melendres # 1041 | apr 24 2015 sealed transcript

8/20/2019 Melendres # 1041 | Apr 24 2015 SEALED Transcript

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SEALED PROCEEDINGS, Melendres v. Arpaio, 4/24/15 1020

A P P E A R A N C E S

For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNION

FOUNDATIONImmigrants' Rights Project39 Drumm Street

San Francisco, California 94111(415) 343-0775

Stanley Young, Esq.

Hyun S. Byun, Esq.

COVINGTON & BURLING, L.L.P.333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

(650) 632-4700

Daniel J. Pochoda, Esq.

Joshua D. Bendor, Esq.AMERICAN CIVIL LIBERTIES

FOUNDATION OF ARIZONA3707 N. 7th St., Suite 235

Phoenix, Arizona 85014

(602) 650-1854

Andre I. Segura, Esq.

AMERICAN CIVIL LIBERTIES UNION

FOUNDATIONImmigrants' Rights Project

125 Broad Street, 17th FloorNew York, New York 10004

(212) 549-2676

For the Defendants: Michele M. Iafrate, Esq.

IAFRATE & ASSOCIATES649 N. 2nd Avenue

Phoenix, Arizona 85003

(602) 234-9775

For the Defendant Maricopa County:

Richard K. Walker, Esq.

WALKER & PESKIND, P.L.L.C.16100 N. 71st StreetSuite 140

Scottsdale, Arizona 85254(480) 483-6336

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 2 of 17


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P R O C E E D I N G S

MS. CLARK: Thank you, Your Honor.

Judge Snow, as you're aware, Tim Casey is under this

Court's order to assist in the transition of this case to

Ms. Iafrate and to cooperate, essentially, in regard to the

fact that he had been charged with the duty of making sure that

his client, Sheriff Arpaio and judge -- excuse me, the MCSO,

comply with this Court's order. And in that regard you'd asked

him to assist Ms. Iafrate in a continuing way in this case, and

that order is still in effect.

Mr. Casey has provided Michele Iafrate with a complete

copy of his client file in this case. Tim Casey and I are

aware of Sheriff Arpaio's testimony yesterday regarding the

Grissom matter. Tim Casey is aware of his obligations as an

officer of the court to be candid with this tribunal and to

cooperate with the Court, while at the same time remaining in

absolute and strict compliance with his ethical obligations to

his former clients, Sheriff Joe Arpaio, as well as the MCSO.

There is a letter in the file that he provided to

Ms. Iafrate from Tim Casey concerning Sheriff Arpaio. Excuse

me, a letter from Tim Casey to Sheriff Arpaio. Chief MacIntyre

was copied on that letter, as was counsel for MCSO in this

matter, Mr. Liddy.

Based on this Court's ruling regarding communications



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Mr. Casey had with Arpaio which were copied to Chief MacIntyre,

we believe that privilege may be waived as it concerns this

letter, not only because of that ruling you have made as to

Chief MacIntyre, but also as well by the testimony of Sheriff

Arpaio yesterday.

Tim Casey takes the position that this document needs

to be provided to the Court and/or to the monitor. There are

two reasons why he believes this is so. One involves his

ethical obligations under Ethical Rule 3.3 concerning candor to

the tribunal. He's familiar with Ethics Opinion 05-05

interpreting Ethical Rule 3.3, and that opinion makes it very

clear that the duty of confidentiality -- excuse me, the duty

of candor to the tribunal survives termination of the

representation.

The other reason he believes that this document must

be provided is that he believes it falls within the documents

this Court has ordered be provided to the monitor regarding the

Grissom matter.

Yesterday I wrote a letter to Ms. Iafrate and

Mr. Liddy. I e-mailed it to them last night. Ms. Iafrate

acknowledged receipt of it. It raised the issue that Tim Casey

takes the position I have just described. It also states it's

our position that Ms. Iafrate, as well as Mr. Liddy, have the

obligation under ethical 3 -- rule 3.3 to correct the testimony

of Sheriff Arpaio yesterday. We believe that that remedial



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measures required under 3.3 include providing a copy of the

letter to the Court.

