melendres # 1365 | plaintitfs' notice of supp auth - depo excerpts

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Cecillia D. Wang (Pro Hac Vice) [email protected] ACLU Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (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

) Plaintiff(s), ) ) PLAINTIFFS’ NOTICE OF v. ) SUPPLEMENTAL AUTHORITIES ) Joseph M. Arpaio, et al., ) ) Defendants(s). ) ) )

Case 2:07-cv-02513-GMS Document 1365 Filed 09/18/15 of 4

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Additional Attorneys for Plaintiffs:

Andre I. Segura (Pro Hac Vice) [email protected] ACLU Foundation Immigrants’ Rights Project 125 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 One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (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) 824-9894 Facsimile: (949) 824-0066

Jorge M. Castillo (Pro Hac Vice) [email protected] Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Telephone: (213) 629-2512 Facsimile: (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 LLP 333 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 (Pro Hac Vice) [email protected] Covington & Burling LLP One Front Street San Francisco, CA 94111 Telephone: (415) 591-7066 Facsimile: (415) 955-6566


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PLEASE TAKE NOTICE that Plaintiffs submit the following supplemental

authorities pursuant to the Court’s request of September 16, 2015:

1. Excerpts from transcript of Sept. 9, 2015 deposition of Sergeant Travis

Anglin, attached hereto as Exhibit A.

2. Excerpts from transcript of Sept. 8, 2015 deposition of Captain Steve

Bailey, attached hereto as Exhibit B.

3. Excerpts from transcript of Sept. 16, 2015 deposition of Tim Casey,

attached hereto as Exhibit C.

4. Excerpts from transcript of Sept. 9, 2015 deposition of Chief Deputy

Gerard Sheridan, attached hereto as Exhibit D.

RESPECTFULLY SUBMITTED this 18th day of September, 2015.

By: /s/ Michelle L. Morin Cecillia D. Wang (Pro Hac Vice) Andre I. Segura (Pro Hac Vice) ACLU Foundation Immigrants’ Rights Project

Daniel Pochoda ACLU Foundation of Arizona Anne Lai (Pro Hac Vice) 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 18, 2015 I electronically transmitted the

attached document to the Clerk’s office using the CM/ECF System for filing and

caused the attached document to be served via the CM/ECF System on all counsel of

record.

/s/ Michelle L. Morin


EXHIBIT A

Case 2:07-cv-02513-GMS Document 1365-1 Filed 09/18/15 Page 1 of 23

In The Matter Of:Melendres v

Arpaio

Sergeant Travis Anglin

September 9, 2015

Griffin & Associates Court Reporters

2398 E. Camelback Road, Suite 260 Phoenix, AZ 85016

www.arizonacourtreporters.com

602.264.2230

Original File ta090915.txt

Min-U-Script®


Griffin & Associates Court Reporters602.264.2230

Sergeant Travis Anglin - September 9, 2015

34

1 A. Yes, ma'am.

2 Q. And if we could go to the flowchart-looking

3 pages starting at MELC199933, there are three of those.

4 They also have revision footers at the bottom. Did you

5 receive these three revisions as well in your e-mail

6 exchanges with Mike Zullo --

7 A. I did.

8 Q. -- in December 2013?

9 A. Yes, ma'am.

10 Q. So you referred to a meeting and that's the

11 January 2nd, 2014, meeting?

12 A. Yes, ma'am.

13 Q. Who was at that meeting?

14 A. Sheriff Arpaio, Mike Zullo, myself,

15 Captain Bailey, Mr. Masterson, Mr. Popolizio, Mr. Liddy,

16 and Mr. Casey, and Dennis Montgomery was on

17 speakerphone.

18 MR. WOODS: When was this meeting?

19 THE WITNESS: January 2nd, 2014.

20 Q. BY MS. MORIN: So did you bring these documents

21 with you to the meeting?

22 A. I brought one of these flowcharts, probably the

23 most recent revision, and I also brought information

24 that I had received or discovered through Open Source

25 about Dennis Montgomery.




35

1 Q. Did you circulate these documents prior to the

2 meeting to anyone?

3 A. The sheriff had it.

4 Q. And by "these documents," I mean all of these

5 timeline revisions and the matrix revisions.

6 A. No, ma'am. I believe I just brought one

7 version of this -- the flowchart.

8 Q. Mm-hm.

9 A. And I know the sheriff had that. I don't

10 believe that I brought the spreadsheets to that meeting.

11 Q. And when we say "spreadsheets," we are looking

12 at the documents with the Bates number MELC199917?

13 A. I am.

14 Q. Okay, just to be clear.

15 So did the sheriff already have the timeline

16 spreadsheets prior to the meeting?

17 MR. MASTERSON: Foundation.

18 THE WITNESS: I don't know.

19 MR. WALKER: Join.

20 Q. BY MS. MORIN: Okay. Did you ever circulate

21 those to him after?

22 A. I don't believe that I did.

23 Q. Okay. Do you believe that someone did?

24 A. I don't know the answer.

25 Q. So if we look at the last page of the




36

1 flowchart, I'll call it, it says Revision 2.0 at the

2 bottom, Bates number 935. Do you see that?

3 A. Yes, ma'am.

4 Q. Is that the document that you brought to the

5 meeting?

6 A. I believe so.

7 Q. Okay. And that's the document that you asked

8 Dennis Montgomery about on the phone?

9 A. Correct.

10 Q. And I see the top box in the middle says,

11 "G. Murray Snow, Federal Judge, Arpaio Case 07/22/2009."

12 Do you see that?

13 A. I do.

14 Q. Did you ask him about that box?

15 A. No.

16 Q. And below that there is the Covington Burling

17 Law Firm 05/06/2010 box. It also says "Melendres versus

18 Sheriff Arpaio," and it has a case number in it.

19 Do you see that?

20 A. I do.

21 Q. Did you ask him about that box?

22 A. No, ma'am.

23 Q. So did you wonder why and how these boxes are

24 on this document?

25 A. I did.




37

1 Q. And how did that come up in the meeting?

2 A. I asked in a general sense what information he

3 used to complete this form.

4 Q. Okay. And what did he say?

5 A. He didn't give me an answer. He would talk

6 around the answer. To my knowledge, he's never produced

7 an explanation as to how he could come up with this

8 information.

9 Q. Did anyone else at that meeting ask questions

10 about this document?

11 A. Not that I recall.

12 Q. Nobody wondered at that meeting how he got a

13 document with -- or how he created a document with these

14 names and these other references on it?

15 MR. WALKER: Object to the form.

16 MR. WOODS: Foundation.

17 MR. MASTERSON: Join.

18 THE WITNESS: I don't know.

19 Q. BY MS. MORIN: Let me rephrase that. You're

20 right. That was a bad question.

21 Nobody expressed during the meeting any

22 questions to Mr. Montgomery, "How did you get this

23 information," except you?

24 A. Well, I know I asked the question, so I don't

25 know whether it was repeated by anybody else or not.




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1 Q. Do you recall it being repeated by anyone?

2 A. I don't.

3 Q. Or did you -- do you recall other similar

4 inquiries, even if it wasn't a repetition of this

5 specific question, but inquiries about how did this

6 information come to be in Dennis Montgomery's

7 possession?

8 A. What I can tell you that I remember Dennis

9 Montgomery saying in that meeting was repeating the --

10 basically the entire story about how he had been a

11 subcontractor for the CIA and going into details about

12 this computer that they would use to harvest

13 information. That was the general answer is that the

14 CIA harvested information.

15 And we would say, well, how -- you know, how

16 did you get this?

17 Well, it was part of the information that was

18 harvested. So he would always throw out that broad net

19 and that -- that's the only answer we ever got about it.

20 Q. So is this -- just to make sure I'm clear, is

21 this flowchart thing the document that you have referred

22 to as the "matrix"?

23 A. Probably, yes.

24 Q. Okay. Did Mike Zullo tell you anything about

25 these documents when he conveyed them to you or at any




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1 "Joe Arpaio Brief"?

2 A. It likely is.

3 Q. So do you see where it says, "Covington now

4 included" in the e-mail from David Webb to

5 Detective Mackiewicz and Mike Zullo?

6 A. I do.

7 Q. And it also says, "Seems ... the only people

8 not talking to the Judge G. Murray Snow was Sheriff

9 Arpaio and his attorney's"?

10 A. I do.

11 Q. Did you have an understanding of what that

12 meant?

13 MR. MASTERSON: Form; foundation.

14 THE WITNESS: No.


16 Q. BY MS. MORIN: And Mike Zullo forwarded that to

17 you with the e-mail of -- with the text in his e-mail

18 saying "Update," right?

19 A. Yes, ma'am.

20 Q. What was your understanding of why he was --

21 what he was updating you about?



24 THE WITNESS: I received several of these

25 e-mails, it appears, on New Year's Day. Don't tell the




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1 sheriff, but I wasn't spending a lot of my New Year's

2 holiday reviewing these documents. So I don't think

3 that I had any question or, you know, curiosity about

4 these at the time I received them.

5 I'm -- I'm going to go off just a little bit,

6 if you don't mind, and tell you that on January 2nd,

7 after the meeting that we discussed earlier, was the

8 first opportunity I had to have a meeting with

9 Chief Sheridan, and it was then that I had the

10 opportunity to ask some questions about why I was being

11 given this information.

12 Q. BY MS. MORIN: Okay. Maybe we should turn back

13 to the text messages, if you could, that's Exhibit 2079,

14 and I want to look at the fourth page, which is Bates

15 number 199516.

16 A. Yes, ma'am.

17 Q. And do you see where Mike Zullo writes, "Hell,

18 I would wear a dress and ruby red slippers all year if

19 we can prove this"?

20 A. I do.

21 Q. Do you have an understanding of what he was

22 talking about proving in that text?



25 THE WITNESS: It is my belief that Mike Zullo




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1 that.

2 Q. BY MS. MORIN: When is the last time you were

3 aware of a payment going to Dennis Montgomery?

4 A. Probably the week that I was there, so May 10th

5 to the 14th, thereabouts.

6 Q. So at least through that time he was on the

7 payroll?

8 A. Yes, ma'am.

9 Q. Okay. So getting back to the meetings with

10 Sheriff Arpaio, in May 2014, you told the sheriff to

11 distance himself from Mike Zullo and Dennis Montgomery?

