melendres # 1319 | d.ariz._2-07-cv-02513_1319

8/20/2019 Melendres # 1319 | D.Ariz._2-07-cv-02513_1319

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Cecillia D. Wang ( Pro Hac Vice)

[email protected]

ACLU Foundation

Immigrants’ Rights Project

39 Drumm Street

San Francisco, California 94111Telephone: (415) 343-0775

Facsimile: (415) 395-0950

Daniel J. Pochoda

[email protected]

ACLU Foundation of Arizona

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Attorneys for Plaintiffs (Additional attorneys

for Plaintiffs listed on next page)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

et al.,

)

)

CV-07-2513-PHX-GMS

) PLAINTIFFS’ MOTION TO

Plaintiff(s), ) COMPEL TESTIMONY RE:

) JULY 17, 2015 MEETING

v. ) AND MCSO’S NONDISCLOSURE

) OF THE “1500 IDS”

Joseph M. Arpaio, et al., )

)

Defendants(s). )

)

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 1 of 11


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Additional Attorneys for Plaintiffs:

Andre I. Segura ( Pro Hac Vice)

[email protected]

ACLU Foundation

Immigrants’ Rights Project125 Broad Street, 17th Floor

New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654

Priscilla G. Dodson ( Pro Hac Vice)

[email protected]

Covington & Burling LLP

1201 Pennsylvania AvenueWashington, DC 20004Telephone: (202) 662-5996

Facsimile: (202) 778-5996

Anne Lai ( Pro Hac Vice)

[email protected]

401 E. Peltason, Suite 3500

Irvine, CA 92697-8000

Telephone: (949) 824-9894Facsimile: (949) 824-0066

Jorge M. Castillo ( Pro Hac Vice)

[email protected]

Mexican American Legal Defense and

Educational Fund

634 South Spring Street, 11th FloorLos Angeles, California 90014

Telephone: (213) 629-2512Facsimile: (213) 629-0266

Stanley Young ( Pro Hac Vice)

[email protected]

Michelle L. Morin ( Pro Hac Vice)

[email protected]

Hyun S. Byun ( Pro Hac Vice)

[email protected]

Covington & Burling LLP333 Twin Dolphin Drive

Suite 700

Redwood Shores, CA 94065-1418

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

Tammy Albarran ( Pro Hac Vice)

[email protected]

Lauren E. Pedley

[email protected] ( Pro Hac Vice)

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Telephone: (415) 591-7066

Facsimile: (415) 955-6566



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Plaintiffs hereby move to compel Defendants and members of the Maricopa

County Sheriff’s Office (“MCSO”) to respond to Plaintiffs’ questioning about (1)

discussions that occurred between MCSO personnel and counsel on Friday, July 17,

2015 regarding approximately 1,459 identification documents that had been turned in

by Sergeant Jon Knapp (hereinafter the “1,500 IDs”); and (2) any other discussions

MCSO had with counsel regarding nondisclosure of the 1500 IDs to the Monitor team

in the lead up to the Monitor’s site visit on July 20-24, 2015. Counsel for Defendants

have instructed MCSO witnesses not to answer questions about this subject on grounds

of attorney-client privilege. Any privilege that may have existed in those

communications, however, has been waived.

I. Factual Background

On or around July 8, 2015, MCSO personnel in the Professional Standards

Bureau (“PSB”) learned that Sergeant Jon Knapp had attempted to turn in a very large

number of identification documents to Property and Evidence, apparently for

destruction. Rough Dep. of Steve Bailey, Lai Decl. Ex. 1 (“Bailey Dep.”) at 161:2-21;

Dep. of Kimberly Seagraves, Lai Decl. Ex. 2 (“Seagraves Dep.”) at 89:22-92:21.

Given the history of problems involving the handling of identification documents by

the MCSO in this litigation, Captain Bailey believed that the Monitor would want to

know about this incident. Bailey Dep. at 164:6-15, 225:11-16, 235:19-25. Further, this

Court had issued an order on February 12, 2015, of which PSB personnel were aware,

that required Defendants to produce “[c]opies of identification documents seized by

MCSO personnel from apparent members of the Plaintiff Class.” Doc. 881 at 2. See

Seagraves Dep. at 117:4-119:1 (testifying that she was aware of the order when shelearned of the 1500 IDs and believed, under the order, that IDs needed to be produced

to Plaintiffs), 121:22-123:19 (order was discussed at July 17 meeting); Bailey Dep. at

236:6-19. Captain Bailey of PSB began an initial investigation into Sgt. Knapp and the

1500 IDs, but then, at the direction of Chief Deputy Gerald Sheridan, suspended the



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investigation. Bailey Dep. at 171:21-172:13, 224:25-225:4, Interview of Captain Steve

Bailey by Chief Donald Anders, Lai Decl. Ex. 3 (“Bailey Monitor Interview Tr.”) at

WAI 17014:7-17016:14.

