melendres v. arpaio #1522 | nov 3 2015 transcript - status conference

8/20/2019 Melendres v. Arpaio #1522 | Nov 3 2015 TRANSCRIPT - Status Conference

1/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

)))

)))

)

)

)))

No. CV 07-2513-PHX-GMS

Phoenix, Arizona

November 3, 2015

3:08 p.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Telephonic Conference)

Court Reporter: Gary Moll

401 W. Washington Street, SPC #38

Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription


2/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Melendres v. Arpaio, 11/3/15 Telephonic Conference 2

A P P E A R A N C E S

For the Plaintiffs:American Civil Liberties Union Foundation

Immigrants' Rights ProjectBy: Cecillia D. Wang, Esq.39 Drumm Street

San Francisco, California 94111

American Civil Liberties Union Foundation

Immigrants' Rights Project

By: Andre Segura, Esq.

125 Broad Street, 18th FloorNew York, New York 10004

American Civil Liberties Union of ArizonaBy: Daniel J. Pochoda, Esq.P.O. Box 17148

Phoenix, Arizona 85011

Covington & Burling, LLPBy: Stanley Young, Esq.

By: Michelle L. Morin, Esq.

333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065

Mexican American Legal Defense and Educational Fund

By: Jorge M. Castillo, Esq.634 S. Spring Street, 11th Floor

Los Angeles, California 90014

For the Defendant Maricopa County:

Walker & Peskind, PLLCBy: Richard K. Walker, Esq.

SGA Corporate Center16100 N. 7th Street, Suite 140


For Chief Deputy Gerard Sheridan:

Mitchell Stein Carey, PCBy: Lee D. Stein, Esq.

1 Renaissance Square

2 North Central Avenue, Suite 1900Phoenix, Arizona 85004


3/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


A P P E A R A N C E S

For the Intervenor United States of America:U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.601 D. Street NW, #5011Washington, D.C. 20004

For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:

Iafrate & Associates

By: Michele M. Iafrate, Esq.

649 N. 2nd AvenuePhoenix, Arizona 85003

Jones, Skelton & Hochuli, PLCBy: A. Melvin McDonald, Jr., Esq.By: John T. Masterson, Esq.

By: Joseph T. Popolizio, Esq.2901 N. Central Avenue, Suite 800


For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq.P.O. Box 20527


For Deputy Chief Jack MacIntyre:

Dickinson Wright, PLLCBy: David J. Ouimette, Esq.

1850 North Central Avenue, Suite 1400


For Executive Chief Brian Sands:Lewis, Brisbois, Bisgaard & Smith, LLP

By: M. Craig Murdy, Esq.

2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012

For Lieutenant Joseph Sousa:

David Eisenberg, PLC - Appearing in person

By: David Eisenberg, Esq.2702 N. 3rd Street, Suite 4003Phoenix, Arizona 85004

Also present: Mr. Michael Zullo


4/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:0

15:0

15:0

15:0

15:0


P R O C E E D I N G S

THE CLERK: This is civil case number 07-2513,

Melendres, et al., v. Arpaio, et al., on for telephonic

conference.

Counsel, please announce your appearances.

MR. YOUNG: Good afternoon, Your Honor. Stanley Young

and Michelle Morin, Covington & Burling, for plaintiffs.

MR. POCHODA: Dan Pochoda, ACLU of Arizona, for

plaintiffs.

MS. WANG: Cecillia Wang and Andre Segura of the ACLU

for plaintiff.

MS. COE: Cynthia Coe --

MR. CASTILLO: Jorge --

MS. COE: Sorry. Cynthia Coe for the United States.

MR. CASTILLO: Jorge Castillo for MALDEF on behalf of

plaintiffs.

MR. MASTERSON: John Masterson and Joe Popolizio for

Sheriff Arpaio and the individual contemnors.

MR. WALKER: Richard Walker --

MR. McDONALD: Mel McDonald -- I'm sorry.

Mel McDonald making a special appearance for Sheriff Joe

Arpaio.

MR. WALKER: Richard Walker appearing on behalf of

Maricopa County.