What I'm suggesting at a minimum -- and by the way, I

have asked in those -- excuse me, I need to backtrack because I

sent a second letter today reiterating that point, and I was

advised by Mr. Liddy that I should copy -- last night I was

advised by Mr. Liddy that I should copy Mr. McDonald on that

letter, which I did.

I approached them today, asked them if they had read

the letter and asked them if they would be taking -- "they"

meaning Mr. Liddy and Ms. Iafrate and Mr. McDonald -- remedial

measures as required by 3.3. I have not as yet been assured

that they will.

What I'm suggesting at a minimum is that this letter

be provided to the Court in a sealed envelope, and in keeping

with some of the procedures I've heard in court in the past

from Your Honor, that this manner -- that this envelope be

provided to a magistrate assigned by the Court to review it and

determine two issues.

Number one, whether privilege has in fact been waived

or applies concerning this letter at this point in time, and,

in addition, number two, whether it falls indeed within the

scope of materials required to be provided to the monitor

pursuant to your orders yesterday. That's the record I'm

making, Your Honor.



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THE COURT: Thank you.

MR. LIDDY: Your Honor, may I be heard?

THE COURT: You may.

MR. LIDDY: Your Honor, yesterday when I heard the

par- -- a portion of the testimony of my client, Sheriff Arpaio

under the Court's examination, I, too, felt that a portion of

that needed to be corrected. I conveyed that to co-counsel.

When I left the courtroom this afternoon I conferred with my

ethics counsel, who agreed with me that I, too, under 3.3, had

an obligation to correct the record.

I came here prepared to do that. Under my opinion,

Ms. Iafrate, in her examination of Jerry Sheridan, cleaned up

the portion of Sheriff Arpaio's testimony for which I was

concerned. I now believe that the record, specifically the

Court's question of whether or not there was an investigation

of your wife and whether or not Tim Casey hired an investigator

to investigate your wife, which I understand the sheriff left

that impression -- did with me -- it's my opinion that it's not

accurate, and that was made clear in the testimony of

Chief Sheridan today under examination by Ms. Iafrate.

THE COURT: How does Mr. Sheridan's testimony clarify

what chief -- what Sheriff Arpaio testified to?

MR. LIDDY: Your Honor, I think that's a fair

question. And I would agree, if it's your implication that the

best way and proper way to correct the testimony would be to



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have Sheriff Arpaio take the stand again and give him the

opportunity to correct the testimony. If that's what the

sher- -- excuse me, if that's what the Court means, I would

agree with the Court.

THE COURT: Ms. Iafrate.

MS. IAFRATE: Your Honor, it was an answer by Sheriff

Arpaio that I believed I could correct with Chief Deputy

Sheridan explaining --

THE COURT: I don't believe that.

MS. IAFRATE: That was my intention. It was discussed

yesterday.

THE COURT: No, no. I believe that's your intention.

I do believe that's your intention. I'm not sure that Chief

Deputy Sheridan's testimony can clarify testimony from Sheriff

Arpaio. I think he's going to have to clarify that himself, or

you and Mr. Liddy and/or Ms. Clark, representing Mr. Casey, are

going to have to clarify it.

MS. IAFRATE: Well, Your Honor, I think that you

explored the discrepancies between the testimony of Sheriff

Arpaio and Chief Deputy Sheridan after I finished my

examination of Chief Deputy Sheridan and you saw that there was

discrepancies. Each individual testified as to what they

believed to be true. Chief Deputy Sheridan was more articulate

and more on point regarding the individual examinations.

THE COURT: Ms. Clark, do you have copies of the



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letter in question?

MS. CLARK: Yes, Your Honor, I do.

THE COURT: Okay. I'm going to ask you to retain

those, and --

MS. CLARK: Judge, I provided them via e-mail to

Ms. Iafrate and Mr. Liddy last night.

MS. IAFRATE: That's incorrect. I did not receive a

copy of it until this morning.

MS. CLARK: I'm sorry. I inadvertently forgot to

attach it to the e-mail forwarding them my letter, which I then

corrected this morning before court.

