Melendres v. Arpaio #1366 Sept 14 2015 TRANSCRIPT - Status Conference

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
Plaintiffs,
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vs.
Joseph M. Arpaio, et al.,

Defendants.
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(Telephonic Status Conference)
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Court Reporter:
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Phoenix, Arizona
September 14, 2015
1:52 p.m.
BEFORE THE HONORABLE G. MURRAY SNOW
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No. CV 07-2513-PHX-GMS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
A P P E A R A N C E S
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For the Plaintiffs:

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
39 Drumm Street
San Francisco, California 94111
Covington & Burling, LLP
By: Michelle L. Morin, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
By: Charles W. Jirauch, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
Iafrate & Associates
By: Michele M. Iafrate, Esq.
649 N. 2nd Avenue
Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
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For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
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For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.
P.O. Box 20527
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CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.
A P P E A R A N C E S
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For the Movants Maricopa County Attorney's Office and Maricopa

County Attorney William Montgomery:
Ridenour Hienton, PLLC
By: April M. Hamilton, Esq.
Chase Tower
For Deputy Chief Jack MacIntyre:
Dickinson Wright, PLLC
By: David J. Ouimette, Esq.
1850 North Central Avenue, Suite 1400
For Chief Deputy Gerard Sheridan:
Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq.
For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: Greg S. Como, Esq.
For Timothy J. Casey:
Adams & Clark, PC
By: Karen Clark, Esq.
520 E. Portland Street
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P R O C E E D I N G S
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THE COURT:
Please be seated.
THE CLERK:
This is CV 07-2513, Melendres, et al., v.
Arpaio, et al., on for a telephonic status conference.
MS. WANG:
Good afternoon, Your Honor.
Cecillia Wang
of the ACLU and Michelle Morin of Covington & Burling for
plaintiff.
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THE COURT:
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Good afternoon.
MS. IAFRATE:
13:52:49
Michele
Iafrate on behalf of Sheriff Arpaio.
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MR. WALKER:
Richard
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Walker and Charles Jirauch on behalf of Maricopa County as
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defined in previous appearances and filings with the Court.
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THE COURT:
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-- either appearing on behalf of Maricopa
County or you're not appearing on behalf of Maricopa County.

Which are you doing?
MR. WALKER:
Appearing on behalf of Maricopa County,
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THE COURT:
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MR. McDONALD:
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13:53:10
Your Honor.
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Yes, sir.
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THE COURT:
13:52:59
Mr. Walker, you're --
MR. WALKER:
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13:52:39
Counsel, please announce your appearances.
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Thank you.
Mel McDonald making a special
appearance on behalf of Sheriff Arpaio.
13:53:22
I am also covering for Lee Stein and Barry Mitchell,
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who are specially appearing for the -- the chief.
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Liddy.
MR. WOODS:
Terrence P. Woods for nonparties Stutz and
THE COURT:
Mr. Woods, I can hear by your tone of
voice that that's you, but as opposed to the other day, when we
couldn't do anything but hear you, now we cannot hear you at
all.
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Are you hearing me now, Your Honor?
THE COURT:
Not really.
MR. WOODS:
I'll tell you well, I'll try to scream if
13:53:59
I need to talk, and what I hope is that I won't have to talk.

THE COURT:
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All right.
I can barely hear you.
Anybody else?
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MR. OUIMETTE:
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MR. WOODS:
Yes, Your Honor.
David Ouimette,
MS. HAMILTON:
April Hamilton for the County
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Attorney's Office and Maricopa County Attorney William
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Montgomery.
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Greg Como on behalf of Brian Sands.
MR. POPOLIZIO:
Joe Popolizio on behalf of Sheriff
MR. KILLEBREW:
Paul Killebrew on behalf of the United
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Arpaio.
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MR. COMO:
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13:54:16
specially appearing for Deputy Chief MacIntyre.
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13:53:43
States as plaintiff intervenor.

