Melendres v. Arpaio #1557 Nov 5 2015 TRANSCRIPT - Status Conference

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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AMENDED TRANSCRIPT
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Court Reporter:
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Phoenix, Arizona
November 5, 2015
10:04 a.m.
(Telephonic Conference)
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No. CV 07-2513-PHX-GMS
BEFORE THE HONORABLE G. MURRAY SNOW
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 1 of 17
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: Stanley Young, Esq.
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.
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: Maureen Johnston, Esq.
601 D. Street NW
Washington, D.C. 20004
IEN
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
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Melendres v. Arpaio, 11/5/15 Telephonic Conference
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 telephonic conference.
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Counsel, please announce your appearances.
MR. POPOLIZIO:
MS. WANG:
Good --
Good morning, Your Honor.
MR. POPOLIZIO:
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MS. WANG:
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Go ahead.
Go ahead.
Okay.
10:04:54
For plaintiffs you have
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Cecillia Wang from the ACLU and Stan Young and Michelle Morin
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from Covington & Burling.
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THE COURT:
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MR. WALKER:
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MR. McDONALD:
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This is
This is
Mel McDonald on behalf of Sheriff Arpaio.

MS. IAFRATE:
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This is
Michele Iafrate on behalf of Sheriff Arpaio and the alleged
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This is Joe
Richard Walker on behalf of Maricopa County.
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Popolizio on behalf of Sheriff Arpaio.
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Good morning.
MR. POPOLIZIO:
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nonparty contemnors.
MR. MURDY:
behalf of retired Chief Brian Sands.
Craig Murdy on
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MS. JOHNSTON:
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THE COURT:
if that's everybody?
All right.
This is
What do we have this morning,
Is anybody else left to announce?
MR. POPOLIZIO:
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Maureen Johnston on behalf of the United States.
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I don't believe so, Your Honor.
This
is Joe Popolizio.
THE COURT:
All right.
morning, Mr. Popolizio?
MR. POPOLIZIO:
So what remains at issue this
Well, we have reached an agreement
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regarding redactions to six exhibits, and so that is not why
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we're speaking with you this morning.
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about this morning, Your Honor, is the subject of sealed
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exhibits.
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exhibits that were admitted under seal not being released to
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the press.
What we're speaking
We have an agreement regarding that, too, as to
10:06:32
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in e-mail form has to do with three other exhibits: 2799, 2843,
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and 2894.
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investigations.
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but I'd like to address that, and I'd like to see if they could
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be sealed and then not released to the public and the media.
These are records related to open Internal Affairs
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They were not admitted under seal, Your Honor,
THE COURT:
One moment.
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MR. POPOLIZIO:
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THE COURT:
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(Pause in proceedings.)
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10:06:05
The discussion that followed -- that we had last night
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10:07:04
It's 2799, 2843, and 2894?
Yes.
Let me get them out.

10:09:36
THE COURT:
All right.
MR. POPOLIZIO:
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Okay.
I have them.
Your Honor, these exhibits all
relate to open IA investigations.
The first that I would like
to address is 2799.
about steroid purchase and use, I guess.
It's the memo regarding an investigation
In that memo it set forth the action planned for this
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investigation.
to this memo, are Detective Mackiewicz and also a Deputy
Kempher.
The principals in that investigation, according
It contains the plan, the memo itself does, for the
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investigation going forward that was approved by Captain Bailey
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and Chief Deputy Sheridan.
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media, and therefore it will go out to the public, would
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disclose the actual approved investigation plan of MCSO and it
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would jeopardize the investigation.
specific questions and information to follow up on, and the
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names of people like -- references people like Deputy Kempher's
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wife, a former girlfriend of Detective Mackiewicz, and also an
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individual that provided confidential information, an
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individual by the name of Chambers.
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release of this particular exhibit to the public and not
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sealing this exhibit would jeopardize any investigation, and
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And I think that the
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also there's a law enforcement privilege there, Your Honor, and
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that should apply.
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10:10:21
So disclosure of that memo to the
It also contains the names of witnesses to contact,
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And also we have in this exhibit and the other
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exhibits references to other individuals whose probably their
privacy concerns should be also considered when weighed against
whether we're going to release this to the public and the
public's need to know.
for the Court if you would like.