In addition, that letter is part of the client file

Mr. Casey has provided to Ms. Iafrate before she became

counsel.

THE COURT: All right. Well, I will tell you what my

inclination is, and we can deal with this -- well, here's my --

I guess we don't have time for inclinations.

If Sheriff Arpaio made a misstatement, then Sheriff

Arpaio is going to have to correct it or his attorneys will

have to correct it. And I guess that what we will have to do

is provide the letter to Magistrate Judge Boyle, who is the

magistrate judge drawn in this matter, and he can inform me, if

he believes that the correction is sufficient, that the letter

need not be disclosed.

Does that meet with your ethi- -- with your view of



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your ethical responsibilities, Ms. Clark?

MS. CLARK: It's Mr. Casey's ethical obligations --

THE COURT: Yes, I'm sorry.

MS. CLARK: -- and I believe that that does.

THE COURT: Any last words from you, Mr. Liddy, on

this?

MR. LIDDY: Yes, Your Honor. I believe there are two

letters that are probative.

THE COURT: Oh.

MR. LIDDY: One from Mr. Casey to the investigator,

which would shed light on the facts of Mr. Casey's retention of

the investigator; and the second, the letter that has been

referred to by Ms. Clark that is an attorney-client letter, if

I've got the right one, from Mr. Casey to Mr. Sheridan --

excuse me, to Sheriff Arpaio, which lays out the results of the

interview and Mr. Casey's thought processes about it and why he

proceeded the way he did.

THE COURT: Do you disagree with that, Ms. Clark?

MS. CLARK: I'm not exactly sure which the second

letter is that he's mentioning.

THE COURT: All right. Well, here's what we'll do.

You give the first letter. You give the second letter. And we

can let -- I will give instructions to Magistrate Judge Boyle

how I view it before -- well, before you give the second

letter, why don't you identify it to Ms. Clark and to all other



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parties, just what it is.

MS. WANG: Your Honor, may plaintiffs be heard on

this?

THE COURT: You may.

MS. WANG: Your Honor, it's clear from Ms. Clark's

presentation that the letter that she's referring to and the

letter -- the second letter that Mr. Liddy is referring to

would tend to impeach Sheriff Arpaio's testimony, and we would

therefore ask to have a copy of both letters.

MR. McDONALD: Judge, can I be heard on this just for

one moment?

THE COURT: Yes.

MR. McDONALD: What happened, Your Honor yesterday

handed the sheriff a document that we hadn't prepared for, he

hadn't looked at. And you asked -- directed the question: Did

you investigate a member of my family?

There was engagement letters that addressed -- that

Mr. -- it's how you try to define it. And Chief Sheridan

covered it today. They went and interviewed the lady, but the

only reason they were interviewing the lady is because of the

accusations she'd made about your wife.

And so the alarm or the flags that everybody's sending

you up the pole is, Oho, Mr. -- the sheriff misstated because

he's talking about investigating your wife when they're really

interviewing the lady that made it. But the reason that they



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interviewed the lady that did the Facebook was because it

applied to your wife.

So I think this whole thing is an absolute mountain

over a minute molehill. It's his perception of it when they're

out there looking. He wasn't doing the investigation, but in

fact it is that simple that he -- when you were asking very

pointedly, "Has my family ever been investigated?" they're

questioning this lady that made the information to their

office, and it was about your wife.

So that is his understanding of it, but to now have

these hearings and waiving attorney-client privilege, I think

that what he said and what Chief Sheridan clarified --

THE COURT: Well, I take it you don't want me looking

at the letter.

MR. McDONALD: I honestly haven't seen the letters

yet. They were handed to me. But since I was late getting

back and I've been involved in the proceeding, I haven't

studied the letters.

THE COURT: Well, we're not going to -- here's the

deal. We're not going to resume testimony on this till June.

So we probably need to take this up when everybody's had a

chance to think about it, to review it if you have a right to

review it. And that would be you, Ms. Iafrate, not

Mr. McDonald, although you can consult with him on that, and

you can show it to him since -- if you choose to.