12 A. I did.

13 Q. And subsequently you were taken off the case?

14 A. Yes.

15 Q. I want to go back to the January 2nd, 2014,

16 meeting. Are you with me?

17 A. Yes, ma'am.

18 Q. So if you could, walk me through the start of

19 that meeting. Like, you walk in the door. The people

20 that you mentioned are at the meeting. Just starting

21 there, if you could tell me what happened.

22 MR. WALKER: Form.

23 THE WITNESS: I'm afraid I can't really. I

24 don't mind just telling you what I do remember.

25 Q. BY MS. MORIN: Sure.




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1 A. I do remember introductions being made to some

2 parties because there were some people there that I had

3 not met. I didn't know who they were. I remember Mike

4 Zullo giving some type of overview to the room about

5 Dennis Montgomery, that is, who he was and the general

6 briefing about the case and then he was called and put

7 on speakerphone.

8 Q. And he told his story, as you've described it,

9 to the monitor, and, to some extent today, on the

10 speakerphone, correct?

11 A. Yes, ma'am.

12 Q. And what was -- so if we're walking through the

13 meeting, what was the response to him telling his story?

14 Was it interjected throughout or did people sort of

15 listen to him finish and then start in with their

16 questions?

17 MR. MASTERSON: Form --


19 MR. MASTERSON: -- foundation.

20 THE WITNESS: Mike Zullo spoke to Dennis

21 Montgomery on speakerphone. I know I asked at least a

22 question or two and the sheriff spoke to him. I don't

23 recall any of the other members -- of counsel or any of

24 the other members of the office having direct contact

25 with Montgomery over the phone.




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1 Q. BY MS. MORIN: What did the sheriff say?

2 A. The only thing I specifically remember him

3 asking Montgomery was if all of this information is true

4 and that he had in fact taken items from the CIA that

5 proved that they were harvesting information illegally

6 from the U.S. public, why he hadn't been assassinated.

7 Q. That's the only thing the sheriff said to him

8 during the whole --

9 A. That's the only thing I remember him saying.

10 Q. That you remember?

11 A. Yes.

12 Q. And this was with the matrix flowchart --

13 A. Correct.

14 Q. -- present in the room at the meeting?

15 A. Yes, ma'am.

16 Q. Okay. You said you don't recall if the

17 timeline spreadsheet was in the room as well?

18 A. I don't believe it was.

19 Q. Okay. So what happened -- what else was said

20 to Dennis Montgomery? You've mentioned your questions.

21 You mentioned the sheriff's questions. What else was

22 said to him?

23 A. I don't specifically recall anything else said

24 to him. He just told us the story, and it's the same

25 story that if he were here today, he could tell in the




77

1 same cadence, in the same tone, in the exact almost

2 word-for-word because he's told it so many times. And

3 by that time, it's probably the third time I had heard

4 it, so I just remember going through that and having to

5 endure that story again.

6 Q. So I want to ask you to look at your interview

7 transcript, and specifically I think you describe some

8 of what you said on pages 85, 86, 87, around that point

9 in the transcript?

10 A. That's 3835, is that what that's going to be?

11 Q. No, just page 85 of the transcript.

12 A. Okay, I see it.

13 Q. It has a monitor's Bates number at the bottom.

14 A. Okay. Starting on page 85, ma'am?

15 Q. Yeah, just to give you some context, if you

16 want to look at page 85.

17 A. Okay.

18 Q. But I think your response about Mr. Montgomery

19 on the speakerphone is on page 86 --

20 A. Okay.

21 Q. -- which is WAI 18309.

22 MR. MASTERSON: Are you going to ask questions

23 about what's contained in the interview transcript?

24 MS. MORIN: Yes.

25 MR. MASTERSON: Okay. I had an objection




78

1 yesterday concerning use of the interview transcripts,

2 and I'll incorporate that objection here. I'm not going

3 to state it all, but in essence, these interviews were

4 taken without regard for my client's due process rights.

5 The interviews, to an extent, were compelled, although

6 the Court said they had to show up but they didn't have

7 to answer questions. But in reality, they were coerced

8 by the monitors in that the monitors made threats to the

9 interviewees about if they did not answer questions,

10 that would be reported to the judge in fact --

11 MS. MORIN: With all due respect,

12 Mr. Masterson, if you made an objection --

13 MR. MASTERSON: I'm going to let him answer the

14 question.

15 MS. MORIN: I haven't asked a question. If you

16 made an objection on the record, I'm happy for you to

17 incorporate your objection on the record.

18 MR. MASTERSON: I just want to --

19 MS. MORIN: You're testifying here and arguing,

20 and this isn't really the place for that.

21 MR. MASTERSON: I'm not arguing. I'm just

22 putting an objection on the record. And then you're

23 free to ask all the questions you want about the

24 interview.

25 The interviews were coerced to the extent the




79

1 monitors threatened the interviewees. They threatened

2 to go to the Court and discuss questions that were not

3 asked. In fact, we did go to court one time for a

4 status conference and the judge raised issues concerning

5 questions that at least for a short time were not asked

6 by an interviewee.

7 So the interviews were compelled. They were

8 coerced. The due process rights of my clients were

9 ignored, and I do not think they should be utilized in

10 this proceeding or at the evidentiary hearing. Thanks.

11 Q. BY MS. MORIN: Were you coerced? Or sorry.

12 Were you threatened by the monitor at your interview?

13 MR. WOODS: Object to the form.



16 THE WITNESS: I felt that I was compelled to be

17 there, and if I did not participate that that could be

18 problematic for me.

19 Q. BY MS. MORIN: Compelled by whom?

20 A. Well, both by the sheriff's office, as well as

21 the monitors.

22 Q. As a condition of your employment?

23 A. That's the way I felt, ma'am.

24 Q. So at the interview you described what

25 Mr. Montgomery said on speakerphone, I think starting on




80

1 page 86.

2 A. Yes, ma'am.

3 Q. And you said that it was the first time you

4 heard his voice at that point?

5 A. I had heard his voice on video, I believe, but

6 actually speaking to him, that would be the first time I

7 heard his voice.

8 Q. Okay. And then Chief Anders asked you about

9 two documents at the top of page 87. Do you see that?

10 And if you want to look at the page first, then I'll ask

11 you about this.

12 A. Yes, ma'am.

13 Q. And I believe you told the monitor that the

14 sheriff had copies of both of those documents on

15 page 88. So if you want to read through to the top of

16 page 88, and then my question is, is that what you told

17 the monitor and do you have different -- a different

18 recollection now?

19 A. And you're referring to what we're calling the

20 matrix as well as the spreadsheet?

21 Q. Correct.

22 A. I see what I told the monitors, and I can tell

23 you that I know that the sheriff had the matrix. If

24 there was a subsequent sheet stapled to it or -- it

25 appears that I told the monitors that I thought he had




81

1 that, so I --

2 Q. You're not changing that --

3 A. I'm not changing that.

4 Q. -- testimony today?

5 A. No. I -- I have the picture in my mind's eye

6 of the matrix, so I know -- or excuse -- yes, of the

7 matrix, so I know he had that. He very well may have

8 had that other spreadsheet. I honestly don't remember,

9 ma'am. It seems that I told the monitors that he did,

10 and I'm not recanting that statement.

11 Q. Okay. All right. And then you asked your

12 questions. The attorneys didn't ask questions. You've

13 mentioned the question that Sheriff Arpaio asked.

14 Did anyone else at that meeting ask -- ask

15 questions of Dennis Montgomery?

16 A. If the attorneys asked any questions

17 specifically, I don't remember it. And the only people

18 that were in the room that weren't attorneys were the

19 sheriff, Mike Zullo, Captain Bailey, and myself. I

20 don't think Captain Bailey said anything. Mike Zullo

21 had some conversations because he was the conduit

22 between Montgomery and everybody else, and, you know, I

23 think I tried to -- to get this information about these

24 documents that we've been discussing to no avail.

25 Q. So this was on the morning of January 2nd?




82

1 A. I believe so.

2 Q. Do you remember about how long the meeting

3 lasted?

4 A. I don't. I don't recall it being a very long

5 meeting. Maybe a half an hour, less than an hour, I

6 would say.

7 Q. Did the meeting continue after you left the

8 meeting or did it end and everybody left?

9 A. No, everybody left.

10 Q. What happened in relation to this Seattle

11 investigation immediately after that meeting?

12 A. Because the chief deputy wasn't in this

13 meeting, Captain Bailey and I waited for the chief

14 deputy at his office. And when he arrived, I asked him

15 very specifically -- because I had gotten text messages

16 that had the name Judge Snow in it, and now there was

17 this matrix and these spreadsheets that say things like

18 Judge Snow. And obviously I knew who Holder was. Any

19 of the other law firms or the people mentioned, I didn't

20 know who they were.

21 So I asked the chief deputy specifically, are

22 you asking me to investigate a federal judge?

23 And he said in no uncertain terms am I to

24 investigate a federal judge or anything to do with the

25 birth certificate. I was just investigating the




83

1 allegations of the illegal harvesting.

2 Q. So did he tell you to stop Dennis Montgomery

3 from investigating the federal judge?

4 A. No.

5 Q. But he knew that that information was on the

6 matrix when you spoke with him?


8 MR. WALKER: Form; foundation.

9 THE WITNESS: I provided the chief

10 deputy with -- I don't know what I gave him, but I at

11 least showed him the matrix, and I also provided him the

12 "Playboy" article and the "New York Times" article and

13 the Wikipedia page of Dennis Montgomery. And that was

14 my concern is if the idea of investigating a federal

15 judge wasn't concerning enough to me, doing it based on

16 somebody who the media titles the man who duped the

17 government for millions of dollars just made it even

18 more ludicrous. So I know I provided all that

19 information to him.

20 Q. BY MS. MORIN: So you provided that to the

21 chief deputy during this meeting that you had with him

22 on January 2nd?

23 A. Yes, ma'am.

24 Q. And he told you, you, Travis Anglin, are not to

25 investigate a federal judge or the DOJ -- did you say




127

1 returned back to Arizona a few times during the -- his

2 entire stay on that case.

3 Q. BY MS. MORIN: So starting when?

4 A. He got there either in late October or

5 beginning of November of '13, and I don't believe he

6 returned until the beginning of January. Because when I

7 went on January 10th, I flew up there with Mackiewicz

8 and Zullo. They stayed when I returned, and I don't

9 think that Brian returned more than twice from then

10 until May when I came home with him.