THE COURT:
10:12:01
Go ahead.
MR. POPOLIZIO:
And I have a couple of cases to cite
There is a case regarding the --
basically, a motion to seal documents that are part of the
judicial record, Your Honor, and the showing of -- the need to
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show compelling reasons.
I think compelling reasons exist
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here.
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Creditors Association, and that's 605 F.3d 665, a Ninth Circuit
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case.
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Kamakana versus City and County of Honolulu, and also another
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case, Hagestad versus Tragesser.
But that is Pintos, P-i-n-t-o-s, versus Pacific
And it cites two other cases, Your Honor: the case
10:12:49
And Your Honor, in that Pintos case it says that you
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have to show compelling reasons to outweigh the history of
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access and public policies favoring disclosure.
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when you look at 2799, the reasons that I just provided to the
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Court, and specifically the law enforcement privilege, would
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outweigh the need to provide this to the media.
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broadcast to the public.
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10:12:20
And I think
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It would be
I think it would jeopardize any
investigations of the two deputies involved.

There's also in that case -- and the case quotes that
Hagestad case -- that the Court could weigh factors including
10:13:41
not only the public interest, Your Honor, but also whether the
disclosure of the material could result in improper use of the
material for libelous or scandalous purposes.
And we have that risk here in a way, Your Honor,
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because we know from the history of the media coverage in this
case, and in others in the City of Phoenix and in this county,
that the exhibits, not only the content of them, but the
exhibits themselves, are apt to be broadcasted.
articles that have attachments to them and you could read the
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exhibit in its entirety.
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and we could try to seal these exhibits.
I've seen
I think I want to try to avoid that
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2843 and 2894.
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apply.
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proceedings.
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open, and the MCSO has a right to investigate without any
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impediment that disclosure would probably create here.
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again, considering the invasion of privacy and privacy issues
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with regard to witnesses were referenced in these materials
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also.
Again, the law enforcement privilege would
Disclosure would interfere with the pending enforcement

Again, there are some IA investigations that are
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10:15:11
be placed under seal just as the other ones related to IA

investigations that are open.
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agreed not to disclose to the public are also under seal.
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And
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So I believe, Your Honor, that these exhibits should
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10:14:03
The same arguments would apply to not only 2799 but
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THE COURT:
2015, 2016, and 2842 that we've
I'm going to ask you to give me a minute.
10:15:48
I have looked at 2799.
me that they give rise to slightly different concerns, and I
might have a few more questions for you, Mr. Popolizio, before
I hear from plaintiffs on this.

MR. POPOLIZIO:
I'm now looking at 2843.
It seems to
Okay.
10:16:06
(Pause in proceedings.)
THE COURT:
All right.
I am going to point out this
is an open proceeding and there is public here in the
courtroom.
Does anybody from the plaintiffs wish to say
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anything with respect to plaintiffs' request -- or defendants'
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request?
MS. WANG:
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Yes, Your Honor.
Thank you.
This is
Cecillia Wang.
First, Your Honor, as to Exhibit 2799, to the extent
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that defendants can represent that specific information in that
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memorandum is still part of an active investigation, plaintiffs
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do not object to redaction of that type of material for the
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reasons that Mr. Popolizio argued.
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others that the defendants argued, we would not object to
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redactions; or, rather, the narrowest possible sealing of that
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document.
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And on that basis, and not
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sorry, March 26th, 2015, so I would ask the defendants explain
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why all of the content would need to be redacted as part of an
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active investigative plan.
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10:20:19
I do note that the date on the memorandum is May --
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Secondly, Your Honor, as to that exhibit, plaintiffs
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introduced it for a very specific purpose.
There is a
handwritten note on it that relates to actions that
Chief Deputy Sheridan took, and we did elicit testimony in open
court about that, and so we believe that at a minimum, the
document should merely be redacted and not sealed in its
entirety so that that handwritten note would be public and
could be released to the press upon request.
Your Honor, as to Exhibit 2843, we do not believe that
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defendants have made any showing under the Ninth Circuit case
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law to seal that document or any part of it.
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there's any active law enforcement interest that would be
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impaired by the disclosure -- or public disclosure of that
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document.
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they've made the adequate showing.
10:21:21
We don't think
Similarly, with Exhibit 2894, we do not believe that
10:21:48
I'd also point out that there is a fourth exhibit that
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defendants had listed among those that they wished to have
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sealed in our meet-and-confer process.
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I believe defendants are right that that exhibit, which is the
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August 5th, 2015, interview of Detective Mackiewicz by Sergeant
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Tennyson, was originally admitted under seal during
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Lieutenant Seagraves's testimony, but I do believe that it
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That is Exhibit 2842.
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subsequently was either played or read again without seal
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during the testimony of Sergeant Tennyson and subsequent to
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some sidebar discussion and the Court's further elaboration of
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its rulings on what materials relating to open investigations
of Detective Mackiewicz should remain under seal.
that out, and I believe that that is another exhibit where
defense would need to meet the higher standard for documents
that are already in the public record.

