearance of Mr. Murdy?

MR. JIRAUCH: Your Honor, this is Charles Jirauch.

The County does not have a position on this, but I would make

an observation. One of the issues that we will be discussing

is there are certain audiotapes that were presented at the

deposition of Mr. Zullo today, and then portions were played as

part of the deposition. For instance, there are references, I

believe, to two audiotapes that were in excess of an hour each,



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and only a few minutes were played.

I understand, from conversations we had after the

deposition, that the plaintiffs are going to request the Court

to allow the entire audiotapes to be put into the record based

upon the playing of just a few minutes of it. These are tapes

that were produced for the very first time last Friday from

Mr. Zullo.

The County has never seen them. I suspect Detective

or Captain Sands' attorneys had not, either. So it's hard to

say whether anything we do today will not have an impact on

him, because we don't know what's in the 57 minutes of each of

these tapes that weren't played, and that plaintiffs would like

to put into evidence. So we're all sort of shooting in the

dark here.

THE COURT: All right. Well, it sounds to me like --

do you want to explain that any further, Mr. Young, before I

decide whether I can hear anything about that in the absence of

Chief Sands' attorneys?

MR. YOUNG: Yes. Well, we did have CDs with the

entireties of those conversations, those recordings available.

I think by the time we got to that part of the deposition,

Mr. Dodd had left, and Mr. Murdy had left prior to that.

So it may be that you wouldn't be able to decide the

entire issue. We would, obviously, if we plan to introduce the

entireties of those recordings -- and I don't know that we've



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reached the final conclusion in that regard yet; there's still

some further work on that. It may well be that as to some of

them we would move the introduction of the entirety. If we did

that, I think we would play the entirety in court.

The reason we thought it -- or I thought it, anyway,

it might be helpful to have the conversation today is that it

would allow us to tell Mr. Zullo what we're going to do with

him tomorrow.

We did take a deposition. It lasted for about three

hours. Mr. Zullo, with one or two exceptions, which may or may

not have been inadvertent, took the Fifth Amendment with

respect to every question, and that included many questions

about documents; it included questions about five audio

recordings which were provided to us on Friday.

It would be plaintiffs' proposal that we could simply

introduce the deposition testimony, or portions of the

deposition testimony, in order to allow the Court to draw

inferences that would allow the e-mails and the recordings to

be put into evidence.

Those e-mails are to or from Mr. Zullo, mostly

involving Mr. Montgomery. I don't really think there's any

dispute as to the e-mail addresses or, frankly, to the

authenticity of the documents. I think if he were to answer

questions that Mr. Zullo, you know, would say that those

documents are authentic. The audio recordings are almost



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self-authenticating, and I think that Mr. Zullo's refusals to

answer based on Fifth Amendment would allow inferences that

would allow those documents also to get into evidence.

The transcript itself seems to me to be something that

would be admissible as prior testimony. And given the fact

that he's unavailable because of his invocation of the Fifth

Amendment, those would be -- that testimony -- those portions

of it that we would introduce would be admissible. Rule

32(a)(4)(E) also provides a basis for that.

And I suppose the purpose of the call would be to seek

the Court's guidance. I know the Court earlier stated that he

might not compel Mr. Zullo to answer each -- you know, to

invoke as to each and every question. We do have a long record

now of a number of questions that relate to documents that we

would want to introduce. There are other invocations of the

Fifth Amendment on other questions as to which I'm sure we'll

have a chance to argue later on as to inferences.

But our proposal would be to put those in to the Court

in order to get the documents and the audio introduced, and put

more of it in in order to provide the Court with those refusals

to answer as to matters other than documents and audio

recordings.

I did discuss this issue briefly with Mr. Masterson

earlier today, and also Mr. Jirauch, and it may well be that

they would want to have more of a chance to review the



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documents. I think Mr. Jirauch and the County may not have had

them -- well, they probably did not have them before today,

and -- some of them, anyway -- and as to Mr. Masterson, his

firm may have had them for longer than we have, but it may be

that they'll want a chance to review those, too.