11 Q. And that was authorized by whom?

12 A. That was ordered by Sheriff Arpaio.

13 Q. Ordered by Sheriff Arpaio?

14 A. Yes.

15 Q. And so he went up in, you said, October or

16 November 2013?

17 A. Yes, ma'am.

18 Q. And then do you know when he came back before

19 again departing in January 2014?

20 A. He wasn't back at our January 2nd meeting, but

21 he departed with me on January 10th, so within that time

22 frame.

23 Q. So sometime between January 2nd and

24 January 10th he returns to Arizona?

25 A. Yes.




154

1 incorrectly. I don't want to --

2 A. No, you're correct.

3 Q. -- misrepresent.

4 A. It was also in addition to the text messages

5 that I had received from Mike Zullo where he had

6 mentioned the judge.

7 Q. Right. So you showed those to Chief Sheridan

8 also?

9 A. Yes.

10 Q. But not in the call with -- the conference call

11 with Montgomery?

12 A. Correct.

13 Q. So my question, after recapping all that, is

14 why did you not bring up the Judge Snow allegation in

15 the matrix specifically during the January 2nd

16 conference call meeting? Why did you wait until talking

17 to Chief Deputy Sheridan afterwards to raise that?

18 MR. MASTERSON: Form.

19 THE WITNESS: There were four attorneys in the

20 room and an elected official, and I didn't want to bring

21 up the conversation of investigating a federal judge in

22 that context, because if it progressed somewhere else, I

23 didn't want to hear the answer.

24 So I waited until I had a -- a private audience

25 with the chief deputy where I asked him in that tone,




155

1 you're not asking me to investigate a federal judge, are

2 you? Because that gave me an opportunity if the answer

3 would have been "yes" to ask to recuse myself from that

4 investigation. So I waited until I had just a more, I

5 guess, like I said, private audience than to bring it up

6 in front of everybody else.

7 Q. BY MS. MORIN: Do you think that sharing

8 information about Sheriff Arpaio's investigation of --

9 hypothetically, of a federal judge, if that existed,

10 would affect your career at the sheriff's office?



13 THE WITNESS: You threw me off with the

14 hypothetical question there.

15 Q. BY MS. MORIN: Well, I don't want to force you

16 to assume based on my question that -- that I'm telling

17 you what you testified to says anything. But let's say

18 that there is information in your possession,

19 hypothetically, that Sheriff Arpaio is investigating

20 Judge Snow or any other federal judge. Do you think

21 that sharing that information outside of the sheriff's

22 office would affect your career at the sheriff's office?



25 THE WITNESS: If I were, hypothetically or not,




164

1 STATE OF ARIZONA ) ) ss.

2 COUNTY OF MARICOPA )

3 BE IT KNOWN that the foregoing proceedings were taken before me; that the witness before testifying

4 was duly sworn by me to testify to the whole truth; that the foregoing pages are a full, true, and accurate

5 record of the proceedings, all done to the best of my skill and ability; that the proceedings were taken down

6 by me in shorthand and thereafter reduced to print under my direction.

7 I CERTIFY that I am in no way related to any

8 of the parties hereto, nor am I in any way interested in the outcome hereof.

9

10 [X] Review and signature was requested. [ ] Review and signature was waived.

11 [ ] Review and signature not required.

12 I CERTIFY that I have complied with the

13 ethical obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206 J(1)(g)(1) and (2).

14 Dated at Phoenix, Arizona, this 13th day of September, 2015.

15

16 ___________________________________

17 KELLIE L. KONICKE, RPR Certified Reporter

18 Arizona CR No. 50223

19 * * * * *

20

21 I CERTIFY that GRIFFIN & ASSOCIATES, LLC, has complied with the ethical obligations set forth in ACJA

22 7-206 (J)(1)(g)(1) through (6).

23 _____________________________________

24 GRIFFIN & ASSOCIATES, LLC Registered Reporting Firm

25 Arizona RRF No. R1005


EXHIBIT B



Arpaio

Steve Bailey

September 8, 2015




602.264.2230

Original File SB090815.txt

Min-U-Script®



Steve Bailey - September 8, 2015

336

1 BY MS. WANG:

2 Q. Can you tell me how Sheriff Arpaio expressed that.

3 A. It was in the same meeting when I observed this.

4 It was slid to me. And I said, that's nothing.

5 And the sheriff responded, you don't know.

6 And I said, I do know.

7 And, obviously, the case kept going, so that

8 was -- it was a very short exchange, but...

9 Q. Okay. When was that meeting?

10 A. It -- it -- I believe it was after I was the PSB

11 commander.

12 Q. Do you recall when it was? What month?

13 A. No.

14 Q. Could it have been January 2nd of 2014?


16 THE WITNESS: I -- I don't know.

17 BY MS. WANG:

18 Q. Okay. Where was the office -- the meeting that

19 included you and the sheriff?

20 A. This particular meeting was in the executive

21 conference room of the fifth floor.

22 Q. That's where the sheriff's office is?

23 A. Yes.

24 Q. Who else was present at the meeting?

25 A. Sheriff. Chief deputy. I think -- there was a




337

1 meeting with Mike Zullo in it and a couple of the -- of our

2 attorneys, but I don't remember which group it was.

3 Q. Did Dennis Montgomery join that meeting at any

4 point in time?

5 A. No.

6 Q. Okay. Were you ever a part -- well, let's stick

7 with this meeting.

8 Was this the first time you met with

9 Sheriff Arpaio concerning the Dennis Montgomery

10 investigation?

11 A. It wasn't really a meeting. He walked in for a

12 little bit. In terms of his part, what I remember, he didn't

13 stay for the whole thing. He walked in briefly with this and

14 then -- and then left.

15 Q. After you expressed your concerns that Dennis

16 Montgomery was not reliable, did the investigation continue?

17 A. Yes.

18 Q. After you -- at the point that you had the

19 conversation with Chief Deputy Sheridan saying that you could

20 not in good conscience approve payments to Dennis Montgomery,

21 did payments to him continue?

22 A. I believe so.

23 Q. Did you continue to sign those approvals?

24 A. I did not.

25 Q. Do you know who did?




344

1 Seattle investigation?

2 MR. MASTERSON: Form. Foundation.

3 THE WITNESS: No.

4 BY MS. WANG:

5 Q. You thought it was not an appropriate use of funds?


7 MR. MITCHELL: Asked and answered.

8 THE WITNESS: That's accurate.

9 BY MS. WANG:

10 Q. Okay. Did you continue to sign those travel

11 expense approvals after reaching that conclusion?

12 A. I don't believe I did.

13 Q. Do you know what -- who started to approve them

14 after -- well, first let me ask you. Did the travel continue

15 after you declined to sign those approvals?

16 A. Yes.

17 Q. Do you know who did do those approvals?

18 A. I don't.

19 Q. Do you recall a meeting on January 2nd, 2014,

20 about the Seattle investigation that included you,

21 Sheriff Arpaio, Mike Zullo, Mr. Masterson, Mr. Popolizio, Tim

22 Casey, Tom Liddy, Travis -- and Travis Anglin where Dennis

23 Montgomery was participating by telephone?

24 A. I don't remember Montgomery being on the phone. I

25 remember a meeting with some of those -- I think this is the




345

1 meeting I was describing earlier potentially.

2 Did you say Mike Zullo?

3 Q. Yes.

4 A. Yeah, I believe I do remember that one.

5 Q. Okay. And you don't remember Dennis Montgomery

6 participating in that meeting by telephone?

7 A. I'm not saying he didn't. I don't remember that.

8 Q. Were you there for the entire meeting?

9 A. As far as I know.

10 Q. What was the purpose of that meeting?

11 A. To -- I -- the -- that I remember, to evaluate how

12 credible this person was. And I know Mike Zullo did a lot of

13 the talking in that -- in that meeting.

14 Q. Did Judge Snow come up during that meeting?

15 A. Not that I remember.

16 Q. I'm going to show you a document that we will mark

17 Exhibit?

18 THE COURT REPORTER: 2073.

19 MS. WANG: 2073?

20 THE COURT REPORTER: Yes.

21 MS. WANG: Thank you.

22 (Exhibit 2073 marked for identification.)

23 BY MS. WANG:

24 Q. And I will tell you that Exhibit 2073 is a

25 collection of documents that the court-appointed monitor --




394


2 COUNTY OF MARICOPA )

3 BE IT KNOWN that the foregoing proceedings were taken before me; that the witness before testifying was duly

4 sworn by me to testify to the whole truth; that the foregoing pages are a full, true, and accurate record of the

5 proceedings, all done to the best of my skill and ability; that the proceedings were taken down by me in shorthand and

6 thereafter reduced to print under my direction. I CERTIFY that I am in no way related to any of the

7 parties hereto, nor am I in any way interested in the outcome hereof.

8

9 [X] Review and signature was requested.

10 [ ] Review and signature was waived.

11 [ ] Review and signature not required.

12

13 I CERTIFY that I have complied with the ethical obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206

14 J(1)(g)(1) and (2). Dated at Phoenix, Arizona, this 10th day of

15 September, 2015.

16 ____________________________

17 CATHY J. TAYLOR, RPR Certified Reporter

18 Certificate No. 50111

19 * * * * *

20 I CERTIFY that GRIFFIN & ASSOCIATES, LLC, has

21 complied with the ethical obligations set forth in ACJA

22 7-206(J)(1)(g)(1) through (6).

23 _____________________________

24 GRIFFIN & ASSOCIATES, LLC Registered Reporting Firm

25 Arizona RRF No. R1005


EXHIBIT C



Arpaio

Timothy J. Casey

September 16, 2015




602.264.2230

Original File TC091615.txt

Min-U-Script®



Timothy J. Casey - September 16, 2015

245

1 THE COURT: I'm going to overrule the

2 objection and direct the witness to answer.

3 THE WITNESS: I could have, but that's not a

4 solid -- that's not -- in my judgment, that's not a practice

5 to make, rewriting an opposing party's discovery request,

6 because that's the -- that's the problem with that.

7 BY MS. WANG:

8 Q. So, in your view, it's -- setting aside not getting

9 into any communications with the client in this case, your

10 general practice as an attorney is to convey the other

11 party's document requests without elaboration?