5/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:0

15:0

15:1

15:1

15:1


MR. MURDY: Craig Murdy on behalf of retired Chief

Brian Sands.

MR. OUIMETTE: David Ouimette, specially appearing for

Deputy Chief MacIntyre.

MS. IAFRATE: Michele Iafrate on behalf of Sheriff

Arpaio and the alleged nonparty contemnors.

MR. STEIN: Lee Stein, specially appearing for Chief

Deputy Sheridan.

MR. EISENBERG: David Eisenberg, Your Honor, specially

appearing on behalf of Lieutenant Joseph Sousa.

THE COURT: Mr. Zullo, are you present?

MR. ZULLO: Yes, sir. I'm present without counsel.

THE COURT: Do you know, Mr. Zullo, I heard you say,

"Yes, sir," but I didn't hear anything after that. So could

you get closer --

MR. ZULLO: Yes.

THE COURT: -- to your phone and speak as distinctly

and loudly as you can?

MR. ZULLO: Yes, sir. I am present without counsel.

I have no representation.

THE COURT: Okay. You're present representing

yourself, then, sir. Is that --

MR. ZULLO: Well, not that I really want to. I'm just

invited to a conference call. I really just want counsel.

THE COURT: I understand that you want counsel, and


6/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


we're going to take that up first.

As you noticed, I denied your motion for an extension

of time to negotiate with the County to provide you counsel,

and I wanted to explain to you why, and what is left to do on

your motion, what I've designated to be treated as your motion

for protective order.

I don't know if you got served by the County with

document 1503.

Mr. Walker, did you arrange for Mr. Zullo to get a

copy of that document?

MR. WALKER: I did not, Your Honor.

THE COURT: All right. Well, Mr. Zullo, before I

ruled on your motion for extension, the County filed a response

to your motion for extension, and in that response they

indicated that they are not going to fund separate counsel for

you.

Now, I realize by dint of what you've said that you

believe that they have funded, the County has funded, separate

counsel for other persons involved in this case. It is true

that they have funded separate representation for Chief Sands,

but that is, in my understanding, because Chief Sands is a

separately named possible contemnor, separately named in my

order to show cause.

You've also asserted that they have provided

representation for -- separate representation for Mackiewicz


7/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


and Anglin. I must tell you that the record does not reflect

that. It is true that Detective Mackiewicz did appear with

separate counsel, but I have no knowledge that the County

funded that counsel.

Mr. Walker, do you care to address that?

MR. WALKER: Yes, Your Honor. Thank you.

The County is not providing counsel to

Detective Mackiewicz.

THE COURT: All right. So I heard somebody drop off

the call or add to the call. Is somebody new on the call?

Mr. Zullo, are you still on the call?

MR. ZULLO: Yes, sir.

THE COURT: All right. And so I really didn't see any

purpose, Mr. Zullo, in extending time for you to negotiate with

the County to obtain the new counsel when the County is not

going to fund new counsel for you. And by virtue of the

pleadings that I'd received in this case, it was my

understanding that you were aware as early as October 20th that

Mr. Popolizio and Mr. Masterson had informed you that they were

representing your interests.

And so I feel like, in light of the fact that the

County is not going to fund for you to obtain separate counsel

and we're in the middle of this proceeding, you were either

going to get your own counsel at your own expense or you

weren't, and there wasn't any reason to prolong this matter.


8/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


And I understand that you don't necessarily agree with

my ruling and that you moved to stay it, but do you at least

understand why I've ruled the way I've ruled?

MR. ZULLO: Sir, I just need to know if I can respond

to you but I want to make sure I'm not waiving any privilege in

doing so.

THE COURT: Do you know, Mr. Zullo, again, you're

fading away and I can't hear you. So are you speaking on a

speakerphone or something?

MR. ZULLO: I have it on my iPhone so I could take

some notes at the same time.

Is this any better for you?

THE COURT: It's a little bit better but you're still

pretty faint. Could you speak up?

MR. ZULLO: All right. I'm going to change it.

How is this now, sir?

THE COURT: It's much better. Thank you.

MR. ZULLO: Okay. I apologize.