So it may be that there's -- if there's room for a

stipulation, we may or may not be in a position to reach that

today, but I thought it would be helpful to get the Court's

guidance as to how it would proceed on the general issue of

whether the deposition transcript by itself would suffice, or

whether we should tell Mr. Zullo that he should appear in

person.

THE COURT: Well, it seems to me that that is an issue

about which I'm going to have to have all parties present if

the other --

Did somebody just join the call? Who just joined the

call?

MR. MURDY: Craig Murdy, Your Honor. Sorry I'm late.

THE COURT: All right. Mr. Murdy, you're here

representing Chief Sands?

MR. MURDY: Correct.

THE COURT: All right. Do you want to restate

everything, please, Mr. Young?

MR. YOUNG: Yes. Hi, Mr. Murdy.

So I think, Mr. Murdy, you were part of the deposition



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earlier today, and Mr. Dodd came in for a while as well,

that -- let me recap our proposal here.

With all but one or two exceptions, Mr. Zullo invoked

the Fifth Amendment and refused to answer questions. Many of

those questions related to documents as to which we believe

there should be really no genuine dispute as to their

authenticity or provenance.

There were also questions about five audio recordings,

some of which were played in part. Well, actually, as to each

one, I guess; all of them were played in part. I'm not sure --

I don't think we played any of them in its entirety.

But our proposal or thought as to all of those

documents and recordings is that Mr. Zullo's invocation of the

Fifth Amendment would suffice to provide inferences that would

allow those documents to be admitted in evidence in this

proceeding.

And we raise the issue now so that we can tell

Mr. Zullo whether we need him to come. He is prepared to

attend tomorrow afternoon, I think, after Captain Skinner's

testimony is completed. But I know the Court earlier indicated

that it might not require him to actually invoke the Fifth on

the stand as to each and every question. It's our belief for

plaintiffs that the deposition testimony, which we believe

could be admitted as an exception to the hearsay rule or under

a section of Rule 32, and that would suffice to get the



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documents in.

There are other questions that Mr. Zullo refused to

answer, invoking the Fifth Amendment, which would provide, we

believe, a basis for making inferences on other issues other

than the admission of exhibits. And we can argue about that

later, but obviously, for the purposes of this week, we need to

have, I guess, answers as to the documents and audio

recordings.

I think Mr. Jirauch raised an issue, Mr. Murdy, that

not all of the sound recordings were played in their entirety.

And as I expressed earlier, to the extent we move for the

admission of an entire recording, we would obviously play that

entire recording in court.

MR. MURDY: And is everybody else -- is everybody else

on the line, and what positions have they taken?

THE COURT: Was that Mr. Murdy? Because when you're

on the line, when you're appearing telephonically, you need to

identify yourself before you speak, please.

MR. MURDY: I'm sorry, Your Honor. That was Craig

Murdy on behalf of Chief Sands. I was just trying to find out

who else was on the line and what position they've taken so

far.

MR. JIRAUCH: Counsel for the County, Mr. Walker and

myself, Chuck Jirauch, are on the line. I made an earlier

observation but haven't taken a position yet. The County's



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position will be that Mr. Zullo will need to appear to testify

about these materials, and I can explain why to the Court at an

appropriate time.

THE COURT: All right. Go ahead, Mr. Jirauch.

MR. JIRAUCH: Your Honor, the problem with -- and I'm

going to speak principally to the audio recordings. I think

Mr. Young may have underspoke when he said that not all of the

recordings were presented during the deposition. In fact, I

would suspect that less than 5 percent of it was presented.

And in that recording it is impossible to determine

who's speaking. There are multiple parties present. No one

was advised that Mr. Zullo was taping the conversations. So

it's -- when asked who was speaking, he again took the Fifth

Amendment. The only thing that we've got that identifies who's

even present are Mr. Young asking questions on the assumption

that certain people are there, without testimony to support

that.

