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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))
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No. CV 07-2513-PHX-GMS
Phoenix, Arizona
August 11, 2015
9:04 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Status Conference)
Court Reporter: Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003(602) 322-7263
Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 2
A P P E A R A N C E S
For the Plaintiffs:American Civil Liberties Union Foundation
Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street
San Francisco, California 94111
American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Andre Segura, Esq. - Telephonically
125 Broad Street, 18th FloorNew York, New York 10004
American Civil Liberties Union of ArizonaBy: Joshua David R. Bendor, Esq.P.O. Box 17148
Phoenix, Arizona 85011
Covington & Burling, LLPBy: Michelle L. Morin, Esq. - Telephonically
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
For the Defendant Maricopa County:
Walker & Peskind, PLLC
By: 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:
Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012
For the Defendant Joseph M. Arpaio and Maricopa County
Sheriff's Office:Iafrate & AssociatesBy: Michele M. Iafrate, Esq.
649 N. 2nd AvenuePhoenix, Arizona 85003
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 3
A P P E A R A N C E S
For the Movants Christine Stutz and Thomas P. Liddy:Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.P.O. Box 20527Phoenix, Arizona 85036
For the Movants Maricopa County Attorney's Office and MaricopaCounty Attorney William Montgomery:
Ridenour Hienton, PLLC
By: Ernest Calderon, Esq.
Chase Tower201 N. Central Avenue, Suite 3300Phoenix, Arizona 85004
For the Intervenor United States of America:United States Department of Justice - Civil Rights
By: Edward G. Caspar, Esq. - TelephonicallyBy: Paul Killebrew, Esq. - Telephonically
950 Pennsylvania Avenue NW, 5th FloorWashington, D.C. 20530
For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLCBy: Gary L. Birnbaum, Esq.
1850 North Central Avenue, Suite 1400
Phoenix, Arizona 85004
For Chief Deputy Gerard Sheridan:Mitchell Stein Carey, PC
By: Lee D. Stein, Esq.
1 Renaissance Square2 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
For Executive Chief Brian Sands:
Lewis, Brisbois, Bisgaard & Smith, LLPBy: Dane A. Dodd, Esq.
2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Lieutenant Joseph Sousa:David Eisenberg, PLCBy: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003Phoenix, Arizona 85004
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 4
A P P E A R A N C E S
Also present:Chief Raul Martinez, Deputy Monitor - Telephonically
Deputy Chief Jack MacIntyreLieutenant Joseph SousaRaphael O. Gomez, Esq.
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 5
P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case number 07-2513,
Melendres, et al., v. Arpaio, et al., on for status conference.
Counsel, please announce your appearances.
MS. WANG: Good morning, Your Honor. Cecillia Wang of
the ACLU for the plaintiffs.
THE COURT: Good morning.
MR. BENDOR: Good morning. Josh Bendor of the ACLU of
Arizona for plaintiffs.
THE COURT: Good morning.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio and the alleged nonparty
contemnors.
THE COURT: Good morning.
MR. MASTERSON: Good morning, Judge. John Masterson
and Joe Popolizio for Sheriff Arpaio.
THE COURT: Good morning.
MR. WALKER: Good morning, Your Honor. Richard Walker
and Charles Jirauch on behalf of that portion of the Maricopa
County government embodied in the Board of Trustees, the county
manager, and the county employees who work under their
direction and supervision.
THE COURT: Let me just ask you, Mr. Walker, the
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people you've just set forth are not parties to this action,
are they?
MR. WALKER: They are not.
THE COURT: Thank you.
MR. McDONALD: Good morning, Your Honor.
Mel McDonald, special appearance for Sheriff Joe Arpaio.
THE COURT: Good morning.
MR. WOODS: Good morning, Your Honor. Terry Woods. I
represent nonparties Liddy and Stutz.
MR. DODD: Good morning, Your Honor. Dane Dodd on
behalf of retired Chief Brian Sands.
THE COURT: Good morning.
MR. BIRNBAUM: Good morning, Your Honor. Gary
Birnbaum, appearing specially for Deputy Chief MacIntyre, who
is also present in the courtroom.
MR. CALDERON: Good morning, Your Honor. Ernest
Calderon on behalf of Maricopa County Attorney Bill Montgomery
and his office, nonparty.
MR. STEIN: Good morning, Your Honor. Lee Stein on
behalf of Chief Deputy Sheridan, who is not present.
THE COURT: And you're specially appearing, Mr. Stein?
MR. STEIN: I am. I apologize, I'm specially
appearing.
MR. EISENBERG: Good morning, Your Honor.
MR. CASPAR: Good morning, Your Honor. This is Edward
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Caspar and Paul Killebrew with the U.S. Department of Justice,
counsel for the United States relevant to the intervention
motion.
THE COURT: Good morning.
MR. KILLEBREW: Good morning.
MR. EISENBERG: Good morning, Your Honor. David
Eisenberg, specially appearing on behalf of Lieutenant Joseph
Sousa. The lieutenant is present.
MR. GOMEZ: Good morning, Your Honor. My name is
Raphael Gomez with the U.S. Department of Justice in Washington
concerning the Montgomery case.
THE COURT: Good morning.
Is there anyone else on the line?
MR. SEGURA: Good morning, Your Honor. This is Andre
Segura for the plaintiffs from the ACLU. There are a few
others on the line.
CHIEF MARTINEZ: Good morning, Your Honor. Chief Raul
Martinez from the monitoring team.
THE COURT: Good morning, Chief.
CHIEF MARTINEZ: Good morning.
MS. MORIN: Good morning, Your Honor. Michelle Morin
of Covington & Burling for the plaintiffs. I believe my
pro hac vice is still being processed or en route to the -- to
the court.
THE COURT: Anyone else?
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 8
Is Mr. Klayman on the line?