THE COURT: No problem.

MR. ZULLO: My question was is if I can respond to

you, but I don't want to waive any privilege in doing so.

THE COURT: Well, you can respond to me, and to the

extent that you're asserting a Fifth Amendment privilege, which

I've recognized by directing the parties to respond to it,

you're not going to waive your Fifth Amendment privilege by


9/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


responding to me. I don't know what other privilege you would

be concerned about waiving.

MR. ZULLO: Well, that's -- that's what I'm concerned

about. So to respond to you, and as I stated in my deposition,

I had fully intended to appear in my deposition and cooperate

with your request in this proceeding, and it was two days prior

that I was notified that I had no counsel, and that is

contradictory to months of different representation.

It put me in a quandary, and I immediately left town

seeking to remedy that. As far as the issues with the County,

I have not formally approached the County yet and I was looking

for time to do so. I am caught here now under a direct threat

that I made well known months ago to Mr. Popolizio that it was

very concerning to me, and that matter should have been

addressed at some point and it wasn't, and the notification

that I had no counsel was two days before when I brought the

issue up again.

So I'm kind of in a quandary here. I'm out in limbo.

I've basically been abandoned as far as, you know, I am

concerned.

THE COURT: Mr. Popo- -- oh, I'm sorry.

MR. ZULLO: And it's unnerving -- excuse me, sir?

THE COURT: Go ahead. I thought you were finished.

Please finish.

MR. ZULLO: It's unnerving to be, especially even on


10/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


this telephone call, with lawyers of the caliber that are here,

just wanting to protect my rights. That's all I'm looking to

do.

THE COURT: All right. Mr. Popolizio or

Mr. Masterson, do you wish to say anything?

MR. MASTERSON: Well, Judge, I mean, we disagree with

statements made by Mr. Zullo with respect to any --

THE COURT: You know, Mr. Masterson, I can barely hear

you, too. Could you please start over again and speak more

loudly?

MR. MASTERSON: Okay. Is this a little better, Judge?

THE COURT: It is better. Thank you.

MR. MASTERSON: Okay. We certainly disagree with

statements made by Mr. Zullo concerning representation, but I

don't know that that adds anything to the issues being

considered by the Court at this point. And if you want to get

into that, I can certainly address them further, but I don't

know that that clarifies any issues for you that need to be

considered with respect to moving forward.

THE COURT: All right. Well, thank you.

Let me tell you, Mr. Zullo, it seems to me pretty

clear that if you are going to have a lawyer in this action,

you're going to have to hire and pay for that lawyer yourself,

and I think that my rulings have made that pretty clear.

But the one thing I wanted to make sure that you did


11/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:1


know, because you may have not received it, and Mr. Walker

confirms that you did not, is that last -- was it Friday,

Mr. Walker? -- before I denied your request for an extension,

Mr. Walker filed with this Court a statement that is quite

clear that the County is not going to pay for your retention of

a separate lawyer.

And I am disinclined, when we are in the middle of

this action, to give you 30 days to find a lawyer, and you've

already known since October 20th that you'd have to find a

lawyer. And so here we are on November 3rd, which is two weeks

later, and you still don't have a lawyer.

There has been, and I have treated your request for

motion for extension as a request for protective order based on

the Fifth Amendment, and the plaintiffs have now responded to

that motion. If you're going to get a lawyer, I'm inclined to

give you a few extra days so that they can reply if they wish.

But I will give you till -- I'm inclined to give you until

Friday at noon to reply to the response. And if you wish to

hire a lawyer, you can hire a lawyer, and they have until

Friday at noon to reply and put whatever they wish in that

reply.

If the parties want oral argument on the motion I am

busy all day on Friday but I have a brief window at 3 o'clock

in the afternoon, so I will schedule 3 o'clock in the afternoon

this Friday for an oral argument on Mr. Zullo's motion for


12/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:1

15:1

15:1

15:1

15:2


protective order.

Does anybody object to proceeding in that fashion?

MR. YOUNG: This is Stanley Young, Your Honor, for

plaintiffs. No, we do not.