There are also concerns about the material having

privileged, confidential information. There are police

officers, law enforcement officers involved in some of the

conversations, so we don't know what's in the material that may

deal with law enforcement investigations that are ongoing.

There are questions we simply don't have answers to.

The County, like the plaintiffs, didn't get these

materials -- well, actually, we got them in the deposition.



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I've spoken to the people in our office. None of this, either

the written exhibits or the tape recordings, have been provided

to us. So all we've got is what was given to us during the

deposition.

We don't know if there are other tape recordings that

may be relevant to the various issues. It's not that the

County has a position, necessarily, on the propriety of this

material; we simply aren't in a position to know what's there.

I will observe, however, that it's clear that much of

the material, not all of it, is hearsay, maybe hearsay upon

hearsay; hearsay upon hearsay upon hearsay. People surmising

what people are saying with an inability to determine who's

even talking. The recordings are not the best.

So there are substantive issues that are significant,

particularly when you've got a witness who won't testify as to

the substance of it. So all we've got is Mr. Young's

observations as to what he thinks they relate to. And

candidly, much of the information on there is likely to be

irrelevant.

We simply don't have time to come to -- to review this

material and have conclusions as to what's proper and not. As

a consequence, we believe Mr. Zullo needs to come and be

prepared to testify about it.

And certainly, Mr. Young has not given us any legal

authority for the suggestion that this material is admissible



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questioning by the parties during trial.

So I guess that's about all I have to say. I mean, I

am -- I do have a concern that people are saying they don't

have the information that Mr. Zullo was talking about or the

documents Mr. Young provided to Mr. Zullo this morning.

I'm looking at an e-mail from Friday at 4:51 p.m. --

THE COURT: Do you know what? I can't -- you're

starting to fade, Mr. Masterson. I can't hear you.

MR. MASTERSON: I was looking at my screen.

I'm looking at an e-mail from Friday at 4:51 p.m.

where the parties were given all the documents that were sent

out to plaintiffs, so that should have all the Zullo documents

contained in that e-mail.

THE COURT: To plaintiffs and other parties or just to

plaintiffs, Mr. Masterson?

MR. MASTERSON: I see -- let's see here. Ms. Wang,

Mr. Young, Mr. Murdy, Ms. Iafrate, Mr. Walker, Mr. Jirauch,

Mr. Dodd, Mr. Killebrew, Ms. Coe, and Mr. Zullo.

THE COURT: All right. So it would appear that all

the documents were sent out on Friday afternoon to all parties.

MR. JIRAUCH: May I ask a question of John Masterson?

THE COURT: I'm sorry, what? As I've indicated now

several times, if you're going to speak up, you need to

identify who you are, please.

MR. JIRAUCH: I apologize, Your Honor. This is Chuck



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Jirauch. I was just going to ask John whether or not that

e-mail -- because I just went through my e-mails and I

apparently didn't get it -- whether that included the

audiotapes.

MR. MASTERSON: Yeah, I guess -- I don't really know

how this works, I will tell everybody up front that. This is

Masterson. I think they went into Dropbox, and the heading I'm

seeing is Zullo 005, Zullo 006, Zullo 007, and then there's a

link to each one of those, which I understand is a Dropbox that

contains all of that information.

THE COURT: Mr. Masterson, let me ask you another

question that is more related to scheduling than it is to the

substantive question of whether or not we're going to have to

have Mr. Zullo testify.

Is Chief Deputy Sheridan doing well enough that we

could have him begin testimony after the testimony of

Captain Skinner?

MR. MASTERSON: I can answer it this way. First off,

Chief Sheridan is doing quite well. And in fact, I've met with

him now and he is up and about and I discussed that with

Mr. Young this morning.