All right. First matter, why don't we discuss the
United States' motion to intervene. I have no objections to
that motion. I did receive a reply from Mr. Caspar in support
of his motion in which he rejects -- or chafes at the
limitations which Maricopa County, from his perspective, sought
to impose on his intervention.
Let me just say, and I'll hear any parties who want to
discuss it, but it seems to me that I'm going -- in light of
the fact that there aren't any objections to the intervention,
that I am going to allow it. And if there are objections as to
the scope of the intervention, I'll hear them as we go along,
so that if you believe that the United States is exceeding the
scope of this matter, I will allow you to raise those as we go
along. But it seems better to me to do that in a fact-specific
context than try to carve out some sort of limitation at this
point when I don't know what possible issues might be raised.
It certainly seems -- Mr. Masterson, Mr. Popolizio, I
don't know who's going to address this, but you have now
arrived at some sort of settlement completely with the
Judge Silver action?
MR. MASTERSON: Judge, I believe we have. Now, it's
still contingent on Judge Silver's approval of one certain
settlement agreement between the United States and the
defendants, but we have resolved all the issues as between the
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 9
United States and my clients.
I believe Mr. Walker has some -- Mr. Walker may want
to address issues he may have in that case, but we believe on
behalf of Sheriff Arpaio we have resolved all pending claims
with the United States through settlement agreements and then
the intervention into this case.
THE COURT: All right. Let me just say,
Mr. Masterson, it does seem to me, and I don't -- and maybe you
didn't make this objection or limitation, but I think
Mr. Caspar indicated that they objected to any notion that they
wouldn't be able to participate in the retrial of this case,
and I think you've frankly indicated to me, and it makes sense,
or at least I understand your position, that if you get me
recused, you may well also seek to re -- from the Ninth
Circuit, you may well also seek to vacate my May 2013 findings
of fact and the appropriate -- or the associated supplemental
permanent injunction.
I don't know that you'll try to do that, but you may,
and you've indicated that you may try to do that if you achieve
success. I appreciate that straightforward assessment, but it
seems to me at this point, because, as I understand it, and
maybe I'm wrong about this, Judge Silver's order incorporated
the order that I'd entered in this case, if that gets vacated,
I don't see why I should prevent the United States from
assisting in the retrial of the case. And so that's one of the
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reasons why I'm disinclined to impose any limitations on their
intervention at this point, but certainly at that point you can
raise the matter.
If that point were to occur, of course, it wouldn't be
in front of me, and so I want to make clear that their motion
for intervention that I'm going to grant is without prejudice
to you raising individual objections as to its scope as we go
along, but I'm not going to limit it at this point unless you
have some additional concerns you want to raise.
MR. MASTERSON: I do not, Judge, and that's how I
understood the Court's intended ruling.
THE COURT: Okay. Did you have anything that you
wanted to raise, Mr. Walker?
MR. WALKER: No, Your Honor. I understand your
inclination on this and we will raise objections as we go
along. As I pointed out in the response, though, we have a
concern that the Department of Justice is trying to do an
end run around the consequences of the action that it chose to
bring before Judge Silver and to litigate before Judge Silver,
and to that extent, we don't think the Department of Justice,
as with any party, should be permitted to do that.
THE COURT: I think I understand your concerns and
objections. I think they'll probably be better placed in a
particular fact-specific focus, and we can raise it at that
time. Certainly, I'll note, and I don't think it's news to
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anybody, that the ACLU and Covington and the law firms before
that have borne the brunt of this litigation, along with the
plaintiffs.
Ms. Wang, do you have anything you wish to say on the
motion to intervene?
MS. WANG: No, Your Honor.
THE COURT: All right. Well, then I will file an
order, probably within later today or in a day or two, granting
that motion. And I'm granting it without limitation but I do,
as I think I've made clear, grant it without prejudice to any
assertion by the defendants that the United States is exceeding
the appropriate scope of the intervention in a fact-specific
context.
We have before us the pending renewal of the
pro hac vice application of Larry Klayman. Mr. Klayman is not
here. I had indicated my intent to hear that today and I guess
it's still my intent.
I note that the sheriff hasn't taken any position on
that intervention. I notice that plaintiffs have opposed it.
I notice that to the extent that Maricopa County is a separate
entity and a nonparty, they've also introduced a filing.
I will say I have read the filing. I'm not sure that
I'm going to take it into account, and I'm not sure that I need
to. When Mr. Klayman was here, I asked him to address some
specific issues, and he did not do that, from my perspective,
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in his reply, and they remain for me very concerning.
It does seem to me that Mr. Klayman filed -- entered
with Mr. Moseley on Mr. Moseley's previous attempt, and Moseley
is an associate of Mr. Klayman's, and Mr. Klayman filed and
represented himself as of counsel on all of Mr. Moseley's
previous briefs. Mr. Klayman represents Sheriff Arpaio in the
District of Columbia action and he doesn't seem to contest
that. He says that he's not going to seek to challenge Sheriff
Arpaio here, and yet in his reply he is vigorously critical of
Sheriff Arpaio's representation, which I believe is -- and
infused issues and invective in this lawsuit that are simply
not issues, and suggests that he cannot fulfill his duty to
both of his clients -- Sheriff Arpaio, on the one hand, and
Mr. Montgomery on the other -- especially if he is not going to
seek in any way to challenge what Sheriff Arpaio has said in
his testimony, which would tend to indicate that
Mr. Montgomery -- and again, I'm not saying it does indicate
it, but based on the testimony as we have it to date the
sheriff is -- I think it was Chief Deputy Sheridan who said
that the representation was that these were documents taken
from the CIA, and that both Chief Deputy Sheridan -- and by
"the representation," I mean the representation that
Mr. Montgomery made to the MCSO -- and that both the sheriff
and the chief deputy have indicated that that material appears
to be extremely unreliable and junk.