On July 17, 2015, MCSO held a meeting to prepare for the Monitor’s site visit

scheduled for July 20-24, 2015. Bailey Dep. at 181:7-14 (characterizing meeting as a

“rehearsal meeting” for site visit), 183:2-12. Chief Deputy Sheridan, Captain Bailey,

Lieutenants Seagraves and Kratzer, Sergeants Bone, Sparman, and Bocchino, PSB

administrative assistant Lauren Sanchez, and Defendants’ counsel Michele Iafrate

were present at the meeting. Bailey Dep. at 181:7-9, 181:15-182:12; Seagraves Dep. at

104:7-12. During the meeting, the subject of the 1500 IDs was discussed. Bailey Dep.

at 181:7-9, 207:2-14, 210:5-212:18; Seagraves Dep. at 106:14-109:18.

Subsequently, on July 20, 2015, MCSO, together with Ms. Iafrate, met with

members of the Monitor team. Seagraves Dep. at 111:12-21. After discussing two

other cases involving identification documents, Chief Sherry Kiyler of the Monitor

team asked if there were “any other identifications that had been discovered.”

Seagraves Dep. at 88:11-25 (describing other ID cases), 111:22-112:13 (describing

colloquy with Kiyler on July 20). Captain Bailey responded no. Seagraves Dep. at

112:14-20, Bailey Dep. at 224:10-11. Lieutenant Seagraves acknowledged in her

deposition testimony that this statement was not accurate at the time. Seagraves

112:24-113:6.1

Captain Bailey testified that he had been directed not to disclose the existence

of the 1500 IDs to the Monitor team at the July 17 meeting. Bailey Dep. at 199:10-16,

204:5-14. However, he stated that neither Chief Deputy Sheridan, nor the lieutenants

1 Captain Bailey testified at his deposition that Chief Kiyler’s question was whether

there were any other “pending” cases involving IDs. Bailey Dep. at 224:6-14. Hetestified that he stands by his answer to Chief Kiyler that there were none. Bailey Dep.224:17-225:22.



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present, gave the direction, and no one else at the meeting would have given such a

direction. Bailey Dep. at 198:10-202:18. When Captain Bailey was asked if Ms. Iafrate

had given the instruction during his deposition, defense counsel asserted privilege and

instructed Captain Bailey not to respond. Bailey Dep. at 204:15-28. Similarly, during

Lt. Seagraves’ deposition, she testified that a direction was given not to disclose the

IDs, but that neither Captain Bailey nor any other MCSO personnel gave the direction.

Seagraves Dep. at 115:23-117:3. Defense counsel instructed her not to answer

questions about the instruction and who gave it. Seagraves Dep. at 115:10-20.

At the close of Lt. Seagraves’ deposition, Charles Jirauch, who represents

Maricopa County, elicited the following testimony from Lt. Seagraves:

Q. Okay. And let me talk about one other issue that came up, and

that's the 1500 IDs and the conversation on July 17th among the

employees, the other deputies, and -- and sergeants, et cetera, about

those IDs. And then my question to you is, did you hear anything

from the sheriff's office suggesting that they wanted to hide or

destroy those, permanently hide or destroy those IDs?

A. No.

Q. Nothing at all?

A. No.

Q. So what you heard, and correct me if I'm wrong, is conversation

about, we don't know what we got here, and we got to figure it out.

Is that what you heard?

A. Yes.

Seagraves Dep. at 315:6-21.2

//

2 Though counsel for Maricopa County conducted this portion of the examination,

counsel for Sheriff Arpaio was also present and did not object.



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II. Argument

The attorney-client privilege is “strictly construed” and the burden of proving

that it applies rests “with the party asserting it.” Weil v. Inv./Indicators, Research &

Mgmt., Inc., 647 F.2d 18, 24–25 (9th Cir. 1981). In this case, Defendants have waived

any privilege that existed as to communications about the 1500 IDs at the July 17,

2015 meeting—as well as any other communications with counsel about nondisclosure

of the IDs to the Monitor team—by voluntarily disclosing the content of counsel’s

advice and statements of MCSO personnel during the July 17 meeting.3

A. Defendants waived any attorney-client privilege by disclosing thecontents of counsel’s advice on July 17, 2015

It is well established that voluntary disclosure of privileged communication

constitutes a waiver of privilege, not only as to the communication that is disclosed,

but as to all other communications on the same subject. See United States v. Richey,