The answer to your question about testifying as soon

as Captain Skinner is done, the answer to that is no. And

unfortunately, he's going in tomorrow for -- under general

anesthesia one more time -- well, I don't know if one more



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time, but again for more injections.

But I've met with him, I've talked to him, he's up and

about now, so unless something goes wrong tomorrow, he's going

to be ready to testify.

THE COURT: Well, it seems to me, Mr. Young, that

while things may be clear to you, since you were present

throughout the deposition, things aren't clear enough to me to

determine that Mr. Zullo can be excused from attending the

trial.

It does seem to me that -- you know, I have indicated

before I don't want to have Mr. Zullo standing up here invoking

the Fifth as to every question if there's no purpose to it. If

you believe that an adverse inference can be drawn sufficient

to admit documentary evidence, that may be a different

question. But it will depend, of course, on the nature of the

question and whether or not an inference is fair under the

circumstances.

So I guess I'd have to see the question and determine

that hearsay was admissible. And to do that, we would have to

have the stipulation by all parties in order to convenience

Mr. Zullo, and it doesn't sound like we're going to get that.

So in answer to your question --

MR. YOUNG: This is Stanley Young, Your Honor. I

understand that. Things are clearer now, based on what I've

heard in this conference, than they were earlier today. So I



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think what we will do is tell Mr. Zullo that he should come to

court tomorrow and we will do that examination.

There are a couple of things that I should note. One,

a change in our time estimate for Mr. Zullo. Based on the

documents we received on Friday, I think we estimated two and a

half hours earlier; it might be closer to four hours at this

point for our direct examination, and the audio, actually, is

part of that.

The other thing I suppose I should say at this point

is that our belief is that Sheriff Arpaio is on some of those

audios. And it may well be that we would call him back, you

know. If there's really an objection as to voice

identification, at least as to those audio recordings, we would

certainly call him back, and we reserve the right to do that

based on subsequent discovery.

So we will plan to do that. I did tell Mr. Zullo we

would let him know, since I believe that after Captain Skinner

finished tomorrow that that might be the time, based on what

Chief Sheridan is doing tomorrow, so we will go ahead and do

that.

THE COURT: All right. Now, my advice would be, just

out of -- I guess it's more than my advice; it's an order. I

would order the parties to review the documents and determine

whether there's any that can be stipulated to, A; B, if there

are not any that can be stipulated to, absent whatever



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evidentiary and foundational basis that Mr. Young is going to

put forward, I would take a look, Mr. Young, to see -- to

provide me with authority, and Mr. Masterson, Mr. Jirauch,

Mr. Murdy, contrary authority to allowing inferences that would

admit evidence.

And then if that is met, whether or not there can be

stipulations. And if not, let us pare down the exhibits to

which -- or the exhibits or evidence that you believe may

require recalling witnesses so that we can focus on whether or

not there is a basis for such recall. And maybe if you can

work on that and simplify it prior to tomorrow, that would be

helpful to all of us. And if you can't simplify, you'll know

that you can't simplify, and away we'll go.

MR. JIRAUCH: Your Honor, Charles Jirauch. I have a

related issue that would, I think, save us all a lot of time

and a lot of heartache and argument in court, and that is if

plaintiffs could identify from each of the tape recordings by

the end of the day or first thing in the morning, so we have a

chance to look at what they intend to introduce.

We've now got over three hours of this material, and

there's no way that we could digest that sufficiently so that

we could make objections and protect the interest of our

clients if we don't know which parts they're going to offer

into evidence.

THE COURT: Well, it sounds to me like you've had the



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material as long as they have, Mr. Jirauch, is that correct?

MR. JIRAUCH: Well, Your Honor, I have to tell you,

I've looked at my e-mails and I didn't get that. Based upon my

review of it, it appears Mr. Walker may have. But we had no

idea what it was and we got it late Friday. And we don't have

a thousand people to work on it like the Covington firm does,

and we had no knowledge that they were going to use it.