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Certainly, some of the documents that have been
produced since then seem to support the sheriff's view, and as
it relate -- and Mr. Klayman says that he wishes to intervene
in this action to protect his ownership rights in the property,
and yet I asked him how anything about this action has to do
with whether or not he has ownership in the property. The only
thing we've done is turned it over -- at this point, authorized
the Department of Justice to look at it, and they are under an
order not to diffuse it in any way without further order of
this Court, and I asked him how that in any way impaired
Mr. Klayman's ownership interest and he didn't have an answer
for me at that time, and he doesn't provide an answer in his
reply, at least as I read it.
I also pointed out that at least according to the
testimony and the documents that have been provided as I
understood them -- and again, I understand we don't have a
complete story here -- that what Mr. Montgomery was purporting
to be able to do to the Maricopa County Sheriff's Office was
reproduce phone calls and computer records between this Court,
the Department of Justice, between the Department of Justice
officials, and phone taps that may have taken place as against
the sheriff, as against Mr. Popolizio and Mr. Masterson, as
against this Court, as against other judges, in 2009 and 2010.
And I didn't understand -- when he said to me that the District
Court of Nevada had already found that he had certain materials
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related to a company that he operated and they had ruled in
2006 and 2007 that he owned those materials, I didn't
understand how, if they were claiming those were the same
materials, you could get anything from 2009 and 2010 on them,
so we must be talking materials that are different, if they are
as he represented them to be, than the materials from the
district court judgment, and again, he was unable to answer
that question and does not answer that question in his reply.
And again, I think that it's possible that Mr. Klayman
himself may be a witness in this case, based on the documents
that have been disclosed. And I'm not saying he will be a
witness and I'm not even saying he has relevant testimony, but
the documents disclosed in connection with the motion to recuse
I think suggest strongly that Mr. Klayman himself may have even
been involved in efforts to convince Maricopa County that
Mr. Montgomery was providing them with real stuff.
And for all those reasons -- I appreciate what
Mr. Klayman says, that Mr. Montgomery has difficult finding
counsel, and I'm certainly not preventing him from appearing
here, either individually unrepresented or with any other
counsel. But I do not believe that Mr. Klayman or anyone in
his law firm, for reasons I've stated, including the fact that
in addition to what I view to be his -- at least, as far as I
can tell to date, unwarranted attacks on Ms. Iafrate and others
of the sheriff's counsel, and I think he's also attacked this
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Court, he's attacked plaintiffs, he's attacked everybody else
and raised all kinds of issues that seem to me to be
extraneous, including the allegation that this Court and
various newspapers in town have a bias against the sheriff, it
just seems to me that in light of his conflict, in light of the
fact that I don't think he's raised -- he's raising anything
that relates to this case and that would merit intervention,
and in light of the fact that his behavior suggests that he
would infuse invective in this lawsuit and issues that are
simply not at issue, and in light of his past disciplinary
history, as well as in light of the past disciplinary history
of Mr. Moseley, I am not granting his motion to intervene at
this point.
Does anybody want to be heard on that one?
MS. WANG: No, Your Honor.
MR. MASTERSON: I have nothing, Judge.
MR. WALKER: The County has nothing further, Your
Honor.
THE COURT: All right. I think now we need to start
focusing in on narrowing the issues and determining what's
going to take place in the September hearing if it goes
forward, and it seems to me there's some issues to address in
that respect.
First is the 1500 driver's licenses or other
identifications and the PSB investigation of those matters. We
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CV07-2513, Melendres v. Arpaio, 8/11/15 Status Conference 16
currently have those identifications at the Marshals'. I
believe, but I'm not sure, that PSB has initiated an
investigation into those identifications as well as the other
identifications and the other matters that we also have, and I
need to know whether the MCSO needs to get access back to those
identifications to figure out where they came from or to
complete their investigation, I need to know what access
plaintiffs would like to those identifications, and I need to
know if the monitor needs those identifications for purposes of
evaluating the adequacy of MCSO's investigation, but I presume
that that would abide the completion of MCSO's investigation.
But since it doesn't seem to be contested that a number of
those identifications involve members of the plaintiff class,
it seems to me that it may well be relevant.
I don't know, do you want to be heard on this,
Ms. Wang?
MS. WANG: Yes, Your Honor. Thank you.
Your Honor, plaintiffs would seek production of the
1500 identification documents and further discovery, so that we
can determine whether any of the owners of those documents were
victims of violations of the preliminary injunction or other
constitutional violations by MCSO personnel.
We believe that they're certainly discoverable and
very -- potentially go to the heart of the constitutional
violations that were found at trial in this case. So we would
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seek them and other documents, for example, any way to link
those identification documents to departmental reports or
incident reports that could link the identifications to an
owner and to a particular traffic stop or other encounter with
MCSO personnel.
THE COURT: Ms. Iafrate, Mr. Masterson, I assume that
PSB is -- that's part of the investiga- -- what they're doing
in their own investigation.
MR. MASTERSON: Judge, PSB can certainly do that, but
there's a couple things with respect to these identifications
that I'd like to clear up, and a couple of those were
misstatements by the monitor. And one of the misstatements by
the monitor was made on July 24th, where the monitor told the
Court that these particular documents were slated for
destruction, and had this matter not come to the monitor's
attention and they made the kind of inquiry that had been paid,
then they would have been destroyed.
THE COURT: You know, what I understood, and maybe I
misunderstood him, was that they were slated for destruction
when they were in Property, but that they weren't in Property
when he found them. I thought they were with PSB.
MR. MASTERSON: They were slated for destruction
between 2006 and 2010, between five and nine years ago, and
they were in Property.
THE COURT: Yeah, I think that was what my
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understanding was as well.