MR. MASTERSON: John Masterson, Judge. No objection.

MR. WALKER: Richard Walker, Your Honor. No

objection.

MS. COE: Cynthia Coe --

MR. MURDY: Craig Murdy, Your Honor. No objections.

MS. COE: Cynthia Coe. No objection.

THE COURT: All right. Then that is how we are going

to proceed.

Mr. Zullo, did you understand my ruling?

MR. ZULLO: I do, sir, and do I get a copy of some of

his -- of Mr. Popolizio's response? I don't have that.

THE COURT: Do you know, Mr. Popolizio did not

respond, but Mr. Young -- I think it was you, Mr. Young; I

can't remember whether it was you or Ms. Wang -- but plaintiffs

have responded to your motion.

Did plaintiffs send a copy of the response to

Mr. Zullo?

MR. YOUNG: This is Stanley Young, Your Honor. We

have filed two papers, I think one on Friday and one yesterday,

and I will e-mail those to you, Mr. Zullo.

You have e-mailed to attorneys several things from


13/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


your 1tick e-mail and we will use that e-mail address.

Is that okay?

MR. ZULLO: Yes, that will be fine. Thank you, sir.

MR. YOUNG: Sure.

THE COURT: All right. Now, Mr. Zullo, you are

entitled, of course, to be heard at 3 o'clock on Friday, so if

you wish to be here, please be here.

One moment. My clerk is looking at my crossly, so

maybe I did something wrong here.

(Off-the-record discussion between the Court and the

clerk.)

THE COURT: All right. So I'm going to move oral

argument to 3:30. Is that still workable for everybody?

Wait a minute.

MR. YOUNG: Yes, Your Honor.


clerk.)

THE COURT: We're going to move the oral argument to

3:30. And Mr. Zullo, you have a right to be here and be heard

if you wish to be here and be heard.

MR. ZULLO: Yes, sir, I understand.

THE COURT: And I am treating it, Mr. Zullo, as your

motion, okay?

MR. ZULLO: Yes, sir.

THE COURT: Okay. That's how we'll proceed on that


14/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


matter.

As it pertains to the rest of the scheduling, if I

hear this matter at 3 o'clock -- or 3:30, I will be able to

rule, and I will rule promptly after I hear the arguments.

If I rule in favor of releasing the documents,

Mr. Masterson, are you going to have any problem providing them

to plaintiffs that Friday?

MR. MASTERSON: We will not, Judge.

THE COURT: All right. And if I rule that they are

protected, then they're protected. But it seems to me that it

gives rise to the following presumptive schedule: On the 9th

I'll make my ruling. Then, if in fact I rule that the

documents are to be released, it seems to me --

It's not the 9th, is it? It's the -- it's the 6th.

If the documents are going to be released, didn't you

represent to me, Mr. Young, that there were 80 some-odd

documents that you've not yet seen?

MR. YOUNG: Approximately 87, if I counted right.

THE COURT: All right. So that would give you the

7th, 8th, and 9th to review those documents.

Then I was going to ask you, Mr. Masterson -- I don't

know how the parties want to proceed, but I have the 10th, the

12th, and the 13th still reserved for this matter. We have

maybe Chief Deputy Sheridan, or his designee, that still must

testify in the defense case, and we had Captain Skinner that


15/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


was going to still testify in the defense case, is that right?

MR. MASTERSON: Yes, Your Honor, that's correct.

THE COURT: I'm wondering, if any deposition is going

to take place of Mr. Zullo, it seems to me that could take

place on the 11th. We could resume on the 10th with the

defense case of Chief Deputy Sheridan, if he is available to

testify, and Captain Skinner on the 10th.

Mr. Zullo's deposition, to the extent that the

plaintiffs wish to re-notice it, could be taken on the 11th.

Then we could resume matters on the 12th and/or 13th if that

was necessary.

Does that work for everyone?

MR. YOUNG: Stanley Young for plaintiffs. Yes, it

does, Your Honor.

MR. MASTERSON: Judge, this is John Masterson. Let me

give the Court the latest information that I have, and I hope

to have a little additional information --

THE COURT: Let me just indicate to you,

Mr. Masterson, before you do that, you did give us information

at sidebar that related to personal matters.