12 A. Generally that -- that is true. I will -- I will

13 provide -- as a practical matter, I will provide follow-up

14 clarification if needed, but it's -- how I learned, it's very

15 dangerous for one advocate to summarize another advocate's

16 discovery. If it's not clear, it ought to be objected to on

17 the appropriate grounds. Otherwise, that's a problem.

18 Q. And you don't know whether you followed your

19 general practice of not providing further instruction during

20 a pretrial discovery period in this case?

21 A. I don't -- I don't remember that.

22 Q. All right. I'm going to change gears entirely.

23 This will be very brief.

24 Were you present at a meeting on

25 January 2nd, 2014, with John Masterson, Joe Popolizio,




246

1 Sergeant Travis Anglin, Sheriff Arpaio, a posse member named

2 Mike Zullo, and Tom Liddy concerning a -- an MCSO

3 investigation involving a confidential informant in Seattle?

4 A. I know I was -- I don't know the date, but I know I

5 attended one.

6 Q. And do you recall whether the confidential

7 informant was on the telephone during that meeting?

8 MS. CLARK: Objection. Calls for

9 attorney-client privileged, confidential, and work product.

10 MS. WANG: Well, if the confidential informant

11 were on the phone, it would affect the analysis of whether,

12 in fact, that conversation was privileged. So I think I'm

13 entitled to an answer on that.

14 (An off-the-record conversation was held

15 between the witness and his counsel.)

16 THE WITNESS: My memory of the meeting I

17 attended was there was no CI on the phone. It was a briefing

18 by whoever it was in the MCSO that was telling -- that was

19 telling everyone in the room what their process was, or

20 analysis or whatever.

21 BY MS. WANG:

22 Q. Were you there for the purpose of giving legal

23 advice?

24 A. I -- don't know. My -- my impression is what I can

25 just tell you.




247

1 Q. What was your impression as to whether you were

2 there to give legal advice?

3 A. My impression was is that the sheriff wanted to

4 know from the lawyers in the room what we thought about the

5 information that was being provided by MCSO personnel about

6 this confidential informant.

7 Q. Was he seeking legal advice as to the

8 investigation, or was he trying to get a sense of whether you

9 believed the informant was reliable?

10 A. I don't know, because it was never really

11 explained.


13 BY MS. WANG:

14 Q. All right. During that meeting -- well, let me ask

15 you this: Do you know whether Mike Zullo is an employee of

16 the MCSO?

17 A. I -- I mean, I heard the name. I've read about

18 him, but I'm not sure I could spot him in a lineup. So I

19 don't know what his role is.

20 Q. All right. Do you recall seeing any documents

21 during that meeting that mentioned Judge Snow's name?

22 A. I do.

23 Q. What do you recall about that?

24 A. I remember seeing some sort of graphic.

25 Q. Okay. I'm going to hand you an exhibit that was




248

1 already marked 2524.

2 MS. WANG: I hope you still have this from

3 yesterday, because --

4 MR. MASTERSON: I don't, but that's okay.

5 BY MS. WANG:

6 Q. Mr. Casey, can you -- this is a declaration that I

7 filed with the Court in response to the opposition to

8 Sheriff Arpaio and Chief Deputy Sheridan's motion to

9 disqualify the Court. The document indicates on its face

10 that it is under seal. I will tell you that it is no longer

11 under seal. The motion to seal was -- well, there was a

12 court order either unsealing or denying the motion to seal.

13 Take a look at Exhibit F. There are two

14 documents there. One is in landscape --

15 A. This thing.

16 Q. -- orientation.

17 Correct.

18 So there's a document that contains a -- a

19 sort of a graphical --

20 MS. CLARK: Mine looks like it's different.

21 My F starts with --

22 MS. WANG: Keep -- keep turning.

23 MS. CLARK: Keep going?

24 MS. WANG: Keep going.

25 MS. CLARK: Okay.




249

1 THE WITNESS: This is all part of F; right?

2 MS. WANG: Yes.

3 MS. CLARK: Okay.

4 BY MS. WANG:

5 Q. So keep flipping.

6 A. Yeah. Excuse me. I'm sorry. Okay.

7 Q. I think you're flipping the wrong direction.

8 A. No, but I'm -- I'm looking at this.

9 Q. Okay.



12 THE WITNESS: Okay.

13 BY MS. WANG:

14 Q. Does -- do the materials that -- Exhibit F on my

15 declaration look like the documents you saw during that


17 A. This thing identified as timeline looks familiar.

18 And I remember a color-coded chart of some sort that looked

19 like what you see here, that I'm pointing to at Bates label

20 MELC199934.

21 Q. Was there a discussion of these documents during

22 that meeting?

23 MS. CLARK: Objection. Attorney-client

24 privilege. Work product. Confidentiality.

25 MS. WANG: Your Honor, we discussed this




250

1 Exhibit F to my declaration during the deposition of

2 Captain Bailey last week. Mr. Masterson was present. My

3 recollection is that there was not an objection to my

4 questions concerning what was said during that meeting on

5 January 2nd, 2014.

6 THE COURT: I'll say, Ms. Clark, that I

7 haven't heard an objection from Mr. Masterson. But whoever

8 is proponing -- whoever is the proponent of the privilege

9 has to establish that the privilege exists. I have not yet

10 heard anything from Mr. Casey which would implicate the

11 attorney-client privilege. To the extent that he said -- and

12 I'm saying what I understood his testimony to be -- that

13 Sheriff Arpaio had the attorneys there to ask them about what

14 they thought about the reliability of the informant. That

15 does not strike me as solicitation of or the receipt of legal

16 advice.

17 So you're the proponent of the privilege.

18 Unless you can tell me that it -- convince me that it does,

19 I'm going to overrule your objection and instruct the witness

20 to answer.

21 MS. CLARK: Judge, the holder of the privilege

22 is the client represented by Mr. Masterson here today. And

23 as I told you in the prefatory statement, if he doesn't

24 object, I'm assuming there's a waiver. However, I do believe

25 this is covered by client confidentiality under 1.6. It's in




251

1 the course of representing the client that he's attending

2 these meetings. It's confidential under ER 1.6. And without

3 an order, I'm instructing the witness not to answer.

4 THE COURT: I'm directing the witness to

5 answer. I'm overruling the client confidentiality objection.

6 THE WITNESS: Again, I -- can you read --

7 reread that question for me?

8 BY MS. WANG:

9 Q. I think it was just was there discussion of these

10 documents at Exhibit F of my declaration during that


12 A. I believe so.

13 Q. Can you describe what you recall of that

14 discussion.

15 MS. CLARK: Continuing objection.

16 MR. MASTERSON: Well, you -- has the witness

17 been asked the question to whether he was providing his legal

18 advice, mental impressions, or legal analysis to his client?

19 In other words, if -- if the response to this

20 question is the witness says legal advice, mental

21 impressions, or legal analysis to his clients, if that is the

22 answer to this particular question, I'm going to object based

23 on privilege. I'm not sure that question's been asked of

24 this witness yet.

25 MS. WANG: Well, I did ask Mr. Casey whether




252

1 he was there at the meeting to provide legal advice. He said

2 it was not clear.

3 Let me ask -- let me withdraw the pending

4 question and ask another question first.

5 BY MS. WANG:

6 Q. During the conversation about these documents at

7 Exhibit F of my declaration dated July 10th, 2015, did you

8 provide any legal advice?

9 A. I, like the other lawyers in the room, including

10 some that are here today, offered our assessments of what we

11 heard. Whether it's legal advice, I don't know to this day.

12 I'm a lawyer. I don't remember being asked for any issue

13 about admissibility or anything. I just remember that we all

14 talked about what we thought about what we heard.

15 Q. Was there any discussion about whether any

16 particular action taken in the course of the investigation

17 was legal or not?

18 A. What -- what was legal?

19 Q. Whether any -- well, you understood that the

20 dis- -- there was discussion during the January 2nd, 2015,

21 meeting about -- sorry -- January 2nd, 2014, meeting, there

22 was discussion about an investigation by MCSO involving a

23 confidential informant; correct?

24 A. Yes. Generally, yeah.

25 Q. During the discussion of that investigation, was




253

1 your advice sought on whether any actions taken during that

2 investigation were lawful --

3 A. I don't --

4 Q. -- or not lawful?

5 A. I don't believe that was ever asked.

6 Q. Were you asked for your assessments about whether

7 the -- the informant was reliable?

8 A. I believe we were asked that.

9 Q. Did it involve any legal analysis or application of

10 your knowledge of the law?

11 A. My experience as an attorney that tries cases and

12 deals with people, like -- kind of like what you are, but I'm

13 not sure about legal analysis applying law to facts. I'm not

14 sure about that. I don't think so.

15 Q. You were being asked to assess his believability,

16 in other words?

17 A. I will state for clarification, I don't believe the

18 time I was present that there was the CI on the telephone. I

19 believe it was just a report by whoever it was, detectives or

20 whoever. But we were -- I think we were being offered to

21 share our thoughts about the information being relayed.

22 Q. And were you -- was your legal advice being sought?

23 I guess I'm just trying to get at whether --

24 A. I --

25 Q. -- you were bringing to bear any legal analysis to




254

1 that situation or whether your opinion was being sought as an

2 observer of --



5 BY MS. WANG:

6 Q. -- human behavior, whatever.

7 You mentioned yourself assessing witnesses on

8 the stand.

9 A. I -- I cannot tell you. You would have to ask the

10 client what their expectation were for having the lawyers

11 present. I don't -- I -- it's -- to this day, I don't know

12 exactly why.

13 Q. Captain Bailey testified in his deposition that he

14 believed that at least Mr. Popolizio was present, because

15 there was a claim made by the confidential informant that

16 Mr. Popolizio's law firm's e-mails had been hacked.

17 Do you recall that?

18 A. I do.

19 Q. All right. That did not involve -- Mr. Popolizio

20 was not being asked for his legal opinion about anything, was

21 he?

22 A. I -- I don't know what Joe was asked. I know that

23 Joe was present. I believe John was present. And myself.

24 Mr. Liddy. I don't know if James in my office was present.

25 Q. All right. So, Mr. Casey, I'll ask you again at




255

1 this point. What was the discussion about the documents at

2 Exhibit F of my declaration?

3 MS. CLARK: I'm going to object based on

4 confidentiality and attorney-client privilege and work

5 product. It's, I -- I think, fair to presume that if a

6 client asks you to attend a meeting as a lawyer, it is to

7 provide your legal analysis.