THE COURT:
So I point
10:22:54
Well, presumably because they haven't
moved with respect to 2842 they're no longer making that
assertion.
Is that correct, Mr. Popolizio?
MR. POPOLIZIO:
No, Your Honor, because I thought, in
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light of Ms. Wang's e-mail back to me saying that she agrees in
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principle that exhibits are admitted under seal and they should
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not be released to the press, I included that exhibit, 2842,
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along with 2015 and 2016, in that category of sealed exhibits
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that would not be disclosed to the media and the public.

THE COURT:
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Okay.
I'm not sure that I followed that,
First off, I do not know what's in 2894.
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a DVD in my evidence exhibits.
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some sort of an explanation as to what it is?
THE COURT:
MR. POPOLIZIO:
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MS. WANG:
FR
Does somebody want to give me
It's the audio of the Tennyson
10:23:59
Of August 5th, 2015?
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It is merely
interview of Mackiewicz.
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MR. POPOLIZIO:
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10:23:38
so I'm going to restate it to make sure I am sure.
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10:23:11
I'll get the date for you, Your Honor.
It's a different interview, Your Honor.
This is Cecillia Wang.
Exhibits 2842 and 2894 are audio
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recordings of two different interviews by Detective Mackiewicz
by Sergeant Tennyson.
MR. POPOLIZIO:
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me, Your Honor, but it is a different interview.

THE COURT:
to me, Mr. Popolizio.
MR. POPOLIZIO:
Yes, Your Honor.
I believe it is, but
THE COURT:
Okay.
Please confirm it.
There's enough
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information in there that I think that you should be allowed to
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redact that exhibit to protect information that pertains to an
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ongoing investigation.
10:25:01
However, I do agree with Ms. Wang that at a minimum
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the date of the memorandum, who it's from and who it's to, the
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handwritten note, which I believe is by -- appears to be by
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Seagraves on the right-hand side, and the handwritten note on
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the top indicating to Sergeant Tennyson on 3-31-15, at a
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minimum are not subject to disclosure, and there may be other
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things in the memorandum that are not subject to disclosure.
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10:25:20
So I will authorize you to redact that exhibit, but
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I'm not going to allow you to put it under seal.
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request that you do so expeditiously.
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I will confirm it.
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10:24:28
And I assume you're going to make that representation
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Well, here's my reaction.
that assuming the investigation is still ongoing --
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All right.
My reaction is that there is much information in 2799
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I don't have a date right in front of
All right?
And I would
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MR. POPOLIZIO:
THE COURT:
Yes, Your Honor.
All right.
As for Exhibit 2843, I've just
reviewed that.
I can't see anything in here that isn't already
public record.
Is there anything in here that hasn't already
come out in court?
10:25:58
MR. POPOLIZIO:
Well, let's see, Your Honor.
I don't believe so, Your Honor.
It's just in this
category because it does relate to an open investigation, and
it's the open IA investigation, and that's why I asserted the
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law enforcement privilege on it.