MR. MASTERSON: Then they were removed from Property,
according to MCSO policy, taken into possession by a sergeant
who was going to give a training class. He didn't give the
training class and had sought to return the IDs to Property.
Property, then having known of this litigation, brought it to
PSB's attention and here we are.
THE COURT: Yeah, that is my understanding, what
you've just said.
MR. MASTERSON: Okay. Because I was afraid that the
Court was convinced -- the monitor seemed to me to indicate
that he saved the day and saved these IDs from destruction,
when that was never going to happen.
THE COURT: No. The only thing I did understand the
monitor to say, in fairness, is that he discovered that the
MCSO wished to withhold those documents from his attention.
MR. MASTERSON: Well, that I don't know, and I don't
know whether that's an accurate statement by the monitor or
not.
THE COURT: And maybe I've misparaphrased him, but
that was my understanding, and that remains my understanding,
but I did not understand -- I did understand that at one point
they were scheduled for destruction but that they were
removed -- that was when they were in Property, and they were
removed from Property, and they weren't under any imminent risk
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of destruction at that point; they were just at an imminent
risk of non-disclosure, which is why --
MR. MASTERSON: Okay.
THE COURT: -- I ordered them to be seized.
MR. MASTERSON: I understand. Thank you, then, Judge.
The other misstatement by the monitor is -- and again,
maybe it's an implication I'm drawing from what he said -- but
he made an allegation that the Property Unit is being used as a
repository for holding away from public scrutiny or court
scrutiny documents that were obtained unscrupulously or
illegally. And I'll tell you what. I'd like the monitor to
come forth and give us the evidence that any of these IDs were
taken unscrupulously or illegally. In fact, just one. Just
come prove to us that one of them was taken away.
THE COURT: Well, is there any basis -- I think that
that's going to be at the very heart of the hearing that we're
going to have, isn't it?
MR. MASTERSON: Well, I suppose, Judge, and I suppose
we could try to determine the origin of every one of those
1459, but I think it's going to be extraordinarily difficult.
I mean, these IDs could come into the possession of MCSO in so
many different ways.
THE COURT: Well, let me just tell you my concern, and
I believe that there is some testimony when I talked to deputy
chief -- Chief Deputy Sheridan about this. There was some
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representation initially that these matters were just taken --
these identifications were taken for fraud training by only a
few officers. Then I think it became quite clear that many
officers were taking identifications as a matter of course.
They were taking -- some were taking drivers's -- not just
driver's licenses, but most of them were Mexican
identification cards printed by the Mexican government, which,
I mean, why would they forge those? And I discussed that some
with Chief Deputy Sheridan.
And then there was -- the monitor did some
investigation, as I recall, where all throughout the various --
is it districts or divisions of MCSO -- they have bins, and
officers acknowledge that they just seized these
identifications and put them in the bins without putting them
in Property, and it seems to me, in addition with the other
evidence that's been found that was disclosed prior to your
entry in this lawsuit but I'm sure you've been made aware of
that there was a rather -- or at least there's the potential of
a rather widespread practice of just seizing folks'
identification cards without legal justification for doing so,
which is one of the issues in this lawsuit. And it seems to me
that that's one of the things we're going to address at the
hearing.
Does that resolve your concern about your ability to
address that --
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MR. MASTERSON: Well --
THE COURT: -- that assumption?
MR. MASTERSON: I understand there's been allegations
that documents have been seized unlawfully, but there are many
instances in which a deputy sheriff can lawfully seize --
THE COURT: Sure.
MR. MASTERSON: -- a license plate, a driver's
license.
THE COURT: And when he does that, I presume there's
a -- or there should be a procedure by which that is accounted
for in Property or elsewhere.
MR. MASTERSON: Well, I suspect that if it came in --
it would depend on how it came into the deputy's possession.
You could have found it, found items as well.
THE COURT: And, you know, we can go through all that
if you want to, but it doesn't seem to me that there's really
an issue that -- well, we'll wait and see.
MR. MASTERSON: I guess what concerns me, Judge, is
the -- I mean, we've got a significant preliminary and final
injunction to comply with, and we're kind of getting
sidetracked from doing just that. And here's another instance
where now we're going to have to go look at 1459 individual IDs
when there's absolutely no proof, one, that any of them belong
to the plaintiffs' class. I will give you that in the few I
looked through, I found one or two Hispanic names in maybe the
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24, 25 I looked at, so I don't know whether they're in the
plaintiffs' class or not. But I can tell you an awful lot of
them were blatantly --
THE COURT: Well, I'll tell you --
MR. MASTERSON: -- horrible fabrications of driver's
licenses.
THE COURT: Well, let me just tell you, Mr. Masterson,
that to date, and I don't mean to be pejorative in any way, but
to date, your client's track record for producing requested
documents and to destroy -- is very poor. Your client has
destroyed documents that were definitely responsive to what
happened here.
The description I've got, and I haven't looked at
them, is that about half -- I think that I'm stating this
right, about half of those identifications involved members of
the plaintiff class or what appear to be members of the
plaintiff class. There are a number of others that involve
members of the plaintiff class that I've already seen that are
just unaccounted for.
And I think, it seems to me, unless you can tell me
otherwise, that I heard evidence that MCSO just took these
things from folks that they were arresting. Not everybody, to
be sure, but that enough, and certainly more than Sergeant
Armendariz were doing it, and that seems to me to be a
significant -- you know, if you -- significant deprivation, or
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possibly significant deprivation of their personal property
that MCSO had no basis to take in at least some instances.
Because that information, and because those documents
which were in MCSO's possession were requested and never
returned in the underlying lawsuit, I think that plaintiffs'
class has a right to say this was another issue that would have
been raised in the underlying lawsuit if there had been
appropriate disclosure.