632 F.3d 559, 566 (9th Cir. 2011) (“Voluntary disclosure of privileged

communications constitutes waiver of the privilege for all other communications on

the same subject.”); In re Sealed Case, 877 F.2d 976, 980-981 (D.C. Cir. 1989)

(disclosure of one of six documents related to same subject matter waived disclosure to

all). Federal Rule of Evidence 502(a) provides where that a disclosure made during a

federal proceeding waives attorney-client privilege, the waiver extends also to

undisclosed communications if “(1) the waiver is intentional, (2) the disclosed and

undisclosed communications or information concern the same subject matter; and (3)

they ought in fairness to be considered together.” Fed. R. Evid. 502(a); see also Chiron

3 By filing this motion, Plaintiffs do not waive any other arguments, based on positionsDefendants may take in the future or additional information that may come to light,including that Defendants have waived attorney-client privilege by relying on adviceof counsel as a defense, see Rock River Commc’ns, Inc. v. Universal Music Grp., Inc.,745 F.3d 343, 353 (9th Cir. 2014), or that any attorney-client communications on thissubject are discoverable under the crime-fraud exception, see In re Grand Jury

Proceedings, 87 F.3d 377, 381 (9th Cir. 1996).



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Corp. v. Genentech, Inc., 179 F. Supp. 2d 1182, 1186 (E.D. Cal. 2001) (“[T]he scope

of the waiver is governed by a rule of fairness.”) (internal quotation omitted).

As Defendants have attempted to do before in this lawsuit, they seek to gain an

improper advantage here through a selective waver. Both Captain Bailey and Lt.

Seagraves reported that they were advised during the July 17, 2015 meeting not to

reveal their discovery of the 1500 IDs to the Monitor team during the site visit meeting

on July 20. Supra at 2-3. They also reported that this direction did not come from any

other MCSO personnel. Id. The only other person in the room was Ms. Iafrate. Id.

Though Defendants continue to assert privilege over who gave the direction, the

identity of the speaker in an attorney-client communication is not itself privileged. For

example, courts have held that, under Fed. R. Civ. P. 26(b)(5), that when a party

withholds otherwise discoverable information on grounds of privilege, the party must

provide a detailed privilege log that “consists of a description of responsive material

withheld, the identity and position of its author, the date it was written, the identity and

position of all . . . recipients,” and other information. United States v. Union Pac. R.

Co., No. CIV06-1740FCDKJM, 2007 WL 1500551, at *3 (E.D. Cal. May 23, 2007)

(emphasis added); see also Robinson v. Cnty. of San Joaquin, No. 2:12-CV-2783 MCE

GGH, 2014 WL 3845775, at *1 (E.D. Cal. July 31, 2014) (citing W.W. Schwarzer,

A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 11:1919). It is

instead the underlying advice that is privileged.

Defendants have effectively disclosed the core of the advice that Ms. Iafrate

gave MCSO during the July 17 meeting. Having opted to disclose the substance of

that instruction from her, Defendants cannot now obstruct Plaintiffs’ discovery into thedetails of what she said or what explanation or qualifications she might have

communicated in connection with her instruction by refusing to confirm that it was

Ms. Iafrate who gave the direction. There is no question here that the disclosure of Ms.

Iafrate’s instruction was intentional and that Plaintiffs seek to question MCSO



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witnesses on information about the same subject matter as the communications that

were disclosed, i.e., whether the existence of the 1500 IDs should be revealed to the

Monitor team. As the Ninth Circuit has made clear, a party may not use attorney-client

communications “both as a sword and a shield.” Chevron Corp. v. Pennzoil Co., 974

F.2d 1156, 1162 (9th Cir. 1992). Fairness also requires that the disclosed and non-

disclosed information be considered together.

B. Defendants waived any attorney-client privilege by selectivelydisclosing discussions with counsel about the 1500 IDs on July 17,2015

Attorney-client privilege has been waived for the additional reason that

Defendants have selectively disclosed statements made by MCSO personnel in Ms.

Iafrate’s presence during the July 17, 2015 meeting.

During Lt. Seagraves’ deposition, defense counsel elicited testimony from Lt.

Seagraves that she “did not hear anything” from her colleagues at MCSO on July 17

“suggesting that they wanted to . . . permanently hide or destroy those IDs,” only

statements to the effect of “we don’t know what we got here, and we got to figure it

out.” Seagraves Dep. at 315:6-21. The goal of that testimony was to imply that there

was no wrongdoing on the part of the Sheriff’s Office. Ms. Iafrate was present at the

meeting during this discussion. Though Defendants’ counsel had previously asserted

privilege over statements made by MCSO personnel about the IDs in the meeting

based on the fact that Ms. Iafrate was present and there to render legal advice, see, e.g.,

Bailey Monitor Interview Tr. at WAI 17018:22-17020:20; Seagraves Dep. at 109:6-16;

see also Bailey Dep. 201:7-184, during Lt. Seagraves’ deposition, counsel did not limit

4 During Captain Bailey’s deposition, taken five days later, counsel initially instructed

Captain Bailey not to answer any questions about statements made by MCSO personnel while Ms. Iafrate was present. Bailey Dep. 186:20-22. Counsel later revisedhis instruction to include just “communications made or between the witness and Ms.Iafrate and other persons present at [the July 17] meeting.” Bailey Dep. at 205:18-23.