MS. CLARK:
Karen Clark, ethics counsel for Tim Casey.
13:54:40
THE COURT:
Do we have anybody else?
All right.
(Off-the-record discussion between the Court and the
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court reporter.)
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MS. WANG:
Thank you, Your Honor.
THE COURT:
I'm sorry, Ms. Wang.
Before I allow you
to continue, we need to have whoever was appearing for Maricopa
County Attorney Bill Montgomery to restate clearly who they are
and who they're appearing for, because we didn't catch it here.

MS. HAMILTON:
I apologize, Your Honor.
This is April
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Hamilton on behalf of the County Attorney's Office and County
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Attorney William Montgomery.
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THE COURT:
MS. WANG:
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Thank you.
All right.
13:55:14
Ms. Wang.
Your Honor, we
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asked for this telephonic status conference because we have not
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gotten all of the documents from defendants, from Ms. Iafrate's
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office, that we believe the Court has ordered to be produced in
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its orders of September 10th and May 14th, 2015.
13:55:33
Defendants made two productions over the weekend: one
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on Saturday and one on Sunday.
At this point, we are left with
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four documents listed in the first four line items of the later
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privilege log, which unfortunately is labeled 9-11-15.
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attached that to my e-mail to the Court, and the file name
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actually reflects that it was a 9-13-15 privilege log.
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take issue with the last line in that log, which relates to
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attorney notes from Tim Casey.
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We also
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To give the Court a quick summary, it's plaintiffs'
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position that the Court's May 14th, 2015 order clearly found
that there has been a subject matter waiver as to matters
relating to the preliminary injunction order, one of the three
charged grounds of civil contempt.
13:56:44
At this point, defendants are still contending that
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client correspondence between Mr. Casey and defendants that
clearly relates to the preliminary injunction order should be
withheld.
We have also taken issue with the fact that we know
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of at least one set of notes by Mr. Casey relating to the
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preliminary injunction order that exists.
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indication that he attached those notes to one of his
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contemporaneous e-mails about the preliminary injunction order,
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and those have not been produced.
We have seen an
I sent Ms. Iafrate an e-mail yesterday asking her to
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explain why those documents are still being withheld, and we
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have not heard any response.
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documents produced immediately.
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on notice that at this point, with this pattern of violations
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of the Court's discovery orders, we do plan to seek sanctions.

THE COURT:
All right.
And we do want to put everyone
13:57:43
Let me make sure that I

I do have a
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document that is a two-page document entitled Defendant
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Arpaio's Privilege Log, 9-11-15.
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that page, if they are the same ones you're talking about,
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Plaintiffs seek to have those
understand the documents you're talking about.
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13:57:05
The first four documents on

13:58:03
relate to MELC1397334, 1397335, 1397336, CaseySub000166, and
then the notes that you say are the last thing identified on
that document are CaseySub000080.
Are those the documents we're talking about?
MS. WANG:
Yes, Your Honor.
We're on the same
privilege log.
CaseySub000080, indicates that those are notes from May 2014.
I would note that that last line item,
and that we know the existent -- that we know exist are from
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earlier, contemporaneous with, I believe, the time of the
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preliminary injunction order, so they would not be from May
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2014.
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by the defendants.
And how do you know they exist, again,
Ms. Wang?
13:59:16
MS. WANG:
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We know they exist because we have seen an
e-mail that Tim Casey sent -- and I'm sorry, I'll look for it
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while we're discussing -- that shows that there was an
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attachment to his e-mail that was titled, I believe, TJC Notes,
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that related to the preliminary injunction order.
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originally got a copy of that e-mail from the MCAO production,
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not from defendants' production of the Casey documents.
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And we
13:59:36
I wrote to Ms. Iafrate and Ms. Clark, pointing out
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that document indicated that there clearly was a set of notes
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that Tim Casey had sent, and I still have not seen those notes
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I note that those notes have not even ever been logged
THE COURT:
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The specific notes that we are trying to get disclosed
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13:59:57
even logged by defendants.