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MR. McDONALD: I've just been handed copies, I

think --

THE COURT: Okay. So you've already got it.

And then I'll decide how to proceed. But likely, what

I'm going to do is I will consult with Magistrate Judge Boyle.

He will determine whether, A, anything needs to be done to

correct the record; B, if it does need to be done, what needs

to be done; C, if plaintiffs are entitled to copies, and it

seems to me like those are the relevant questions.

MS. CLARK: I believe also a relevant question is

whether if there is no privilege, or even if there is

privilege, it comes within the documents that you have ordered

to be provided to the monitor.

THE COURT: Well, I think I made clear, though, that

Ms. Iafrate has a right to review those documents for

privilege.

MS. CLARK: I had asked Ms. Iafrate to either agree to

disclose the letter or to produce a privilege log for the

Court.

THE COURT: Well, do you want to review it and see if

you think it's privileged?

MS. IAFRATE: Of course, Your Honor.

THE COURT: All right. And if it's not privileged, it

seems to me then this is -- this truly is a tempest in a

teapot. You can provide the letter and on we'll go, determine



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whether or not there needs to be any corrective statement and

the monitor will have the access to the document.

If you determine that this is privileged, then we can

take up this matter. And if you have any questions on it,

let's tee it up so that we can address it on May 8th.

All right?

MS. CLARK: Judge, just so I'm clear, I've heard

discussion about a deposition of Mr. Casey, and I'm assuming

that that would be put off until after May 8th so there would

be a ruling?

THE COURT: Oh, yes.

MS. CLARK: Okay.

THE COURT: May 8th is the earliest date I'm going to

rule on whether or not Mr. Casey and/or Mr. Liddy will be

giving depositions.

MS. CLARK: Thank you for that.

THE COURT: Okay.

MR. LIDDY: Your Honor, I just want to make perfectly

clear for the record that it is my perception that the sheriff

made a mistake when he answered the question in a way that I

believe is not accurate, and that I in no way am implying to

this Court that the sheriff intentionally answered that

question in a way that I deem to be inaccurate.

THE COURT: I understand that, and I'm not going to --

you know, I don't have any intention of making a bigger matter



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out of this than it is. I also don't have any intention of

making a smaller matter out of it than it is.

MS. CLARK: Judge, if I may be heard on that.

THE COURT: Yes.

MS. CLARK: Mr. Liddy informed me -- in the presence

of Mr. Casey, who heard it, too -- that it was his opinion that

the testimony was false, although he believed that it was not

intentionally false. That's what he told me yesterday, and

it's also what he told me -- he, Mr. Liddy -- at the start of

court today. I've been informed that he also made a very

similar statement to Mr. McDonald. Mr. McDonald informed me of

that.

THE COURT: All right. But we're not really here

dealing with the credibility of Mr. Liddy.

MS. CLARK: No.

THE COURT: And so --

MS. CLARK: But it does guide the remedial measures

duties.

MR. LIDDY: Your Honor, the credibility of Mr. Liddy

is important on the record, and I came before this Court

moments ago to say that when I heard the testimony, I believed

it needed to be corrected. It was not accurate.

THE COURT: Okay. Aren't you glad it's the weekend.

Anything else that we need to raise?

MS. IAFRATE: No, Your Honor.



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MS. WANG: No, Your Honor. Thank you.

MR. WALKER: No, Your Honor.

MR. McDONALD: Judge, one last question. Could we

move that hearing on the 8th up earlier? I notice that I had a

10:30 hearing. If we could go at 9:00 instead of 10:00, if

your schedule would accommodate.

THE COURT: Does anybody object to 9 o'clock on the

8th as opposed to 10 o'clock?

MS. WANG: Yeah, that's fine, Your Honor.

THE COURT: 9 o'clock.

(Proceedings recessed at 5:55 p.m.)



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C E R T I F I C A T E

I, GARY MOLL, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 27th day of April,

2015.

s/Gary Moll


melendres # 1041 | apr 24 2015 sealed transcript

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