THE COURT:
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All right.
10:26:28
Well, I don't think -- I mean,
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the law enforcement privilege is not, as you know,
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Mr. Popolizio, not an absolute privilege; it's a weighing
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privilege.
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2843 is not subject to any privilege whatsoever.
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material's come out in court, I think everyone's aware of it,
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and so I don't think it serves any purpose, or at least
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sufficient purpose, in keeping it confidential to keep it from
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the general public.
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out in testimony.
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Did I mean 2843?
10:26:56
No, I meant -- yeah, I
meant 2842.
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MS. WANG:
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I do believe that the content of that audio recording,
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Am I misremembering that?
I said 2842.
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All of this
I do recall also that certain parts of 2842 have come
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And as I weigh the various concerns, I think that
Yes, Your Honor.
This is Cecillia Wang.

10:27:23
as I said, was played or read from during the testimony of
Sergeant Tennyson without seal.

THE COURT:
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I think in light of that, Mr. Popolizio,
you're going to have to establish compelling reason why this
should be kept confidential.
there is still an ongoing criminal investigation here, but
you're going to have to tell me what in here is relevant to the
ongoing criminal investigation that hasn't already come out in
court that would prevent it from being disclosed.

MR. POPOLIZIO:
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And I do realize that the --
I cannot give you specific things at
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this time, Your Honor.
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entire, you know, the entire exhibit, and that there is a
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difference between eliciting testimony, in my eyes, Your Honor,
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and providing the actual material, the actual exhibit to the
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public.
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a touch of a button and reproduced in the same way, and I
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believe that doing so does create obstacles for investigations.
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privilege, it's a weighing privilege, and you haven't given me
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anything to weigh here.
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something to weigh, and so in the absence of that, 2842 is not
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indicated, the law enforcement privilege is not an absolute
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Well, that may be true, but as we've
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10:28:07
I'm just moving toward the -- the
Dissemination of information, you know, can occur with
THE COURT:
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10:29:02
And it is your obligation to give me
under seal.
And I guess I would ask you the same question with
respect to 2894.
10:29:22
MR. POPOLIZIO:
Well, that's a second interview
conversation between Tennyson and Mackiewicz, Your Honor, and
for the same thing:
reproduced, or played, or quoted, would also interfere with
MCSO's investigation.
THE COURT:
Disseminating this out to the public to be
10:29:54
Well, again, I'm asking you for specifics:
What information is there in it, and what kind of information
does it contain, that you believe would interfere with the
ongoing investigation?
MR. POPOLIZIO:
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Your Honor, at this time I couldn't
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point to a specific statement in there.
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unable to do this at this time.

THE COURT:
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I'm
Well, in the absence of your
Now, what exhibits specifically are still under seal
MR. POPOLIZIO:
THE COURT:
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MS. WANG:
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THE COURT:
2015 and 2016, Your Honor.
And do you agree with that, Ms. Wang?
Yes, Your Honor.