THE COURT:
MS. WANG:
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All right.
Ms. Iafrate.
And I'll look for that e-mail as we're
speaking.
THE COURT:
All right.
MS. IAFRATE:
Ms. Iafrate.
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Yes, I did
comply with the Court's order.
labeled as 00080, the last line item, Ms. Wang believed that
those applied to the preliminary injunction and now she's
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Just like the notes that are
telling you that those are not the notes.
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Similar to the other ones that I have withheld as
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privileged, they are privileged, they do not relate to the
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preliminary injunction, and they are subject to the privilege
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log.
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responsive to the subpoena duces tecum.
I have provided everything else that I have that's
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I've looked for the notes that are in question.
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I did
not have that e-mail that she's referring to -- excuse me, that
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Ms. Wang is referring to, regarding the TJC notes.
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from Maricopa County Attorney's Office.
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of the notes that were attached to the e-mail that they have,
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but I do not have that e-mail.

MS. WANG:
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That came
Maybe they have a copy
Your Honor, I sent Ms. Iafrate and
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Ms. Clark a letter detailing that e-mail, which I'm looking for
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now, and she's well aware of it.
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MS. IAFRATE:
No, I'm -- excuse me, Your Honor.
I'm
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well aware of it, but in my production I did not produce it
because I did not have it; I received it from MCAO and from
Ms. Wang.
THE COURT:
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And so do you have the document yourself,
Ms. Wang?
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MS. WANG:
I do not have the notes; I have an e-mail
that indicates that Mr. Casey sent the notes.
located that e-mail.
the e-mail in its entirety spans MCAO00018 through 22.

THE COURT:
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MS. WANG:
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I have now
It is referred to at page MCAO00022, and
So MCAO presumably has these notes?
No.
with MCAO.
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not have the attachment.
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e-mail that there was a Word file attached, and the file name
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for that Word document was 12-27-11tjcnotes.doc.
THE COURT:
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THE COURT:
Yes.
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compliance?
MS. IAFRATE:
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THE COURT:
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Yes.
Client correspondence re injunction
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Ms. Iafrate, of the --
-- first four documents, if you look at
MS. IAFRATE:
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14:02:28
the fourth, which is Casey sub-00016.
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But you can see from the body of the
All right.
MS. IAFRATE:
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They only had a copy of the e-mail string that did
THE COURT:
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What happened was we met and conferred
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Yes.
That certainly looks like it's a
responsive document to me.
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MS. IAFRATE:
It does look like it, Your Honor, but if
you look at the exact -- if you look at the document itself, it
is not responsive to the injunction compliance.
says "client correspondence regarding," this is e-mail
communication amongst the attorneys regarding something else.

THE COURT:
All right.
You see it
What is it going to take to
satisfy the parties here, Ms. Wang, that this does not -- that
this is an appropriate invocation of the privilege?
want me to take a look at these documents in camera?

MS. WANG:
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Sure, Your Honor.
Do you
Or we would request
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that -- we would request that either Your Honor or Magistrate
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Judge Boyle take a look at those documents in camera to see if
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they relate to the preliminary injunction order.

THE COURT:
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MS. WANG:
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THE COURT:
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Given the timing -- sorry.
Go ahead.
Your Honor, I would prefer that
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him via e-mail or whatever is most convenient to expedite this
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process.
I can provide them to
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Okay.
Why don't I go down and inform
Magistrate Judge Boyle that he's going to receive these four
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Magistrate Boyle do it if I had my wish.
THE COURT:
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documents, and that he's just to review and see if they relate
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in any way to advise -- or relate in any way to the preliminary
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injunction and/or compliance, and that he should just issue an
FR
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Any objection to that, Ms. Iafrate?
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Any objection to that, Ms. --
MS. IAFRATE:
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order.
Does anybody object if I go tell Magistrate Boyle
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that?
MR. WALKER:
MS. WANG:
THE COURT:
No, Your Honor.
All right.
Then I will go try to do that.
you don't have the document?