MR. YOUNG: Your Honor, this is Stanley Young. Just

to fill the picture out -- and we'll do our best. I understand

Mr. Jirauch's request. And certainly if we can be more

specific as to the five recordings that we did play parts of at

the deposition, we will do that.

There were many, many more hours of audio and video

that we did not play at the deposition and which I currently

believe we will not attempt to introduce. So, you know,

Mr. Jirauch, there are many more than what we went over, and I

won't address the thousands of people comment.

THE COURT: Well, do your best, Mr. Young. I found

Mr. Jirauch -- you know, I don't mean to cut off his

suggestion, but to the extent he suggests that they didn't have

it, they're Maricopa County. That is the defendant in this

action. They clearly had it to the extent -- well, I don't

know. I don't know that there's a distinction between

Mr. Masterson having it and Mr. Jirauch having it. Maybe there

is in this case.



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But in any event, if you can try and specify the

exhibits that you're interested in, Mr. Young, that's what

Mr. Jirauch wants. In light of the fact that you're going to

have to start playing it tomorrow, it's not an unreasonable

request to the extent that you can get your arms around that

and communicate it to the parties.

MR. YOUNG: We will do our best, Your Honor.

I would note that, you know, most of the voices

involved are either Mr. Zullo or I believe Mr. Mackiewicz, or

the sheriff. There is one recording involving a witness who

will not be appearing, but I don't think there should be a

dispute over who that is, and that's Timothy Blixseth.

THE COURT: Well, I mean, to the extent that you don't

believe there's going to be a dispute, that's helpful now. But

if there is an actual dispute, there's going to be an actual

dispute, and it won't come in absent some sort of foundation or

inference sufficient to bring it in, so you better think about

those things.

MR. YOUNG: Understood, Your Honor. And that's why --

you know, it may be that we will -- and actually, I should add

to the list. We may recall Sheriff Arpaio, we may recall

Detective Mackiewicz, in order to lay that foundation and get

those recordings into evidence.

THE COURT: All right.

MR. JIRAUCH: Your Honor, Chuck Jirauch again. Two



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comments. First of all, as to the written exhibits, I suspect

that we'll be able to resolve that very easily this afternoon,

and I suspect that there won't be any major dispute as to the

vast majority of those, if any.

I would suggest that it may be a prudent thing to do

in this case with respect to the tape recordings, because of

the number of them, and the lack of notice on our part that

they were going to be used and now offered into evidence, that

if possible, we postpone Mr. Zullo until later in the week or

when we reconvene.

THE COURT: Well, that's why I was trying to get Chief

Deputy Sheridan in, but apparently we can't get Chief Deputy

Sheridan in.

Can we replace him with somebody else who will testify

similarly, Mr. Masterson?

MR. MASTERSON: Judge, this is John Masterson. And

I'm glad you brought that up, because I was going to bring this

up, which may be good news, but I don't want to -- I don't want

raise false hopes here.

Over the weekend I have thought long and hard. I've

examined testimony of Chief Sheridan from the April hearing,

from our hearing that we've been going through the last month

and a half, and I also looked at the transcripts regarding the

Court's statements on Chief Sheridan's testimony and am

considering not calling him.



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Now, I don't want to get everybody's hopes up because

I still may, but the -- I kind of reached a tentative decision

that whether I call him may well depend on what Mr. Zullo had

to say or what Mr. Zullo testifies about during -- well, if he

testifies.

So I'm not sure we would need to call a substitute

witness, or even call Chief Sheridan at this point, based upon

what I've read in the transcript of Chief Sheridan's prior

testimony, and then the Court's statements concerning Chief

Sheridan's proposed or upcoming testimony.

So I wanted to raise that so everyone knows that's

my -- that's my line of thought at this point.

THE COURT: All right. Well, I take it your answer

would be you don't know whether you're going to call anybody,

but you don't have any replacement testimony as a result of the

fact that you may not call anybody in the first place.