And so while I agree with you and I think your point
is a correct one, that we need focus on the remedy to the
plaintiff class here; we need to focus on implementing the
remedies that I've already ordered. But in addition, we need
to realize that there are other remedies that may well have
been ordered if your client would have complied with its
discovery obligations, which it admittedly did not do.
And so this hearing -- and you're right, we shouldn't
lose focus of the need for your clients to comply with existing
orders -- but this hearing is also, a major purpose of it is to
see what needs to be done to rectify the rights of the
plaintiff class in light of the fact that your client withheld
all these documents.
MR. MASTERSON: Well, I understand, and I understand
with respect to the Armendariz documents that's a concern.
What I'm focusing on are the 1459 when there's absolutely no --
not a scintilla of evidence that any of these were taken
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unlawfully or that anything unlawful was done with them, and --
THE COURT: Well, so do you want access to them? Do
you need access to them?
MR. MASTERSON: Well, if the Court is going to
compel -- well, if the Court's going to make an inquiry into
the origin of each one of these 1459 documents, I'd certainly
like to have access to whatever -- or however that inquiry is
being made.
THE COURT: Well, yeah, and perhaps you'll end up
making the inquiry. But certainly I don't think there's any
need to inquire as to all 1459, since it's my understanding
that a substantial number of them nobody contests is a member
of the plaintiff class.
But it does seem to me that you have a track record
that is at least worthy of investigation about whether or not
these identifications were correctly seized, because clearly, I
think, and I don't wish to misstate the record, but we have, I
believe, a number of officers who have indicated that they just
took those things as trophies, they hung them on the wall; and
the monitor I think did say this to me, Chief Martinez, you can
correct me if I'm wrong, that in their interviews out in the
districts they just took those things and threw them in a bin.
And they called the bin something like the unicorn bin. And I
forget the reason why, but it was something like make-believe
that they'd ever be put into Property or something. And that
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was not the statement of my monitor; that was the statement of
your officers.
And so it seems to me that there is evidence that
there has been, at least among a number of MCSO officers, an
ongoing practice of doing this kind of thing, which is a
substantial deprivation, or could be a substantial deprivation
of rights of the plaintiff class. And simply because it may be
problematic now for you to find out where those licenses came
from, you know, if you had done it -- and again, I don't know,
but it seems to me that if you would have recorded these in
Property pursuant to an arrest, or a stop, which would be
normal police procedure, it wouldn't be problematic for you to
say: This document was seized in connection with this stop.
But you didn't do that, so now you have to go back and see who
you stopped, and where and why, and it seems to me that that is
not an unreasonable request if in fact plaintiffs make it.
But you're certainly entitled, Mr. Masterson, to look
at those documents in conjunction with the plaintiffs, exclude
ones that really don't seem to implicate members of the
plaintiff class. And maybe you can make stipulations as to
others; it will make your life more easy. All I want to do in
this proceeding is figure out what we need to do to provide you
access, the plaintiffs access, and figure out where we need to
go from here so that we can proceed.
MR. MASTERSON: All right. So let me understand: Are
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we free, then, to meet with the plaintiffs to discuss how we're
going to go through these documents?
THE COURT: Sure. Absolutely.
MR. MASTERSON: In addition, there's an awful large --
I shouldn't say that. The ones I looked at, a large number of
them were blatantly false documents. A driver's license,
somebody was apparently trying to -- my guess, trying to buy
booze and made themselves to be 25, and it was a horrible
fabrication of an Arizona driver's license. There's a lot of
those. So I think we could weed --
THE COURT: By all means, weed --
MR. MASTERSON: -- weed those out, too.
THE COURT: Yes. Meet with plaintiffs, and if, you
know, they can agree that they should be weeded out, I think
that, you know. I will tell you for the benefit of what
history says is that it seems to me that counsel have --
despite the sharp division of legal authority and legal
positions in this lawsuit, counsel have been able, at least
frequently, to be very professional in terms of limiting the
issues and simplifying them, which I think -- I have no reason
to think you can't do here.
MR. MASTERSON: Thank you, Judge. That's all I have
on these issues.
THE COURT: All right.
Ms. Wang.
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MS. WANG: Your Honor, may I respond briefly to some
of the things Mr. Masterson has presented?
THE COURT: Yes.
MS. WANG: Thank you. Your Honor, earlier I responded
to the Court's narrow question about whether plaintiffs are
seeking discovery of the 1459 IDs. Mr. Masterson brought up an
important point, which is what happened with those IDs once
their existence was discovered by the defendants.
To be clear, plaintiffs will also seek discovery into
those matters. We think those also go centrally to compliance
and defendants' compliance in this case, including whether they
have forthrightly come forward with evidence and whether they
have failed to comply with the Court's orders regarding
disclosure of things like the IDs, and whether they have taken
inappropriate steps to fail to disclose those documents.
We think those issues are centrally important to this
case and to the rights of the plaintiff class, and we do intend
to take discovery prior to the resumption of the evidentiary
hearing on September 22nd.
We would be happy to meet and confer with the
defendants. For the past year or more, we have attempted to
work with them on various things and recently have asked for
their assistance in trying to locate people whose rights were
violated through violations of the preliminary injunction
order, and we would very much hope that the defendants would be
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cooperative in trying to come up with a way to identify those
victims.
THE COURT: Thank you.
MS. WANG: Thank you.
THE COURT: Anybody else want to be heard on the 1500
IDs?
MR. WALKER: I have nothing to add, Your Honor.
THE COURT: All right. If you have nothing to add,
you can simply remain quiet; if you have something you want to
say, signal me.
What about the 50 hard drives and Mr. Mackiewicz's
hard drive? Mr. Gomez, do you want to come forward and tell us
what the government has done and what it intends to do?
I will say that I received the visit of a court
security officer prior to this hearing, just so everybody
knows. The court security officer said that while he had been
initially contacted through the Department of Justice, I could
take -- I could assert jurisdiction over him so that he
responds to my commands and not yours, Mr. Gomez.