MR. MASTERSON: Yes.

THE COURT: There is a public audience in the court

here, just so you're aware.

MR. MASTERSON: Okay. Well, I apologize if I'm a bit

cryptic, then, on what I'm going to say.


16/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


The witness is having a procedure, probably as we

speak, and is under general anesthesia. I hope to get an

update probably tonight. I provided information to all the

parties yesterday concerning what I saw going forward, and my

projection was possibly we could have that witness testify

toward the end of next week, and if we could go forward with

Mr. Zullo's deposition, if it is in fact going forward, we

could do that earlier in the week.

And then my suggestion, I think, and unfortunately, my

computer just shut down while we're sitting here so I can't see

exactly what I said yesterday, but I think I suggested that we

start with Captain Skinner on Thursday and then the final

witness that we anticipated on Friday. And that was just me

being cautious with respect to the anticipated physical

condition of the final witness.

THE COURT: Well, I guess I get that, and there may be

various things that might be workable with Mr. Zullo and with

the other parties. For instance, Mr. Zullo might have his

deposition taken on the 10th.

Unfortunately, however, the 11th is a federal holiday.

I am available and will be working anyway, but I don't have the

staff to conduct a court session on the 11th, even though I

realize that probably all of you are working.

So I'm amenable to work out something on the 10th,

11th, 12th, and 13th, but I would like to finish the hearing


17/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


that week, and then we're going to have to -- we're going to

have to juggle the schedule to hear oral argument on -- well,

you know, as we've discussed, oral argument on my findings of

fact, and on whether or not there will be a criminal referral,

before we move on to the next stage of the process. We'll have

to figure a date that works out for everybody.

But do you think it's possible, Mr. Masterson, that

you and the plaintiffs, given those four days, together with

Mr. Zullo, can work out a time? I suppose you could do

Mr. Zullo on the 9th if Mr. Young thinks he could be ready, and

then we could hear Mr. Zullo on the 10th, but I don't know

whether that works for plaintiffs, defendants, or Mr. Zullo.

Do you think that the parties could get together with

Mr. Zullo on this phone call and work out something with

respect to those days that would make that workable?

I will just add, in case you thought that I was

available on the 9th, I'm not. I have proceedings all day. I

have another trial the next week, which will make it very

difficult for me to do much, if anything, the next week, except

for by hook and by crook we might be able to schedule something

in if we can get all the testimony finished on that second

week.

MR. YOUNG: Your Honor, this is Stanley Young for

plaintiffs. We would certainly try to do it on the 9th. It

depends, but depending on what happens with the other


18/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:2


witnesses, I could see the benefit of that for the schedule, so

we would be open to that if others are available that day.

THE COURT: Mr. Zullo, are you available on the 9th?

MR. ZULLO: Yes. I would make my schedule --

accommodate it to you, whatever needs to be done here, Your

Honor. And if I could add something --

THE COURT: Yes, you can, Mr. Zullo, but again, would

you get closer to your telephone?

MR. ZULLO: I'm sorry, sir. I am unfamiliar with the

document that the County has put forth. I still would like the

opportunity to address the County on this matter.

In addition, Mr. Popolizio has some 87 documents that

he put down into a list, and I would like to get copies of

those so I could at least know what he held back so I know what

I'm talking about. I have no idea what's still, you know, in

his reservoir of documents.

THE COURT: All right. Mr. Popolizio, assuming at

this point that I were to order production of the documents,

can you get -- in addition to the other parties, could you get

copies of those documents to Mr. Zullo on Friday?

MR. MASTERSON: Your Honor, this is Masterson. We'll

do that.

THE COURT: All right. Thank you.

I'm sorry, Mr. Masterson. I knew you were speaking.

MR. WALKER: Your Honor, this is Richard Walker. With


19/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:2

15:2

15:2

15:2

15:3


respect to Mr. Zullo's first point, as soon as we get off of

this call we will e-mail the document that we filed on Friday.

THE COURT: All right. I would appreciate that very

much.