MS. IAFRATE:
THE COURT:
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Honor.
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Correct.
Where did it go?
MS. IAFRATE:
Not in the binders that I have, Your
MS. HAMILTON:
Your Honor, this is April Hamilton.
THE COURT:
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Just barely.
MS. HAMILTON:
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Yes.
If you'll speak up, please.
This is April Hamilton.
believe those notes are part of the production that's going out
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today from our office.
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THE COURT:
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So the notes are going to be delivered
today from your office.
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MS. HAMILTON:
Right.
I'm at this deposition right
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now, but I believe that they were sent out at -- just right
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now, actually.
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Can you hear me?
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you know what she's talking about, Ms. Iafrate; you simply say
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No, Your Honor, none from plaintiffs.
As it relates to the MCAO00018 through 22 document,
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No objection for the County, Your Honor.
MS. IAFRATE:
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14:05:19
THE COURT:
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And have they been delivered to the
parties, or have they been delivered to Ms. Iafrate?

MS. HAMILTON:
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to the parties.
her privilege review.
That specific e-mail has been delivered
Another production was sent to Ms. Iafrate for
THE COURT:
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All right.
Well, Ms. Iafrate, you're
going to have to undertake that privilege review immediately,
and get --
MS. IAFRATE:
THE COURT:
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Okay.
-- any of those documents, including the
notes, to plaintiff, unless you're going to claim a privilege.

If you are going to claim a privilege, call my
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chambers this evening and be ready -- I'm going to be at a
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state prison tomorrow, and I will have my secretary call you if
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there's any dispute about whether or not you need to provide
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those documents, so that we can set up something sometime in
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the morning and I can make a ruling.

MS. IAFRATE:
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THE COURT:
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MS. WANG:
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Any question about any of that?
No, Your Honor.
This is Cecillia Wang.
will be on a plane to Phoenix from San Francisco tonight
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between about 8 o'clock to 10 o'clock, so I just ask that
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Okay.
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Ms. Iafrate copy my co-counsel on any issues that arise during
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that time frame.
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THE COURT:
Would you please do that, Ms. Iafrate?
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MS. IAFRATE:
THE COURT:
Yes.
All right.
I will go down and inform
Judge Boyle that he will be receiving four documents.
With the
parties' permission, I will indicate to him the Bates ranges of
those documents on the privilege log, and I'll tell him that
he's simply to review them to determine whether or not they
relate in any way to the preliminary injunction entered by this
Court on December 23rd, 2011.
And then if I don't hear from you otherwise, I was
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informed by my judicial assistant that someone had called and
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asked about the location of the deposition of Mr. Casey on
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Wednesday.
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convening, so it will be in the room adjacent to the grand jury
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room on the third floor.
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think I indicated it all to you at the last hearing.
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it's 306A.
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setting it up at 8:30.
I've forgotten the number, but I
I think
Just for
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that everyone has notice of the courtroom, which we do have
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from Ms. Gonzales.
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plaintiffs, we will file an amended notice of deposition so
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THE COURT:
All right.
judicial assistant, Ms. Gonzales, because she does have the
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number of the courtroom, and I'm not altogether sure about it.
MS. WANG:
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Yes, double-check with my
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FR
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And the room will be available for you to begin
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14:07:00
We have inquired and the grand jury will not be
MS. WANG:
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I will do that, Your Honor.
Thank you.
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THE COURT:
MS. WANG:
All right.
Thank you all.
Your Honor, just to clarify, is the order
that Ms. Iafrate will produce the remainder of the MCAO
documents that MCAO is transmitting to her by tonight?

THE COURT:
MS. WANG:
THE COURT:
Yes.
And if she has --
14:08:05
If she's going to claim privilege, and if
there's going to be a dispute about that, I'll take it up with
you tomorrow.
MS. WANG:
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Thank you.
One other issue, Your Honor,
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while we are on the phone.
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now four depositions that we had hoped to take this week before
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the resumption of the contempt hearing on the 22nd.
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not been able to get dates for those four from the defendants,
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including -- that would include, in addition to the three we
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discussed last Friday, Sergeant Knapp.
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deposition for tomorrow, the 15th, and we've been informed
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today that Sergeant Knapp has been away and incommunicado on
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vacation until today and he is not available tomorrow.
I just want to note that there are
We have
I want to note that because the Court indicated that
there were certain witnesses you would like us to put on, or,
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rather, you wanted us to put on all of our evidence relating to
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certain subject matters in the first two weeks, that if we do
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have to go forward with the Zullo and Mackiewicz depositions,
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they're on October 7th as noticed.
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14:08:34
We had noticed his
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14:08:16
We want to make sure that
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we won't be contravening the Court's wishes on that.