MR. GOMEZ: That's correct, Your Honor.
THE COURT: All right. So do you want to tell us what
you have done to date?
MR. GOMEZ: We have contacted -- the Department of
Justice has contacted the court security office and requested
that they bring -- that two court security officers come down
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for copying of the two Banker Boxes and one hard drive --
THE COURT: Well --
MR. GOMEZ: -- of the Montgomery material.
THE COURT: -- there are 51 hard drives of the
Montgomery material.
MR. GOMEZ: That's correct, Your Honor.
THE COURT: So which hard drive are you talking about?
MR. GOMEZ: Back in May, the end of May, there had
been initially identified two Banker Boxes and one hard drive.
And then I believe at a subsequent time -- it may have been
even in July, but it could have been in June -- there were 50
additional hard drives, I believe, that were identified as
being Montgomery hard drives, at least as I was informed by the
court monitor.
The government initially had intended to -- its review
was to look at the two Banker Boxes and the one hard drive, and
then when it became aware that there were 50 additional
hard drives, some of which we don't know what the volume is in
each of the hard drives, we received an inventory from the
U.S. Marshals Service as to the hard drives, but no one has
opened those hard drives.
The client entities that I am dealing with for the
United States have decided that they would like to look -- go
forward with their review as to the two Banker Boxes and the
one hard drive and determine whether there's either property of
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the United States or classified material in those documents,
and at that point make a determination whether they would then
proceed to review the -- copy and review the 50 additional
hard drives.
I just want to say, Your Honor, that it's -- there's
also the possibility that while this review is going on, my
office at the Department of Justice is giving consideration as
to whether if a copy is made of the 50 hard drives, that either
someone from -- myself or someone -- myself and maybe some
other U.S. representatives may come, if it's agreeable to the
court monitor, to just look at some of the contents of those
hard drives if they're going to be copied.
One concern that the United States has, at least at
this point, is that we believe those are original hard drives,
they're not a copy of them at this point, and if the United
States -- if I were to go, and I have the technical people here
with me today, but if we were to go and open up any of those
hard drives, we potentially could change the metadata in the
hard drive, and while that may or may not be an issue, it may
not be an issue for the court monitor or for anyone else, if it
were to be an issue, we don't want to interject the United
States in that kind of a problem.
So I think at this point, just to be clear, the United
States will look at the -- is looking at -- we've copied the
two Banker Boxes and one hard drive. A representative of the
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defendant was present yesterday at the FBI office along with, I
believe, Chief Sharon Kiyler was present from the court monitor
while we conducted the copying, and so we've made that copy and
we'll be taking that material back to Washington.
We will Bate number all the hard copy pages. We've
put them on PDFs. That way, if we do find something, we'll be
able to point -- be able to provide a Bate number page to the
Court or to the court monitor as to what material, if it turns
out there's material the United States should take custody or
restrict access to.
THE COURT: Well, let me ask a question.
Ms. Iafrate, were you going to ask a question?
MS. IAFRATE: I was actually going to inform the Court
regarding my knowledge of what happened yesterday.
THE COURT: All right.
MS. IAFRATE: Your Honor, my understanding was that
the Department of Justice --
THE COURT: Were you there? Did you --
MS. IAFRATE: I was not; a representative from my
office was there on my behalf. My understanding was that the
50 hard drives were going to be forensically copied yesterday.
That did not occur. Instead, what happened was the hard drive
that was taken from Chief Knight's office recently was the
hard drive that was indeed copied.
If you recall, Your Honor, the last time you and I
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spoke in court I had concerns regarding that hard drive because
it contains a vast amount of other things other than just
Montgomery material. And so you had asked me if I would like
first crack at that hard drive in order to catalog regarding
what's on it, what's relevant, what's not. That has not
occurred, obviously, prior to the copying of that one
hard drive.
My understanding was that yesterday and today was set
aside for the forensic copying of those 50 hard drives, which
did not occur. I now have concern regarding the one that was
copied, that it has other materials on it that you had provided
me the opportunity to review prior to any copying.
THE COURT: I don't -- I mean, I'm not questioning
what you're saying, Ms. Iafrate. I don't have specific
recollection of what you're saying, but I don't question it.
Did you take me up on that or not?
MS. IAFRATE: The hard drive --
THE COURT: Did you say you wanted to have first crack
at the --
MS. IAFRATE: I did say that, yes, and you said very
well.
THE COURT: Okay. Well, I'll confirm that. If that's
so, then I'm going to require the FBI, before it -- or the
Department of Justice, before it does anything, to provide a
copy to Ms. Iafrate. And I'll give you the chance to review it
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and to claim that certain materials don't have anything to do
with the materials provided by Montgomery and provide that
claim to the -- to me and to the monitor and the Department of
Justice. And I'll ask the Department of Justice at that time
to review -- to restrict your review to the materials that
Ms. Iafrate identifies as not being otherwise related.
Which doesn't mean, if you contest the other
materials, that we can't raise that at a later -- at a later
date. But one of the things I am going to require,
Ms. Iafrate, is that you do what you're going to do with
dispatch.
MS. IAFRATE: Understood.
THE COURT: You have a problem with that, Mr. Gomez?
You wish to be heard on it?
MR. GOMEZ: May I confer just with one of the court
security officers, in terms of the technical --
THE COURT: Yes.
MR. GOMEZ: -- copying?
(Pause in proceedings.)
CHIEF MARTINEZ: Your Honor, this is Chief Martinez.
May I add some information to what he said?
THE COURT: I'm sorry, Chief. What did you say?
CHIEF MARTINEZ: May I add some information to what
has been said about the 50 hard drives and the hard drives?