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his questioning to statements made by MCSO not for the purpose of obtaining legal

advice. He specifically asked if she had heard anything from the Sheriff’s Office

suggesting they wanted to hide or destroy the IDs.

Defendants’ voluntary decision make representations about the entirety of what

was and what was not said by MCSO personnel during the July 17 meeting waives

privilege not only as to MCSO personnel’s statements, but all other communications

during the meeting. Fed. R. Evid. 502(a); Richey, 632 F.3d at 566. Defendants cannot

limit Plaintiffs’ discovery to only the portions of the discussion that they have self-

servingly sought to bring to the Court’s attention while concealing the other portions

behind the cloak of privilege.

III. Conclusion

In the effort to absolve themselves of wrongdoing, Defendants have disclosed a

great deal about the July 17 discussion of the 1500 IDs. “‘[W]hen [the privilege

holder’s] conduct touches a certain point of disclosure, fairness requires that his

privilege shall cease whether he intended that result or not. He cannot be allowed,

after disclosing as much as he pleases, to withhold the remainder. He may elect to

withhold or disclose, but after a certain point his election must remain final.’” Weil ,

647 F.2d at 24 (quoting VIII J. Wigmore, Evidence s 2291, at 636 (McNaughton rev.

1961)). For the foregoing reasons, the Court should grant Plaintiffs’ motion.

Dated this 10th day of September, 2015.

By: /s/ Anne Lai

Anne Lai ( Pro Hac Vice)

Cecillia D. Wang ( Pro Hac Vice)

Andre I. Segura ( Pro Hac Vice)

ACLU Foundation

Immigrants’ Rights Project



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Daniel Pochoda

ACLU Foundation of Arizona

Stanley Young ( Pro Hac Vice)

Tammy Albarran ( Pro Hac Vice)

Michelle L. Morin ( Pro Hac Vice)

Lauren E. Pedley ( Pro Hac Vice)

Hyun S. Byun ( Pro Hac Vice)

Priscilla G. Dodson ( Pro Hac Vice)

Covington & Burling, LLP

Jorge M. Castillo ( Pro Hac Vice)

Mexican American Legal Defense and

Educational Fund

Attorneys for Plaintiffs



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CERTIFICATE OF SERVICE

I hereby certify that on September 10, 2015, I electronically transmitted the

attached document to the Clerk’s Office using the CM/ECF System for filing. Notice

of this filing will be sent by e-mail to all parties by operation of the Court’s electronic

filing system or by mail as indicated on the Notice of Electronic Filing.

Dated: September 10, 2015Irvine, CA

/s/ Anne Lai



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Case 2:07-cv-02513-GMS Document 1319-1 Filed 09/10/15 Page 1 of 65


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2324

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

et al.,

)

)

CV-07-2513-PHX-GMS

) [PROPOSED] ORDER GRANTINGPlaintiff(s), ) PLAINTIFFS’ MOTION TO

) COMPEL TESTIMONY RE:v. ) JULY 17, 2015 MEETING

) AND MCSO’S NONDISCLOSURE Joseph M. Arpaio, et al., ) OF THE “1500 IDS”

)

Defendants(s). )

)

The Court, having considered Plaintiffs’ Motion to Compel Testimony Re: July

17, 2015 Meeting and MCSO’s Nondisclosure of the “1500 IDs”, and for good cause

appearing,

IT IS ORDERED that Plaintiffs Motion to Compel Testimony Re: July 17, 2015

Meeting and MCSO’s Nondisclosure of the “1500 IDs” is granted.

IT IS FURTHER ORDERED that Defendants and members of the MCSO shall

forthwith respond to Plaintiffs’ questioning about (1) discussions that occurred between

MCSO personnel and counsel on Friday, July 17, 2015 regarding approximately 1,459



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identification documents that had been turned in by Sergeant Jon Knapp (hereinafter the

“1,500 IDs”); and (2) any other discussions MCSO had with counsel regarding

nondisclosure of the 1500 IDs to the Monitor team in the lead up to the Monitor ’s site

visit on July 20-24, 2015.



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melendres # 1319 | d.ariz._2-07-cv-02513_1319

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