8 And I understand Mr. Masterson is not

9 objecting, but Mr. Liddy -- excuse me -- Mr. Casey has

10 obligations to his former clients, and I'm going to make that

11 objection and instruct him not to answer absent a Court

12 order.

13 MR. MASTERSON: Well, actually, I am -- I am

14 objecting, because I think the testimony I just heard from

15 the witness is he's giving his impressions. And I -- and I

16 understand you tried to finagle it a little bit and ask him,

17 well, are you giving legal advice? And his answer was, well,

18 I'm giving an analysis possibly of a witness, although he's

19 telling us he doesn't recall the witness being on the phone.

20 But, in any event, he's there in connection

21 with litigation. He's looking at documents. And if he's

22 being asked for comments on documents, that's part of his

23 position as a representative, a legal representative of the

24 client. And his statements, I think, are then privileged as

25 being work product, at least, and probably attorney-client




256

1 privilege. They're his impressions of what he has seen.

2 Possibly his legal analysis of what he has seen.

3 MS. WANG: Mr. Casey testified that it was not

4 clear to him that he was being -- he was there for the

5 purpose of providing legal advice or analysis, and I don't

6 believe that on the testimony that we've heard the

7 conversation is privileged.

8 MS. CLARK: I believe that's a legal

9 conclusion and for the judge to make.

10 MS. WANG: I'm making my argument and --

11 MS. CLARK: I'm making --

12 MS. WANG: -- now seeking a ruling.

13 MS. CLARK: I'm making mine.

14 THE COURT: All right. Here's how we're going

15 to proceed: We're going to proceed on a

16 statement-by-statement basis, a question-by-question basis,

17 that -- to the extent that the witness is capable of

18 reconstructing the conversation. I believe it is true

19 that -- that the witness is entitled to a general presumption

20 that if he's asked to be there as an attorney, there is a --

21 there is some presumption that there is -- at least you have

22 to be careful about an attorney-client relationship. But the

23 law, as I understand it, and I believe it exists and the

24 Ninth Circuit is quite clear, that does not necessarily mean

25 that the attorney-client privilege exists.




257

1 With respect to a conversation, the

2 attorney-client only exists -- the attorney-client privilege

3 only exists where legal advice of any kind is sought from a

4 professional legal advisor in his capacity as such. And

5 communications relating to that purpose made in confidence by

6 a client are at the client's instance permanently protected

7 from disclosure.

8 So we are going to go forward to the extent

9 it's possible on a very specific basis. I have not heard --

10 I will say, Mr. Masterson, Ms. Clark, I haven't heard

11 anything yet that necessarily implicates the attorney-client

12 privilege to cover the whole conversation. I have heard

13 reason to proceed with caution.

14 And for that reason, I am going to require

15 you, Ms. Wang, to ask more specific questions about that

16 January 2nd meeting.

17 MS. WANG: Yes, Your Honor.

18 THE COURT: See if we can get to it any

19 better.


21 MS. CLARK: Judge, I'm continuing the

22 objection on confidentiality under ER 1.6. Mr. Casey

23 can't --

24 THE COURT: I'm overruling the objection on

25 confidentiality pursuant to ER 1.6.




258

1 MS. CLARK: Thank you, Judge.

2 BY MS. WANG:

3 Q. Mr. Casey, at any point during the January 2nd,

4 2014, meeting, did you learn that the confidential informant

5 was offering information or making a claim or allegation that

6 there was a conspiracy between Judge Snow, the Attorney

7 General of the United States, or the Department of Justice

8 generally and the law firm of Covington & Burling that would

9 affect the sheriff?


11 THE WITNESS: Am I instructed to answer, Your

12 Honor?

13 THE COURT: You are.

14 THE WITNESS: Yes.

15 BY MS. WANG:

16 Q. Who provided that information during the


18 A. Well, first of all, I have to -- I don't know the

19 date. For some reason, I thought it was earlier than that,

20 like November of '13.

21 Whoever was doing the speaking on the

22 telephone were relaying information -- was relaying

23 information about what the CI, the confidential informant,

24 claimed to have put together.

25 Q. So your impression was that somebody was on the




259

1 telephone conveying information on behalf of the confidential

2 informant but that it was not the confidential informant --


4 BY MS. WANG:

5 Q. -- himself?


7 THE WITNESS: That's -- that's what I

8 remember. I thought there were two MCSO employees up in

9 Seattle calling in.

10 BY MS. WANG:

11 Q. All right. Do you know who the person on the phone

12 was?

13 A. The names that you mentioned. One of them, the --

14 with the Z.

15 Q. Mike Zullo?

16 A. Yeah. That sounds familiar --

17 Q. All right.

18 A. -- but --

19 Q. What about Brian Mackiewicz? Is that possibly --

20 A. There were --

21 Q. -- someone who was participating by telephone?

22 A. I couldn't tell you, but I know there were two.

23 Q. All right.

24 A. Two employees.

25 Q. What did the person on the telephone convey as far




260

1 as you remember about an alleged conspiracy between

2 Judge Snow, the Attorney General of the United States, the

3 Department of Justice, and the law firm of Covington &

4 Burling?

5 A. Would you -- are you asking me for my impression --

6 Q. No.

7 A. -- or are you asking me --

8 Q. I'm asking you --

9 A. -- specifically --

10 Q. -- for fuller information about what was conveyed

11 about that.


13 THE WITNESS: I will tell you in all sincerity

14 that the details are not clear. The conclusion is abundantly

15 clear.

16 BY MS. WANG:

17 Q. What was the conclusion?

18 MS. CLARK: Again, just the continuing

19 objection, Judge, and the work product as well.

20 THE COURT: Overruled.

21 THE WITNESS: Hogwash.

22 BY MS. WANG:

23 Q. Who said it was hogwash?

24 A. That was my conclusion. And if I'm not mistaken,

25 every lawyer in the room reached that conclusion.




261

1 Q. Did anyone in the room not reach that conclusion?

2 MR. WALKER: Foundation.

3 MR. MASTERSON: Join.

4 THE WITNESS: I don't know. I don't know.

5 BY MS. WANG:

6 Q. Who in the room ventured an opinion as to whether

7 or not the information about that conspiracy was reliable?



10 BY MS. WANG:

11 Q. You've mentioned already every lawyer in the room.

12 Every lawyer in the room said that it was hogwash.



15 MS. CLARK: Judge, we're renewing the

16 objection on all three bases.

17 THE COURT: I'm not sure I understand the

18 question, and I want to be able to be very clear that I

19 understand the question and give everybody a chance to

20 object. I don't understand the question.

21 MS. WANG: Sure. I'm not sure there was a

22 pending question. I apologize.

23 BY MS. WANG:

24 Q. My question was, you mentioned that the -- every

25 lawyer in the room expressed the view that the allegation of




262

1 the conspiracy was hogwash; is that right?

2 A. That -- that was my description for my conclusion,

3 and I believe that was shared by the other lawyers in the

4 room.

5 Q. All right. So my question is, did any nonlawyer in

6 the room express a view as to whether the alleged

7 information -- the information about the alleged conspiracy

8 was accurate?

9 A. Yes or no?

10 Q. Yes, yes or no.

11 A. Yes.

12 Q. Who was that?

13 A. My client. Joe Arpaio.

14 Q. And what was the view that he expressed?

15 MS. CLARK: Objection, Judge. Attorney-client

16 privilege. Confidentiality as well.

17 THE COURT: Well, I'm going to overrule the

18 confidentiality objection. The privilege belongs to

19 Mr. Masterson. I don't hear an objection, so I'll direct him

20 to answer.

21 MR. MASTERSON: Can we just wait a second

22 here. Can --

23 (Stenographic record reviewed by

24 Mr. Masterson.)

25 MR. MASTERSON: I'm going -- I'm going to




263

1 raise the objection. I think the question calls for a

2 statement made by my clients, two lawyers, and I think the

3 assumption is that he is making this statement in order to

4 seek his attorney's counsel or advice regarding how to

5 proceed in a legal matter.

6 THE COURT: Do you know, I think that this

7 is -- I think this requires some careful consideration on my

8 part and a little bit more research than I've done. So this

9 is what I would propose. And it's going to dislocate,

10 perhaps, Mr. Casey and everybody else, but I think it's an

11 important enough question that I may not want to just fire

12 from the hip here.

13 It seems to me that there are several

14 different reasons why this conversation may not be privileged

15 at all. It depends on who was on the phone. And the second

16 thing is, I'm not sure that a statement made by

17 Sheriff Arpaio is privileged, but I think that Mr. Masterson

18 raises a good point. There are attorneys in a meeting. He

19 expresses an opinion.

20 I would like to look into that and in terms of

21 whether or not it's covered by the attorney-client privilege.

22 So what I intend to do, and what I'll invite the parties to

23 do, we're meeting Friday morning. If you have any

24 submissions or legal authority you want to put forward on

25 that question, I'll take a look at it and make the ruling.




264

1 But for now, I think in order to protect the privilege, I'm

2 going to tentatively sustain the objection, direct the

3 witness -- or sustain the objection. And so the witness

4 won't answer it, but that he is going to be determinative on

5 who else -- I mean, if we can make a determination as to who

6 else was on the call. And I'm not sure who else was actually

7 present physically, if there's anybody there that might

8 destroy the privilege and/or I want to look into just

9 statements made by counsel -- or I'm sorry -- statements made

10 by a client and whether or not it's up to the Court to

11 determine whether or not in the context that is seeking legal

12 advice.

13 MS. WANG: All right, Your Honor.

14 May I ask the witness just -- I now realize I

15 told the witness who I understood to be at the meeting based

16 on prior deposition testimony by other witnesses. I'd like

17 to ask him what his recollection is as to who was present.

18 THE COURT: You may do so.

19 BY MS. WANG:

20 Q. Who else was present, Mr. Casey, that you recall?

21 A. I'm going to start off with the lawyers. Joe

22 Popolizio and John Masterson from Jones Skelton. Myself.

23 Tom Liddy. I don't remember if James Williams in my office

24 was present or not. As to the lawyers, I don't know if

25 Chris -- I -- Christine Stutz was there. I don't remember




265

1 that.