THE COURT: Yes. But keep in mind, Chief, that
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because you're on a speakerphone, sometimes there's a
distortion and you cut out, so if you'd speak slowly and
clearly, that would be helpful.
CHIEF MARTINEZ: Yes, sir.
The copy that was the hard drive that was copied
yesterday for Mr. Gomez was the hard drive that was provided to
us back on April 24th or April 27th by Chief Knight.
THE COURT: So it's not --
CHIEF MARTINEZ: They received a copy of the
hard drive.
THE COURT: All right. So it is not the Mackiewicz
hard drive taken from Chief Knight's office; it is the material
previously provided by plaintiffs.
CHIEF MARTINEZ: Yes, sir.
THE COURT: I'm sorry, by defendants.
CHIEF MARTINEZ: The chief -- I'm sorry, Your Honor.
The Chief Knight slash Mackiewicz hard drive is in the process
of being forensically copied. They haven't finished doing the
copying yet because it takes many hours, and that still has not
been fully copied yet.
THE COURT: All right. So you've already reviewed
this material.
MS. IAFRATE: I am not concerned, if that is indeed
the hard drive that was copied. I was under the impression
that it was the one that was seized from Chief Knight's office.
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THE COURT: All right. So you can go ahead and review
everything you've got.
MR. GOMEZ: Yes, Your Honor.
THE COURT: But that does leave sort of the elephant
in the room about what do you want to -- I mean, the only
reason -- well, let me restate what appears to be the state of
things at this moment, and I can't say it is the state of
things because things are still in flux. But it appears, based
on documents that we have seen, that MCSO actually took
possession of 50 hard drives provided to them by
Mr. Montgomery, which he represented to be CIA-harvested
material.
Those 50 hard drives were brought here to Maricopa
County and placed in an evidence locker. We don't have
absolute confirmation that the 50 hard drives we have seized
are those hard drives, but it appears that that, at least for
present purposes, is not contested.
The reason why you're involved at all, of course, is
because Ms. Iafrate contacted you and said that MCSO had this
material that had been represented to them as having been taken
from the CIA. And if that is true with respect to the one
hard drive that you now have, it may also be true with respect
to the 50 hard drives that we now have.
We also have documents, but they are only documents,
which purport to be communications between members of the MCSO
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and Mr. Montgomery in which the MCSO expresses severe doubts
about the credibility of what Mr. Montgomery told them about
the contents of those hard drives. So I can't represent to you
that those 50 hard drives in fact have CIA-harvested material
on them, but, of course, I can't represent to you that they
don't.
But I can say that I don't intend to wait for this
lawsuit for the Department of Justice to decide whether or not
it's going to review those 50 hard drives, and if they've got
secure material on them, they've got secure material on them,
but I'm going to make them available to the plaintiffs and to
the defendants if they want to review the material on that
hard drive.
And I understand your concern about not, you know,
altering the metadata that's on those hard drives, and I don't
know computer stuff, but I do understand that we can make ghost
copies of those existing hard drives and make them available to
both parties, or all parties who may want to look at them, so
that we can establish whether in fact those are the materials
provided by Mr. Montgomery to the MCSO, and if in fact they
contain what Mr. Montgomery purported to the MCSO that they
contained.
It may be, as I said last time, that the parties may
be able to stipulate that those are the -- for example, that
those are the materials provided by Montgomery to the MCSO, and
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that they don't seem to contain the material that Montgomery
indicated that they did. But I don't know that the parties can
stipulate to that, or that they will care to.
And if you have a concern that you have -- that there
is secured material on them, we want to accommodate that
concern. But we're not going to sit here while you decide, you
know, for months while you decide whether or not you're going
to look at them.
Do you understand what I'm saying?
MR. GOMEZ: I understand, Your Honor.
THE COURT: So how do you propose that we proceed?
MR. GOMEZ: Well, the client entities that I'm
speaking to, you know, from the United States, have expressly,
and reaffirmed yesterday, that they want to take this one step
at a time and look at the two Banker Boxes and the one
hard drive, and if there's material on there, make a
determination of how best to proceed.
Those are my instructions from the client.
THE COURT: All right. Well, would you please tell
your client entities that I have no intention of waiting on
their decision to proceed or not to proceed.
MR. GOMEZ: Yes, Your Honor.
THE COURT: That we are going to go forward. That we
will, of course, accommodate the United States Government to
the extent that they have reasonable concerns that there may be
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material on there that needs to be protected, but that doesn't
mean we're just going to sit here.
MR. GOMEZ: Yes, Your Honor.
THE COURT: All right. You can stay right there,
because Mr. Masterson has something he wants to say.
MR. MASTERSON: Just a question, Judge: Do we get to
know who these client entities are, or is that top secret for
some reason?
THE COURT: I don't see why you can't know who those
client entities are.
MR. GOMEZ: If there is classified information in the
material, then it would be -- we would not be able to identify
the entity or entities, so at this point we -- until we look at
the material, if in fact the material is of the nature where an
entity can't be identified because it's classified, then we
can't disclose, at least at this point --
THE COURT: And what law are you basing that on?
MR. GOMEZ: Well, based on the -- if the material is
in fact classified and the information as to the, you know,
executive order, I at the moment have -- I think it's 12386,
but I'll have to confirm the actual number, if the entity can't
be identified because it's classified, then along with the
other substantive material it, by executive order, is precluded
from disclosure.
THE COURT: Well, I guess I'm not going to make you
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disclose that today, but an executive order I'm not sure binds
this Court. We'll see.
MR. GOMEZ: Yes, Your Honor.
THE COURT: The other thing that I guess I want to
know is: Do your client entities have any idea how long it's
going to be before they get back to us whether they think
they've got any secured material in that material they're
reviewing?