Is there anything else you wanted, Mr. Zullo, that

would assist you?

MR. ZULLO: No, sir, I am satisfied right now. Thank

you.

THE COURT: All right. So I guess, then, it will be

my presumption that we will be holding the hearing next week.

I will ask the parties to work that out as soon as they're off

the call. And then get back to my courtroom deputy, Kathleen,

and tell her which days we will be holding hearing.

Keep in mind that I'm not available either on the 9th

or the 11th. So I will presume that we are going to be doing

10, 12, and 13, but I'd like to know the order in which things

are going to be going.

Any objection to that?

MR. YOUNG: For plaintiffs, Your Honor, no.

MR. MASTERSON: Masterson, Judge. No objection.

THE COURT: All right. Then I wanted to raise two

other quick issues with you while I have you on the line.

The clerk of the court informed me that we have

received a request from the press to access exhibits. I have

done some preliminary research into the matter just this


20/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


afternoon, and it does look to me like the press has a right to

have access to exhibits that have been admitted into evidence.

That creates a little bit of an issue in terms of

control of the evidence to make sure that the exhibits remain

in the control of the court while accessible to the public; and

it also creates a little bit of an issue, Mr. Masterson, with

respect to whether or not you're going to assert that any of

the line items on that exhibit that we discussed last week

justify being redacted. And I'm not sure whether there are any

other exhibits -- I don't recall admitting any other exhibits

subject to protective order.

But I would ask the parties to address that. It's

obviously going to be easier for the court clerk to make

available admitted exhibits to the press, if they want to see

them, sometime this week while trial is not in session, so that

she can control access; make sure that the integrity of the

exhibits remains in place.

But I wanted to give the parties a chance to comment

on acceptable procedures, such as, you know, requests -- I

would allow any of the parties to be here, if they have

concerns, while the press reviews the exhibits. I would

probably require the press to submit in advance the exhibits in

which they're interested, so that such exhibits be shown one at

a time in order to control their production, and I'm willing to

hear the parties -- any other concerns the parties have about


21/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


providing press access to the exhibits.

There are some exceptions to press access, and I'll

just give the parties the legal authority which entitles that

access and sets forth some of the exceptions so you can look at

it. It's San Jose Mercury News, 187 F.3d, 1096, 1103, Ninth

Circuit (1999) as well as Valley Broad. Company, 798 F.2d 1289,

1290, and 1293 and 94. If you want to take a look at those,

and if you have any issues regarding providing the press access

to the exhibits, then you need to let me know.

And Mr. Masterson, if you're going to assert that any

of the lines in that one exhibit need to be redacted, you're

going to have to make the justification pretty quickly.

Any comments with respect to that?

MR. MASTERSON: Judge, this is Masterson. We'll take

a look at the cases the Court just cited, and also the exhibits

that you're referencing, and figure out how we're going to --

how we're going to handle that.

MR. YOUNG: Your Honor, this is Stanley Young. We

generally, for plaintiffs, do not have an objection. I will

observe, and will remind Mr. Masterson, we did have a

discussion about Exhibit 2072. And I think Mr. Masterson had

proposed some redactions which we believe to be too extensive,

and we would certainly agree to a redaction of the phone

numbers of the sheriff and chief deputy, which is what was

redacted on a different exhibit.


22/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


There is also another exhibit which was admitted which

is 2900A that does seem to have some personal information of

some other people, potentially, and I suppose I would invite

Mr. Masterson's attention to that exhibit as well.

THE COURT: All right. Well, I'm going to ask all the

parties to confer the rest of today and tomorrow to determine

what, if any, exhibits need to be redacted, or the parties are

going to assert some interest in redaction if they've been

publicly admitted.

And if you have such exhibits, I'm going to ask you to

raise these matters prior to Thursday morning at 10 o'clock

with the Court. I will hold that open to hear from you either

through telephonic conference or otherwise. But we may, if it

otherwise works out, provide the exhibits on Thursday afternoon

or on Friday --


clerk.)