2 Jerry Sheridan was there. Sheriff Arpaio was

3 there. I believe Jack Mac- -- Jack MacIntyre was there.

4 There were other people that were there. Perhaps -- but I

5 can't say with certainty, like Mr. Bailey, Steve Bailey. I

6 don't know if the PIO person, Lisa Allen, was there.

7 But, I mean, it seemed to me that it was a

8 very full conference room. And I -- the meeting I'm thinking

9 about occurred in a conference room in his old building.

10 Q. At the Wells Fargo building?

11 A. Yes. It was a long conference room at one end of a

12 hallway.

13 Q. Did you know everyone present? Were there people

14 unfamiliar to you there?

15 THE COURT: Well --

16 THE WITNESS: There may -- there may have

17 been.

18 BY MS. WANG:

19 Q. Can you give me an estimate of the number of people

20 that you believe were present?

21 A. As many as that are in this room.

22 Q. And can you tell me how many people do you think

23 are in the room currently?

24 A. Oh, 16.

25 MS. WANG: All right. Yes, Mr. Masterson's




266

1 requesting we take a break as Mr. Popolizio's come to fill

2 in.

3 THE COURT: We can, and we're off the record

4 for the deposition.

5 (Discussion off the record.)

6 THE COURT: I would appreciate counsel doing

7 an evaluation of their own ethical obligations under the

8 Title 3s to make sure that they are not going to end up

9 either as witnesses or that they don't have duties relating

10 to candor to the tribunal on my previous testimony or other

11 matters that they need to investigate and consider, because

12 I -- I do not want to go down the road and be in the middle

13 of this hearing and have you tell me for some reason -- and

14 I'm not trying to suggest that I think there's any

15 determination here. I'm just raising this issue. I don't

16 want you to have to tell me for some reason that you believe

17 that your ethical obligations require you to withdraw.

18 And is that clear?

19 MR. STEIN: Your Honor, I'm sorry. It's not

20 clear to me. And I don't mean to be difficult, but -- I

21 understand what you're saying, but I'm not sure what you mean

22 by it. And so if -- if you could be more specific, I would

23 greatly appreciate it.

24 THE COURT: I'm not going to be more specific.

25 MR. STEIN: Okay.




267

1 THE COURT: I think that -- well, I guess I

2 don't mind being more specific. The reason I say I'm not

3 going to be more specific is because I don't want to suggest

4 that I made any determination, but as I'm sitting here -- let

5 me see if I've got -- I don't have the rules.

6 MS. CLARK: Oh, I have them, Judge. Oh, you

7 have -- okay.

8 Got 'em.

9 THE COURT: Nah. I have the federal rules. I

10 don't have the state rules.

11 MS. CLARK: Oh, I got them right here, Judge.

12 They're open to the 3s.

13 THE COURT: We have candor toward the

14 tribunal. "A lawyer shall not knowingly offer evidence that

15 the lawyer knows to be false. If a lawyer" -- "the lawyer's

16 client or a witness called by the lawyer has offered material

17 evidence and the lawyer comes to know of its falsity, the

18 lawyer shall take reasonable remedial" -- "remedial measures

19 including, if necessary, disclosure to the tribunal."

20 There's a number of state ethical opinions

21 that'll give guidance on that.

22 "A lawyer may refuse to offer evidence, other

23 than the testimony of a defendant in a criminal matter, that

24 the lawyer reasonably believes is false."

25 That's one that seems to me -- I don't




268

1 remember exactly what previous testimony was, but I do

2 remember previous testimony regarding aspects of whether or

3 not this Court was ever the subject of an investigation by

4 the MCSO or if the MCSO ever knew of an investigation of

5 which this Court was the subject. And I received answers, I

6 think, from Sheriff Arpaio, from Chief Deputy Sheridan, and

7 then there was a statement made under penalty of perjury by

8 Chief Arpaio.

9 It seems to me that counsel need to evaluate

10 that testimony in light of their own participation or what

11 they may have subsequently come to know to determine whether

12 or not they have a duty of candor toward the tribunal that

13 they have to fulfill. I'm not saying you do. It's up to you

14 to make that determination. But I'm just raising it now,

15 because I don't want you to be wrong.

16 MR. STEIN: May I respond to that, or would

17 you rather me not?

18 THE COURT: I'm just -- you can respond to it

19 if you wish. I'm just asking you to take it into account.

20 MR. STEIN: Right. I guess what my concern

21 is, we're sitting in a deposition, and that -- and, you know,

22 deputy -- and information gets presented through the course

23 of a deposition, but the Court hasn't sat through all the

24 depositions and --

25 THE COURT: No, that's true.




269

1 MR. STEIN: -- this is the first witness, for

2 example, who has said that Chief Deputy Sheridan was at that

3 January 2nd meeting. No other witness has said so.

4 THE COURT: That's true.

5 MR. STEIN: And so --

6 THE COURT: That's why I raise that now,

7 because the hearing is going to start next week.

8 MR. STEIN: Right. So the basis for the

9 Court's concern about revising previous testimony is based in

10 part on the testimony that he was at that -- that -- I'm

11 concerned that the Court is forming impressions --

12 THE COURT: Well --

13 MR. STEIN: -- based upon hearing deposition.

14 THE COURT: I'm not forming impressions, and

15 I'm perfectly capable of listening and will listen to all the

16 witnesses. I'm raising things that I want you to consider

17 if, in fact, you feel like you have an obligation to

18 withdraw, because I want to know that now.

19 So I didn't know -- for example, I have no

20 basis to know or any basis to believe, Mr. Stein, that you

21 knew about this prior to my finding out about it. That's why

22 I've raised it.

23 There's also -- and it has to do with -- with

24 lawyers as witnesses. There's several others that are in the

25 3 point area. Maybe that's not applicable either, and I'm




270

1 not saying it is. I'm not saying I made a determination that

2 it is. But I think that you need to make such -- well, I

3 don't have any basis to believe that. That was my reply to

4 you. But we've just had the witness say that Mr. Popolizio

5 was in the meeting, that Mr. Masterson was in the meeting,

6 that Mr. -- did you say Casey? I think he said Mr. Casey --

7 or Mr. Liddy was in the meeting.

8 So we've got some -- I guess Liddy was wrong.

9 We've got some lawyers here in the present action, and

10 there's now been a suggestion that they may be a witness to

11 something. And they may not be a witness. No party may want

12 to call them. I'm not saying that's true. But because we've

13 got this hearing scheduled to start next week, I'm just

14 asking you, as lawyers, to consider that and to consider if

15 you feel like you have any obligation.

16 If you do, I want to know about it so that we

17 can take appropriate steps and see if we have to postpone

18 this thing. I don't want to postpone it, but I also don't

19 want to oblige any of you to violate what you think may be

20 your ethical obligations.

21 Since this is the first time I've heard this,

22 I thought I would raise it. That's all, Mr. Stein.

23 MR. STEIN: Fair enough. I appreciate the

24 clarification.

25 THE COURT: Mr. Woods?




271

1 MR. WOODS: Thank you, Your Honor. On a

2 different topic, it's occurred to me today that Friday's

3 deposition of Christine Stutz and Monday's deposition of Tom

4 Liddy are going to be missing you. And because they're going

5 to be missing you, when they believe that they have an

6 obligation to keep information confidential under 1.6, there

7 won't be a judge there to tell them that they have to abandon

8 that obligation. And until there's a judge here to tell them

9 that, I think they're under the obligation to keep

10 information confidential under 1.6.

11 And I hate to think that we have to have

12 supervised depositions, but I note in the Liddy deposition it

13 will come up often, and the Stutz probably less often. But

14 in the Liddy deposition, it's going to come up as many times

15 as it did today with Mr. Casey. And I -- I just needed to

16 put it out there so we can decide how we're going to deal

17 with it.

18 THE COURT: Well, when is -- Friday we have a

19 status conference. I'm available for part of Friday, but I

20 would appreciate it if I wouldn't have to -- have to have it

21 here or if you could call me on the phone. I'm aware of the

22 issues.

23 Monday I'm completely unavailable. Depending

24 upon how I rule on the pending motion that relates to whether

25 or not privileges have been waived regarding advice or




272

1 directions given concerning not disclosing the 1459 IDs,

2 there may be more depositions we have to notice up for

3 Tuesday. So maybe we can take it up in that light. But I am

4 going to be ruling on this.

5 And I -- and I haven't changed my direction,

6 Mr. Stein, to you or to anybody else that if you want to

7 provide me authority that would be of assistance to me in

8 deciding this question, then tell me. But I will make a

9 ruling Friday morning. And we may have to have Mr. Casey

10 back to answer these questions related to this meeting. As

11 it is now, I've directed him not to answer, although I'm

12 still going to allow you to follow up when you come.

13 I may determine that based on who was at the

14 meeting there is no attorney-client privilege anyway.

15 Mr. Masterson may withdraw his -- his feeling about that. I

16 don't know. But we're just going to go step by step,

17 assuming I'm still going to hold that the meeting -- that I

18 still want to consider the question. I'm inviting you or

19 anybody else to put forward whatever information you can for

20 me by Friday morning, and I'll take a look at it.

21 I'm really not available much of tomorrow. If

22 you can get it to me by tomorrow night, I will read it

23 overnight and try and have some -- some ruling on it by the

24 morning.

25 Any other question, Mr. Stein?




273

1 MR. STEIN: No, thank you.

2 MS. WANG: Your Honor, we -- we all have a lot

3 on our plates between now and Friday morning. May we submit

4 a list of authorities?

5 THE COURT: Yes, you may. Just -- and I would

6 prefer that.

7 MS. WANG: Thank you.

8 THE COURT: I will read the list of

9 authorities. And, you know, develop whatever you want now

10 that you think might throw light on the privilege without me

11 requiring Mr. Casey to ask -- answer that last question.

12 MS. WANG: All right. Thank you, Your Honor.

13 BY MS. WANG:

14 Q. Mr. Casey --

15 MR. MASTERSON: Wait. We were going to take a

16 little short break.

17 MS. WANG: Oh, I'm sorry. Okay.

18 (Recess from 4:31 p.m. to 4:47 p.m.)

19 BY MS. WANG:

20 Q. All right. Mr. Casey, let me continue asking you

21 some questions. We'll see if we can get anywhere further on

22 this and tee it up for the judge's ruling.