MR. MASTERSON: Well, here -- yeah. I mean, I wish I

could -- I wish I could make it more clear, Judge, but I really

can't. Depending upon the testimony of Mr. Zullo, or what

inferences the Court may rule are appropriate in the case, I

would call Chief Sheridan to testify based upon Zullo testimony

or inferences.

But at this point I don't see going forward with the

originally intended areas that I was originally intending to go

over with Chief Sheridan and have discussed with the Court,



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because I've gone through the testimony and I've gone through

the Court's statements concerning that, and I think we'd

have -- we may well have redundancy, which I want to avoid.

THE COURT: Okay.

MR. MASTERSON: So that's about as much as I can tell

you at this point.

THE COURT: Well, of course, I want to be reasonable

in dealing with your testimony, Mr. Masterson, but we're going

to approach a point pretty quickly where you're going to need

to make a decision one way or another. I'm sure you realize

that.

MR. MASTERSON: Oh, I understand that, Judge. I'm

just trying to -- I didn't want to spring any surprises. And

I'm hopeful that what we're doing here is shortening the

proceeding.

THE COURT: All right. Well, it doesn't sound like we

can accomplish much else here this afternoon. You parties may

get together and stipulate to exhibits, you may figure out what

you're not going to stipulate to and what your position's going

to be as a result, Mr. Young, but it sounds to me like we need

to do all of those things.

MR. YOUNG: We will work on that and we'll have some

further conversations about those issues among the parties.

I do want to make it clear that as to the sound

recordings, we may well need to call Detective Mackiewicz back



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have to do later this week.

THE COURT: All right. Any response, Mr. Walker or

Mr. Jirauch, that you want to make right at the moment?

MR. WALKER: Yes, Your Honor. This is Richard Walker.

The document is simply a compilation of costs that

have been incurred by the County in relation to this matter.

We intend to offer it solely for purposes of the Court's

consideration in connection with a devising of an appropriate

remedy, if the Court deems a remedy be necessary.

The information in the document is -- it is a

compilation, but it's derived from all -- all from sources that

are accessible to the public. And it just simply shows what,

as of the date the document was created, which was just a few

days ago, the cumulative costs that have been incurred have

been with the breakout for, you know, categories of costs.

THE COURT: Well, it does seem to me like that may not

be particularly relevant to whether or not anybody who has been

a victim of the violation of my preliminary injunction is

entitled to relief.

I don't want to make a -- I don't want to make a

definitive ruling without giving you more opportunity to think

about that, but -- and I appreciate that this matter has been

expensive to the County. But I'm not sure whether that -- how

that is relevant to whether or not I order relief for members

of the plaintiff class whose rights have been violated by a



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violation of the preliminary injunction.

Can you explain that to me, or do you want to wait a

day or two? I'll give you a day or two.

MR. WALKER: Well, actually, I can respond now, Your

Honor. The document would not be offered for purposes of

suggesting that any alleged victims of violations of the

preliminary injunction not be accorded relief. As a matter of

fact, the negotiations, as we mentioned previously, on a victim

compensation program continue, and I think we're continuing to

make progress. And I think there's a -- there's a very good

likelihood that what we're going to be in a position to do

before very long is present the Court with a program that is

largely agreed to between the County and the plaintiffs.

There may well be a few issues as to which we'll have

to get the Court to make a determination where we're not able

to reach closure. But I think in most of its at least

broad-brush respects, we're on track to present to the Court a

program that we think is a sensible program to provide an

avenue for relief for anyone who has been adversely affected by

violations of the preliminary injunction.

So this goes more to any potential injunctive relief

and costs associated with injunctive relief, not to a program

for compensation of alleged victims.

THE COURT: Well, I guess I don't know that it's

helpful now, and I understand that you're sequestering out the



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alleged victims, but in terms of the future injunctive relief,

how that relates to any argument, you'll have to make it at

that -- I mean, you'll have to tell me how that is relevant,

too. And I'll let you do that.