THE COURT:
No, I mean, if that, in the end, proves
necessary, we'll just proceed on the dates that I've left open
until we finish all the factual testimony that you're going to
intend to offer or the defendants or anybody else is going to
intend to offer.
the experts on the adequacy of the internal investigative
affairs process at the MCSO.
MS. WANG:
And then we will move into the third stage of
THE COURT:
10
Again, though, I don't intend to easily
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let up on this, we need to bring it to a conclusion, so we can
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take these matters up on the 18th in our status conference.

MS. WANG:
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THE COURT:
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IEN
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DS
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All right.
I'll see you all, then, on
(Proceedings concluded at 2:10 p.m.)
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Thank you.
Wednesday.
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14:10:12
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C E R T I F I C A T E
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I, GARY MOLL, do hereby certify that I am duly
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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
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a full, true, and accurate transcript of all of that portion of
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the proceedings contained herein, had in the above-entitled
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cause on the date specified therein, and that said transcript
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was prepared under my direction and control.
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DATED at Phoenix, Arizona, this 16th day of
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September, 2015.
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IEN
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DS
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FR
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s/Gary Moll

Melendres v. Arpaio #1366 Sept 14 2015 TRANSCRIPT - Status Conference

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OF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

(Telephonic Status Conference)

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Proceedings taken by stenographic court reporter

For the Plaintiffs:

For the Defendant Maricopa County:

For the Defendant Joseph M. Arpaio and Maricopa County

For the Intervenor United States of America:

For the Movants Christine Stutz and Thomas P. Liddy:

CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.

For the Movants Maricopa County Attorney's Office and Maricopa

For Executive Chief Brian Sands:

CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.

This is CV 07-2513, Melendres, et al., v.

Arpaio, et al., on for a telephonic status conference.

Good afternoon, Your Honor.

of the ACLU and Michelle Morin of Covington & Burling for

Good afternoon, Your Honor.

Iafrate on behalf of Sheriff Arpaio.

Good afternoon, Your Honor.

Walker and Charles Jirauch on behalf of Maricopa County as

defined in previous appearances and filings with the Court.

-- either appearing on behalf of Maricopa

County or you're not appearing on behalf of Maricopa County.

Appearing on behalf of Maricopa County,

Mr. Walker, you're --

Counsel, please announce your appearances.

CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.

appearance on behalf of Sheriff Arpaio.

I am also covering for Lee Stein and Barry Mitchell,

who are specially appearing for the -- the chief.

CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.

Terrence P. Woods for nonparties Stutz and

Mr. Woods, I can hear by your tone of

couldn't do anything but hear you, now we cannot hear you at

Are you hearing me now, Your Honor?

I'll tell you well, I'll try to scream if

I need to talk, and what I hope is that I won't have to talk.

I can barely hear you.

Yes, Your Honor.

April Hamilton for the County

Attorney's Office and Maricopa County Attorney William

Greg Como on behalf of Brian Sands.

Joe Popolizio on behalf of Sheriff

Paul Killebrew on behalf of the United

specially appearing for Deputy Chief MacIntyre.

States as plaintiff intervenor.

Karen Clark, ethics counsel for Tim Casey.

Do we have anybody else?

(Off-the-record discussion between the Court and the

CV07-2513, Melendres v. Arpaio, 9/14/15 Telephonic Conf.

Thank you, Your Honor.

I'm sorry, Ms. Wang.

Before I allow you

to continue, we need to have whoever was appearing for Maricopa

County Attorney Bill Montgomery to restate clearly who they are

and who they're appearing for, because we didn't catch it here.

I apologize, Your Honor.

Hamilton on behalf of the County Attorney's Office and County