23 The documents that we just looked at,

24 Exhibit F of my declaration, were those -- were copies of

25 those handed around at this meeting?




274

1 A. I don't remember that, if there was one copy

2 circulated or if there were multiple copies. I don't

3 remember.

4 Q. Did you leave that meeting with a copy?

5 A. I did not.

6 Q. You've already testified that Sheriff Arpaio did

7 speak during that meeting; is that correct?

8 A. Yes.

9 Q. Without telling me what he said, was it your

10 understanding that he was seeking the legal advice of any of

11 the attorneys in the room when he spoke on the subject of the

12 confidential informant's allegation about a conspiracy?

13 MR. POPOLIZIO: Foundation.

14 THE WITNESS: I don't know. And I believe he

15 spoke towards the end, but I don't know.

16 BY MS. WANG:

17 Q. Did he speak after the attorneys in the room had

18 spoken?

19 A. I don't remember that.

20 Q. Did anyone other than Sheriff Arpaio and the

21 attorneys in the room speak on the subject of the allegation

22 concerning this conspiracy?

23 MR. POPOLIZIO: Form.

24 MS. CLARK: Continuing objection on

25 confidentiality under ER 1.6.




275

1 THE COURT: Confidentiality obligation is

2 overridden.

3 THE WITNESS: I don't -- I'm sorry. I don't

4 remember.

5 BY MS. WANG:

6 Q. You mentioned that there was one person on the

7 telephone; is that right?

8 A. No. I had the -- my memory of the meeting -- and I

9 thought it was earlier than January 14th, but my memory is

10 there were two people. And my impression was they were

11 calling from out of state, and they were --

12 Q. Okay.

13 A. -- employees of MCSO.

14 Q. Were they on a speakerphone in the room?

15 A. They were.

16 Q. And your impression was they were both employees of

17 MCSO?

18 A. Yes.

19 Q. Was your impression that those two people were

20 together in the same place or calling in from different

21 locations?

22 A. My impression was they were in the same place.

23 Q. Was that in Seattle?

24 A. That's my impression, yeah.

25 Q. All right.




276

1 A. I believe that's where they were calling from.

2 Q. Okay. Do you recall whether Sergeant Travis Anglin

3 was present?

4 A. You know, the name -- I -- I'm familiar with the

5 name, but I don't -- I'm -- I'm sure I've met that person,

6 but I'm embarrassed to say if that person walked in, I

7 probably -- I might recognize the person but not match the

8 name.

9 Q. All right. You mentioned that you believe

10 Captain Bailey was present; is that right?

11 A. I'm going off of my best memory, even though it was

12 what, a little over a year ago? He -- I believe he was.

13 Q. Do you recall whether Captain Bailey spoke on the

14 subject of an alleged conspiracy involving the Court and the

15 Department of Justice?

16 A. I don't remember that.

17 Q. Okay. You mentioned that your recollection is that

18 Lisa Allen may have been there; is that right?

19 A. She may have been there. Yes.

20 Q. You testified earlier today that Lisa Allen is the

21 head of MCSO's Public Information Office; is that right?

22 A. That's my understanding, yes.

23 Q. Is her job essentially to -- to do publicity for

24 the sheriff's office?

25 A. Yes.




277

1 Q. Do you recall whether she spoke on the subject of

2 an alleged conspiracy involving the Court, the Department of

3 Justice, and the Covington & Burling law firm?

4 A. I do not remember that. I -- I have a general

5 memory that most of the MCSO people were quiet except for the

6 people talking on the phone.

7 Q. Did you do anything in relation to the Seattle

8 investigation?

9 Do you understand what I mean when I say --

10 A. No.

11 Q. Okay. Let me -- let me withdraw that.

12 Did you do anything relating to the alleged

13 conspiracy involving the Court, the Department of Justice,

14 and Covington & Burling after this meeting?

15 MS. CLARK: Objection. Attorney-client

16 privilege. Confidential. Work product.

17 BY MS. WANG:

18 Q. Tell me to the extent you can answer that without

19 revealing any attorney-client communications.

20 MS. CLARK: I still have the objection based

21 on confidentiality and work product.

22 THE COURT: Those are overruled.


24 BY MS. WANG:

25 Q. To the extent you can tell me without revealing




278

1 attorney-client communications, what did you do to follow up?

2 MS. CLARK: Just a continuing objection,

3 Judge.

4 THE COURT: On what basis?

5 MS. CLARK: All three bases.

6 THE COURT: They're all overruled.

7 THE WITNESS: I remember lawyers talking

8 amongst ourselves. I can remember talking to, you know -- I

9 thought Jack MacIntyre was there. I thought Jerry Sheridan

10 was there, but my memory is not perfect. This thing was --

11 this thing was so ridiculous on its face in everything that I

12 heard, and I remember sharing with whoever I talked to that

13 the timeline, I could hire my son, that that information was

14 publicly available -- I believe was publicly available

15 information, and it had some sex appeal because supposedly

16 someone was monitoring Jones, Skelton & Hochuli's -- I think

17 Joe's telephone line.

18 But it -- it had nothing to it. It was -- it

19 was out -- it was whacked is the best way I could describe it

20 to you to use kids' terms. It was -- but that's what I

21 remember sharing.

22 BY MS. WANG:

23 Q. At the time of this meeting, were you -- you were

24 co-counsel with Tom Liddy; correct?

25 A. I was.




279

1 Q. Were you co-counsel with Mr. Masterson and

2 Mr. Popolizio?

3 A. No, but they had the DOJ case that had very

4 overlapping.

5 Q. Did you have a joint defense agreement?

6 A. In principle, we certainly did.

7 Q. It was the same client?

8 A. Same client; same interests.

9 Q. Well, did they -- in that case, at that time, the

10 defendants in this case were the sheriff -- well, withdrawn.

11 Did you receive any information during the

12 meeting -- let's call it the January 2nd meeting, even if

13 it -- you -- you don't recall the exact date. But just for

14 convenience, will you agree that we're talking about this

15 meeting?

16 A. I know I went to some meeting in which this

17 material was discussed.

18 Q. Okay. I just -- want -- I just want to shorthand

19 it as the January 2nd meeting.

20 During the January 2nd meeting, did you see

21 any information suggesting that the confidential informant

22 had accessed telephone records of -- telephone records or any

23 electronic communications of the Jones Hochuli -- Jones

24 Skelton Hochuli firm?





280

1 THE WITNESS: I didn't see anything. I heard

2 that there was representations that there was a duplication

3 of some sort of NSA/CIA data dump that this person had access

4 to, and that's where supposedly he got this information.

5 That's my memory.

6 BY MS. WANG:

7 Q. Did you see any information or hear any information

8 during this meeting suggesting that telephone records or

9 other electronic communications of anyone at the law firm of

10 Covington & Burling had been accessed?

11 And feel free to refer to the document if that

12 helps you.

13 A. I do remember there was something about the effect

14 of phone calls between -- you know, it wasn't Stan Young. It

15 wasn't any of the lawyers that I had met, but, like, people

16 out of your DC office supposedly talking with Eric Holder or

17 Lanny Breuer. There was something about a clerk that either

18 worked for or used to work for Judge Snow supposedly

19 communicating with somebody. And I don't remember the

20 details, but that's -- that's what I remember.

21 Q. Did you see any information that electronic

22 communications of any of those people you just described had

23 been somehow accessed, although they were private?

24 A. I didn't see anything.

25 Q. Did you hear that?




281

1 A. It -- I was left with the impression that somehow,

2 somewhere there was some data that connected phone calls

3 between people that supposedly did this. I'm looking at your

4 Exhibit 2524 at Exhibit F, this -- this chart, this flowchart

5 that emanates from the DOJ. That somehow there was -- there

6 was some telephonic connection, but we didn't see that. But

7 we -- that's what was represented as supposedly -- supposedly

8 potentially available.

9 Q. Did you hear any represent -- representation that

10 the confidential informant had access to the content of

11 electronic communications between any of the people you just

12 mentioned: Judge Snow's law clerk; somebody at Covington &

13 Burling's DC office?

14 A. I don't --


16 THE WITNESS: I don't remember that, and I

17 don't believe that got down to that nitty-gritty. It was

18 mostly that -- just to confirm that a call was placed from

19 this number and went to this number and lasted whatever

20 period of time.

21 BY MS. WANG:

22 Q. And just to be clear, your understanding, based on

23 what you heard at that meeting, was that the information had

24 been obtained somehow from the CIA or the NSA?

25 A. That was my -- that's my memory, which raised




282

1 questions about how did this CI obtain this information from

2 what I understood was a former employer?

3 Q. Did you raise any concerns about that during this

4 meeting?

5 A. I don't know if I did at the meeting.

6 Q. Did there come a time when you did?

7 MS. CLARK: Continuing objection, Judge.

8 Attorney-client privilege. Confidentiality. Work product.

9 THE COURT: Sustained. At least for now.

10 BY MS. WANG:

11 Q. I just want to circle back and make sure that I got

12 a full answer to my question whether -- to the extent you can

13 answer this question without revealing attorney-client

14 communications, what did you do after this meeting that

15 related to the alleged conspiracy?

16 MS. CLARK: Objection on work product.

17 Confidentiality. And I believe it would be for Mr. Popolizio

18 to raise privilege.

19 MR. POPOLIZIO: Can I hear the question again,

20 Ms. Court Reporter.

21 (The requested record was read.)

22 MR. POPOLIZIO: Well, the question

23 specifically is whether he can answer, so it would be yes or

24 no that -- without revealing any privileged communications.

25 So I'm going to wait, Your Honor.




283

1 MS. CLARK: I'm objecting --

2 THE COURT: Okay.

3 MS. CLARK: -- on work product.

4 THE COURT: I'm going to overrule the

5 objection. It doesn't deal with his impressions. It deals

6 with what he did. So I'm going to overrule the objection and

7 allow him to answer the specific question asked.

8 THE WITNESS: What was the question again?

9 (The requested record was read.)

10 THE WITNESS: That's more than a yes or no.

11 MR. POPOLIZIO: Yeah.

12 MS. WANG: It is.

13 THE COURT: It is.

14 THE WITNESS: And am I --

15 MR. POPOLIZIO: Therefore, on that basis, Your

16 Honor, I'll assert the -- I will assert -- I will object and

17 assert the attorney-client privilege work product and to the

18 extent that it asks for any mental impressions or legal

19 analysis.