MR. GOMEZ: I haven't been given a time line, but I've
expressed to them that, you know, the proceeding -- this case
is proceeding forward, and there are, in fact, at least as I
understand it, matters that are going forward as early as
September 22nd, and that there's not much time --
THE COURT: Well, let me just say, it is going forward
on September 22nd.
MR. GOMEZ: Yes, Your Honor.
THE COURT: And let me also just say, and maybe we can
shortcut this, to the extent that you're only reviewing what
the defendants have already provided in April, I have the sense
that it has been thoroughly reviewed already by plaintiffs and
defendants. Do any of you want to characterize --
Ms. Iafrate, you may have the best view of any of
this. Is there anything in there that you think may be secured
material?
MS. IAFRATE: Your Honor, I don't feel confident to
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determine what's confidential and what's not confidential
information.
THE COURT: Have you reviewed it all?
MS. IAFRATE: I have.
THE COURT: Ms. Wang, have you reviewed it all?
MS. WANG: I have not personally, but our team has, I
believe.
THE COURT: Okay. Well, you can tell the United
States Government, then, and whatever entities they are,
they're well behind the eight ball in reviewing what this
material is. And so again, I'm glad to accommodate national
security interests, if there are any, but I think we need to
move forward.
MR. GOMEZ: Yes, Your Honor.
THE COURT: Okay. Now, with respect to the 50
hard drives, Ms. Iafrate, Mr. Masterson, Ms. Wang, do you want
access to those now, or do you want to give the United States a
little bit of time? I mean, you've had them for many, many
months, or years, but I don't know whether they're the topic of
a current investigation from MCSO or any other Arizona or
national law enforcement that you would have provided access to
for --
MS. IAFRATE: Your Honor, we would like access to
them, and I think that waiting until the eve of the next trial
would not be prudent --
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THE COURT: Yeah, I have no intention of doing that.
Why don't we do this? Ms. Wang, let me hear from you.
MS. WANG: Yes, Your Honor. Plaintiffs also would
like to have access. It seems like a large volume of material
to review, and so the sooner the better, in our view.
THE COURT: In addition with your discussion about the
1500 identifications, why don't you discuss with the monitor
protocols for accessing the 50 hard drives that -- and we can
see if we can limit any disruption of metadata or anything else
that may be on those hard drives, if we can agree to a
procedure, and then let me know next status conference or
before and we can enter an order to provide access.
MS. IAFRATE: Your Honor, that would be fine, and we'd
be willing to work with plaintiffs and the monitor.
The one other hard drive that was seized from
Chief Knight, what protocol should I follow? Should I file
something with the Court in order to obtain access to that one
to make a copy?
THE COURT: Well, Chief Martinez, did you say that the
monitor is already making a forensic copy?
CHIEF MARTINEZ: Yes, Your Honor, and it should be
finalized later on today. It took, like, 90 hours to copy.
THE COURT: Okay. Why don't when do this? Why don't
we make another copy, or maybe two copies of that copy, and
give one of the copies to Ms. Iafrate.
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And then, Chief, I'm going to ask you, I'm going to
require Ms. Iafrate to review it promptly, but I'm going to ask
you not to review your forensic copy until we've given
Ms. Iafrate a chance to characterize, or at least attempt --
give you a chance to say what is on there that doesn't relate
in any way to the Montgomery matter.
CHIEF MARTINEZ: Yes, sir.
THE COURT: All right. Does that work, Ms. Iafrate?
MS. IAFRATE: Thank you.
THE COURT: Any objection with respect to that,
Ms. Wang?
MS. WANG: Your Honor, I just have one question. We
have no clue what other material is unrelated to the Montgomery
issue, but I don't know whether any of the other contents of
the hard drive that fall into that category might be relevant
to this case or to the rights of the plaintiff class.
THE COURT: Well, why don't we have, then,
Ms. Iafrate, you can do a privilege log with respect to
material that you think should be withheld, which you can
describe that material sufficient for plaintiffs to know what
it is.
Will that work?
MS. IAFRATE: That will work.
THE COURT: All right. Thank you.
Ms. Iafrate filed this morning a document, a Notice to
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the Court Regarding Documents Provided Pursuant to Court's
Orders. I don't know if you've had a chance to look at that,
Ms. Wang.
MS. WANG: I looked at it in a very cursory way on
Mr. Bendor's cell phone before we walked into court this
morning, Your Honor. I believe that that comports with our
understanding of what's been produced.
More broadly, I did confer with Ms. Iafrate about some
of the document productions that have not been made. She
assures me that the hard drive containing the press interviews
or press conferences given by Sheriff Arpaio is on its way to
plaintiffs. That was a bit late, but that's all right; I'm
assured it's on its way.
And there were two other issues where documents have
not been produced yet. I don't know if the Court wants --
THE COURT: And what are those?
MS. WANG: -- to hear about that.
THE COURT: Yes.
MS. WANG: The first, Your Honor, is the
identifications that were found in the training kit used by
Sergeant Marshall and identified by Lieutenant Kratzer. This
was a separate set of IDs. Ms. Iafrate informs me that she
does not have those, either, and that those are among the
documents that were taken into custody by the U.S. Marshals.
Plaintiffs would like get a copy of those.
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And then secondly is the issue of the ongoing
internal -- criminal Internal Affairs investigation. That is
obviously still in dispute between the parties.
THE COURT: I thought that you'd provided that
material to the monitor.
MS. IAFRATE: I did provide it to the monitor.
THE COURT: All right. And you didn't provide it in
the general box that would give it to all parties?
MS. IAFRATE: No.
THE COURT: All right. We'll address that, then,
maybe, in conjunction with some other things in a little -- in
a minute. Don't let me forget that, Ms. Wang.
MS. WANG: Yes, Your Honor.
THE COURT: Chief Martinez, it was my understanding, I
think, and I think you were the one that had the concern about
the Kratzer IDs, bu