All right.
Well, have I admitted them
under seal or made a determination pursuant to Kamakana that
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the compelling interest standard has been met with respect to
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10:30:27
as the parties understand it?
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All right.
I just can't.
10:30:04
ability to do that, 2894 is also not under seal.
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10:30:48
those exhibits?
MR. POPOLIZIO:
They were admitted in sealed portions
of the hearing, Your Honor.
10:31:03
THE COURT:
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Okay.
Well, probably -- one of the things
I had on my agenda to do, just so you're aware, Mr. Popolizio,
and so you can be prepared to make any arguments if you want to
make them, at the end of the case I'm going to ask the parties
what, if any, portions of this hearing that we held under seal
should remain under seal.
admittedly, my recollection is not perfect -- I don't recall
anything in those under-seal discussions that has remained
confidential or needs to remain confidential in light of the
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As I recall, those -- and
subsequent information that was disclosed.
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going to tell you, Mr. Popolizio, and all other parties
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involved here that may have an interest, that at the end of the
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hearing I'm going to ask the parties to demonstrate for me
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anything that I admitted under seal, why it should remain under
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seal.
unless you tell me otherwise -- and I'm going to put the burden
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on you, Mr. Popolizio -- that if in fact this investigation
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ever closes, or charges are ever brought, or charges are ever
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dismissed, that you bring that information forward so that the
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redactions can be opened up to any party that wants to see
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10:31:57
Now, with respect to 2799, I'm going to presume,
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10:31:42
But I don't claim that my memory is perfect and so I'm
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10:31:20
10:32:17
them.
But in the meantime, I do concur that there is
information in 2799 that you've established to my satisfaction
10:32:34
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relates to an ongoing investigation and justifies allowing you
to redact that.
obtain a stipulation of the parties; or if not, bring it up
before the contested redactions and we'll deal with it in that
way.
questions about it?
MR. POPOLIZIO:
MS. WANG:
THE COURT:
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10:32:55
Is there any unclarity about what I just said, or
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So I'm going to ask you to do that quickly,
today?
No, Your Honor.
Anything else we need to take care of
MR. POPOLIZIO:
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MS. WANG:
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No, Your Honor.
No, Your Honor.
No, Your Honor.
Just maybe for the record,
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the parties did agree to redactions of personally identifying
15
information in Exhibits 2072, 2917, 2919, and 2923.

THE COURT:
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MS. WANG:
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Sorry, I forgot that one.
That's all right.
All right.
I will talk to you, then,
again tomorrow.
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THE COURT:
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And in addition, 2900A.
Correct.
MR. POPOLIZIO:
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MS. WANG:
Thank you, Your Honor.
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MR. POPOLIZIO:
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THE COURT:
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(Proceedings concluded at 10:33 a.m.)
FR
10:33:17
All right.
MR. POPOLIZIO:
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10:33:04
Thank you.
Thank you.
10:33:37
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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 November,
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2015.
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IEN
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DS
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FR
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s/Gary Moll

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 1 of 17

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 Executive Chief Brian Sands:

Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 2 of 17

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

Arpaio, et al., on for telephonic conference.

Counsel, please announce your appearances.

Good morning, Your Honor.

Good morning, Your Honor.

For plaintiffs you have

from Covington & Burling.

Good morning, Your Honor.

Good morning, Your Honor.

Mel McDonald on behalf of Sheriff Arpaio.

Good morning, Your Honor.

Michele Iafrate on behalf of Sheriff Arpaio and the alleged

Richard Walker on behalf of Maricopa County.

Good morning, Your Honor.

Popolizio on behalf of Sheriff Arpaio.

Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 3 of 17

Good morning, Your Honor.

behalf of retired Chief Brian Sands.

Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 4 of 17

What do we have this morning,

Is anybody else left to announce?

Good morning, Your Honor.

Maureen Johnston on behalf of the United States.

I don't believe so, Your Honor.

morning, Mr. Popolizio?

So what remains at issue this

Well, we have reached an agreement

regarding redactions to six exhibits, and so that is not why

we're speaking with you this morning.

about this morning, Your Honor, is the subject of sealed

exhibits that were admitted under seal not being released to

What we're speaking

We have an agreement regarding that, too, as to

in e-mail form has to do with three other exhibits: 2799, 2843,

These are records related to open Internal Affairs

They were not admitted under seal, Your Honor,

The discussion that followed -- that we had last night

It's 2799, 2843, and 2894?

Let me get them out.

Case 2:07-cv-02513-GMS Document 1557 Filed 11/16/15 Page 5 of 17

Your Honor, these exhibits all

relate to open IA investigations.

The first that I would like

about steroid purchase and use, I guess.

It's the memo regarding an investigation

In that memo it set forth the action planned for this

to this memo, are Detective Mackiewicz and also a Deputy

The principals in that investigation, according

It contains the plan, the memo itself does, for the

investigation going forward that was approved by Captain Bailey