20 THE COURT: I will overrule the objection to

21 the extent it is based on the work product privilege, 1.6,

22 and anything Mr. Casey did that did not involve

23 communications with his client. To the extent it would

24 involve client communications, you should not answer the

25 question, Mr. Casey.




284

1 THE WITNESS: I'm unable then to answer the

2 question, because my communications were to my client.

3 BY MS. WANG:

4 Q. Did you do anything other than communicate with

5 your client after the meeting in relation to this alleged

6 conspiracy?


8 THE WITNESS: Yeah. I remember the lawyers

9 talking, and I remember talking to my co-counsel. And it was

10 a dead issue in my book. It was worthless. It was

11 vindictive, and we would have no part of it.

12 BY MS. WANG:

13 Q. When you say "we," who do you mean?

14 A. I said for the defense team, but I was talking

15 about myself and my law firm. And my memory is, is that I

16 was joined in that by my co-counsel. There were going to be

17 no use of this in any circumstances under any way. Whatever

18 it is, we want nothing to do with it.

19 Q. How did you find out about the meeting?

20 A. I -- I don't remember. We probably -- I don't

21 remember. It was called. It was summoned. We showed up and

22 all gathered into a big room.

23 Q. Did you -- were there -- did you attend any other

24 meetings at which this alleged conspiracy was discussed?

25 A. I only remember one. And nothing -- that one




285

1 meeting was the first, and that was the last.

2 MS. WANG: All right. I think that is all I

3 have for you. Thank you.

4 THE WITNESS: Thank you.

5 THE COURT: Who wants to question the witness?

6 Mr. Walker?

7 MR. WALKER: I have -- I have a few questions.

8 Thank you, Your Honor.

9 MS. WANG: Let me move.

10 THE COURT: You know, before you start,

11 Mr. Walker, I just guess -- I think I need to give a little

12 more guidance on the Friday morning thing.

13 Although I will be interested if you have

14 authority that suggests that statements made by clients

15 during a meeting are possibly not subject to the privilege, I

16 think I'm inclined to give Sheriff Arpaio the benefit of the

17 doubt since he has so many attorneys here. The real issue

18 then is going to be given -- is going to be whether given the

19 identity and the number of persons that were present at the

20 meeting, whether the attorney-client privilege applies.

21 Everybody understand that? Okay.

22 MR. YOUNG: Your Honor, if I can interpose a

23 question or an issue. There may be differences in the

24 memories of various witnesses about who was at the meeting --

25 THE COURT: Uh-huh.




286

1 MR. YOUNG: -- and those differences may,

2 depending on how we -- those differences may point to

3 different results on the issue --

4 THE COURT: I see what you're saying.

5 MR. YOUNG: -- whether the meeting is

6 privileged.

7 THE COURT: I see what you're saying. Maybe

8 we'll have to -- maybe I can't make the decision Friday

9 morning. Maybe we'll just have to apply all of the testimony

10 that we have, and I'll consider it in its totality prior to

11 the beginning of the hearing. And if we need to do that,

12 we're obviously going to have to do some scheduling on

13 Friday. I will try to make it -- if you will let me know

14 which witnesses that you may be calling that were in that

15 meeting. And I don't know whether waiver's an issue. I

16 mean --

17 MR. YOUNG: Well, it's not just witnesses, but

18 actually counsel for the sheriff have taken different

19 positions in different depositions with respect to that

20 meeting, or at least parts of that meeting, which is why we

21 have testimony about the content of the meeting from some

22 witnesses but not from Mr. Casey so far.

23 THE COURT: We already have testimony about

24 this meeting from other witnesses?





287

1 THE COURT: Who has testified?

2 MS. WANG: As far as I recall, Chief Deputy

3 Sheridan had some testimony on it. He did not recall the

4 meeting. Did not recall being at any such meeting.

5 And Sergeant Anglin also testified.

6 And Mr. Young is right. I think -- I was not

7 present at the Anglin deposition, but I do believe there have

8 been different positions taken by defense counsel as to the

9 privilege issues.

10 MR. YOUNG: Well, and then specifically

11 whether Mr. Montgomery was part of the conversation or not.

12 And I think for those witnesses who have -- or recall that

13 Mr. Montgomery was part of the conversation, there's been no

14 assertion of privilege to bar testimony about what was said

15 while he was in the conversation.

16 THE COURT: Well, then does that amount to

17 waiver? I guess I'd invite that question.

18 MS. WANG: I think there may be waiver issues

19 as well, yes, but we would need to take a look at the

20 deposition transcripts.

21 THE COURT: Well, it sounds to me like maybe I

22 better look at the totality of the circumstances before I

23 make any rulings.

24 MR. YOUNG: Yeah. The issue with Mr. Casey

25 may be because Mr. Montgomery was on the phone and -- and




288

1 Mr. Casey had never met or --

2 THE COURT: Well, I mean, I don't -- you

3 know --

4 MR. YOUNG: Yeah.

5 THE COURT: -- I understand, but we're not

6 going to characterize that now.

7 Let me see what the sworn testimony is, and

8 then you can try and characterize the sworn testimony. But

9 we'll realize really what the whole totality of the issue is,

10 or if I can get actual descriptions of what the various

11 witnesses have said about it.

12 MR. POPOLIZIO: Your Honor, in terms of -- of

13 defining who the various witnesses who have testified on this

14 issue in deposition, I heard Chief Sheridan and Travis

15 Anglin. Were there any others?

16 THE COURT: Those are the two I heard.

17 MS. WANG: I think Captain Bailey also may

18 have testified on this. I took that deposition and confess

19 that I do not have a clear memory, but I -- I do believe I

20 asked him about the meeting.

21 THE COURT: All right.

22 MR. POPOLIZIO: Thank you.

23 THE COURT: Any -- any further issues on that?

24 All right. Mr. Walker.

25 MR. WALKER: Thank you, Your Honor.




289

1 E X A M I N A T I O N

2 BY MR. WALKER:

3 Q. Mr. Casey, you were lead counsel for the defense in

4 this case in the fall of 2009; correct?

5 MS. CLARK: Again, I'm going to just go back

6 and refer to my prefatory statement, and the final portion of

7 which stated that if counsel for any of the defendants

8 questioned Mr. Casey, that I'm -- he -- I've instructed him

9 to presume that that counsel has conferred with their

10 respective client and that they are waiving the

11 attorney-client privilege that might be invoked otherwise for

12 the information that responds to that question which

13 Mr. Casey's being asked.

14 I hope that was clear as mud. I'm sorry.

15 It's getting late, and I'm getting tired. But my prefatory

16 statement was he's going to presume there's been a waiver of

17 the privilege if he's questioned by defense counsel.


19 MR. WALKER: In response to Ms. Clark's

20 comments, that -- I will represent to you that in this

21 proceeding, I represent Maricopa County. I do not represent

22 the sheriff.

23 BY MR. WALKER:

24 Q. Do you understand that?

25 A. I hear what you're saying.


EXHIBIT D


Sheridan, Gerard - Vol. 4 9/15/2015 9:16:00 AM

IN AND FOR THE DISTRICT OF ARIZONA

MANUEL DE JESUS ORTEGA )

MELENDRES, et al., )

)

Plaintiffs, )

)

vs. )No. CV-07-2513-PHX-GMS

)

JOSEPH M. ARPAIO, et al., )

)

Defendants. )

)

VIDEOTAPED DEPOSITION OF GERARD SHERIDAN

VOLUME IV

(Pages 355 to 685, inclusive)

Phoenix, Arizona

September 15, 2015

9:16 a.m.

REPORTED BY:

PAMELA A. GRIFFIN, RPR, CRR

Certified Reporter

Certificate No. 50010

PREPARED FOR:

CONDENSED/ASCII

(Certified Copy)

Manuel de Jesus Ortega Melendres Unsigned Page -



1 and lack of performance flies in the face of his numerous

2 promises pledging to complete the work," et cetera.

3 Seems to me based on this e-mail that

4 Mike Zullo was still demanding work product from

5 Dennis Montgomery as of April 20th, 2015.

6 Did you know that that was happening?


8 THE WITNESS: I know that we had paid

9 Dennis Montgomery an awful lot of money, and he had

10 nothing to show for it, and that on occasion Mike would

11 contact him. Yes, I was aware of that.

12 BY MS. WANG:

13 Q. And you're aware that Mike Zullo was doing that

14 up till April 20th of 2015?



17 THE WITNESS: I don't recall when, but

18 obviously this e-mail gives me that date.

19 BY MS. WANG:

20 Q. And -- okay.

21 Do you recall a meeting about the Seattle

22 investigation on or about January 2nd, 2014? And this

23 would have been with Travis Anglin, Tim Casey, Tom Liddy,

24 John Masterson, Joe Popolizio.

25 A. No.

Manuel de Jesus Ortega Melendres Unsigned Page 614




2 COUNTY OF MARICOPA ) 3 BE IT KNOWN that the foregoing proceedings were

taken before me; that the witness before testifying was 4 duly sworn by me to testify to the whole truth; that the

foregoing pages are a full, true, and accurate record of 5 the proceedings, all done to the best of my skill and

ability; that the proceedings were taken down by me in 6 shorthand and thereafter reduced to print under my

direction. 7

I CERTIFY that I am in no way related to any of 8 the parties hereto, nor am I in any way interested in the

outcome hereof. 910 [X] Review and signature was requested.

[ ] Review and signature was waived.11 [ ] Review and signature not required.12

I CERTIFY that I have complied with the ethical13 obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206

J(1)(g)(1) and (2).14 Dated at Phoenix, Arizona, this [!DATE] day of

[!MONTH], 2015.1516

_____________________________ ______17 PAMELA A. GRIFFIN, RPR, CRR

Certified Reporter18 Arizona CR No. 5001019

* * * * *2021 I CERTIFY that GRIFFIN & ASSOCIATES, LLC, has

complied with the ethical obligations set forth in ACJA22 7-206 (J)(1)(g)(1) through (6).23

_____________________________________24 GRIFFIN & ASSOCIATES, LLC

Registered Reporting Firm25 Arizona RRF No. R1005

Manuel de Jesus Ortega Melendres Unsigned Page 685


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