Are you saying in terms of costs of having monitors

assume responsibilities, or something like that? And if that's

the case, then how would you expect the plaintiffs to be in a

condition at this point to validate those costs?

MR. WALKER: Well, I think the additional expansion of

the role of the monitor and costs associated with that would be

part of it. I think the -- what we would like to be in a

position to argue is that given the costs that have been

shouldered so far by the taxpayers of Maricopa County, that it

is important for the Court to take that into account in

fashioning relief, again, with the exception of the victims'

compensation scheme, and in recognizing that to the extent that

there has been contemptuous conduct, there is a point at which

it seems unfair to burden the taxpayers of this county with yet

more additional costs in what Your Honor has correctly observed

has already been a very expensive case.

THE COURT: Well, I'm not going to rule on that right

now, either, but I'd suggest that you consider with specificity

what that is relevant to and why it is not unfair to introduce

it over the objection of plaintiffs if they haven't had a

sufficient opportunity to look into the matter, and I'm not



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sure that I am willing to postpone this matter even further to

provide them that opportunity.

That being said, I am aware, at least generally, I

don't think the plaintiffs will contest that it costs money to

have a monitor, and that Maricopa County has spent some money

in the lawsuit that is not inconsiderable. And I believe that

the monitor's billings, at least their amount, are public

record, so I can't understand -- I'm not sure that I would

object to you submitting those monthly bills as a matter of my

judicial notice.

And you might consider that, Mr. Young, that it seems

to me that even though there has been some protection of some

of the details of the monitor's billing, there hasn't been any

protection of the amount of the monitor's billing, and that is

a matter of public record.

So I don't know what else may be involved other than

the monitor's billing, but certainly the monitor's billing I'm

willing to consider and take judicial notice of, it seems to

me. So you might consider --

MR. YOUNG: Your Honor, this is Stanley Young. We

certainly don't have any argument with that.

The document that Mr. Walker has very recently given

us is different from that, though, and we don't know what's in

there. And in any case, I'm not sure it's even relevant for

the purpose Mr. Walker describes, since it's only about the



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past and does not have any information about what any

particular future change to the injunction might cost.

So both on fairness grounds, notice grounds,

foundation grounds, and relevance grounds, we would object to

that document and ask for its exclusion.

THE COURT: All right. Well, why don't you see if you

can come up with something you can agree with, and if not, I 'll

deal with it as it comes up.

Before I let everybody go, I just need to check with

my staff for one moment and make sure I don't have additional

matters to raise.

(Pause in proceedings.)

THE COURT: You know, Mr. Young, my court reporter's

just asking, basically, do you have transcripts prepared of the

recordings that you're going to try to admit into evidence?

MR. YOUNG: We do not as of the moment, Your Honor.

THE COURT: Okay. Is it your anticipation, then, that

he would be taking down the text of these recordings?

MR. YOUNG: Well, that would be ideal. I suppose that

if we -- and I suppose we could work with the other parties to

develop transcripts, or just do -- have them prepared ourself.

But they are sound recordings -- excuse me -- involving in some

cases multiple parties, three or four parties, and currently we

do not have transcripts.

THE COURT: All right. Well, think about that, and it



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may be, even when transcripts are prepared, ofttimes the --

even assuming it's admitted into evidence, it's the recording

that is the evidence and not the transcript. So we'll see

where we go from there, and you might consider how and if

you're going to present those matters, and we will take this

all up in the morning.

MR. YOUNG: We will do that, Your Honor. Thank you.

THE COURT: Thank you all. We'll see you in the

morning.

(Proceedings concluded at 4:18 p.m.)



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31

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 November,

2015.

s/Gary Moll


Documents

Melendres v. Arpaio #1547 Nov 9 2015 TRANSCRIPT - Status Conference