THE COURT: -- for the press who may have interest in

specific exhibits. In any case, I'm going to require that you,

by Thursday morning at 10 o'clock, get back to me and be

prepared to make any arguments with respect to matters that you

think meet the standard to be left under seal or redacted.

Any issues with that?

MR. YOUNG: No, Your Honor, for plaintiffs.

MR. MASTERSON: John Masterson. No issues, Judge.


23/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


THE COURT: All right. Anybody else have any issues

to raise or matters to raise at this point?

MR. STEIN: Yes, thank you. Your Honor, this is Lee

Stein. I just want to make sure I understand that the Court

intends to hear oral argument on the matter of a criminal

referral before making findings on civil contempt and remedies?

THE COURT: Yeah, I haven't -- I guess I haven't made

the final determination on that, Mr. Masterson -- or Mr. Stein.

But it does seem to me to maybe be logical there. If you think

that I ought to take it up after I make findings of fact, I'll

hear what you have to say on that point. But I'll let you say

it maybe when we reconvene, unless you're ready to speak now.

MR. STEIN: Okay, that's fine.

THE COURT: I'm sorry. I couldn't hear you,

Mr. Stein.

MR. STEIN: Yeah. No, I -- I guess it seems to me --

I'm happy to address it any time you want me to.

It seems to me that one of the considerations for the

Court is whether the remedies for civil contempt are sufficient

and appropriate and therefore criminal contempt is not

necessary. And so it seems to me that making a determination

on the criminal contempt before going through the process of

evaluating the civil remedies is premature.

THE COURT: Well, I do agree that -- it does seem to

me that the remedy -- the remedies are relevant, so I'll


24/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


consider that, Mr. Stein, and maybe put -- put forth, or

postpone oral argument until I've implemented remedies.

MR. STEIN: Thank you, Your Honor.

MR. EISENBERG: Your Honor, may I be heard on the

procedures that the Court will follow with respect to criminal

contempt?

THE COURT: Yes.

MR. EISENBERG: I suggest that the Court first enter

findings of fact on the matter of civil contempt so that it

gives those who are specially representing defendants an idea

where the Court is headed with respect to findings of fact and,

of course, conclusions of law. It would tend to hone in our

arguments as to why the Court should not make a referral for

criminal contempt purposes.

THE COURT: All right.

MR. McDONALD: Judge, this is Mel McDonald. I'd just

like to indicate that I join Mr. Stein. I think -- and we

could provide that to you -- early on in April when we

discussed this issue you had indicated that the criminal

contempt issue would only come into play once the remedies had

been addressed, and we can give you something in writing to

refresh your recollection. I think it would --

THE COURT: You know what? I don't -- I don't think

you need to, Mr. McDonald. When Mr. Stein raised the issue, I

agree with him. That I --


25/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:3

15:3

15:3


MR. McDONALD: Yes.

THE COURT: -- do --

MR. McDONALD: Thank you.

THE COURT: -- do recall that remedy -- that one of

the issues about criminal contempt is whether or not there's a

suitable remedy under civil contempt. And I guess it's -- I

have to allow the parties, to the extent they might want to

avoid the possibility of criminal contempt, to take that into

account to the extent they think it's necessary, especially the

specially appearing parties, in whatever remedy is imposed.

That does make sense to me.

MR. MURDY: Your Honor, this is Craig Murdy on behalf

of Brian Sands. Do we have a date scheduled at this point in

time for oral argument at the conclusion of the hearing?

THE COURT: Well, we did have a date scheduled. It's

November 10th. Obviously, that date is no longer valid.

And so what I'm going to have to do, and I will do, is

look -- I have three final pretrial conferences on Friday. I

will, of course, know if I'm going to have some -- I will know

my trial schedule on Friday once I do those.

And so as soon as we can convene on I assume it will

be Tuesday, I'll tell the parties the available dates that I

have in which I can hear oral argument that I intend to hear

prior to making findings of fact.

MR. MURDY: Thank you.


26/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:3

15:3

15:4

15:4

15:4


THE COURT: And we'll try and work out a time that's

convenient for all parties.

I am somewhat inclined towards Mr. Masterson's point

that I'm not going to -- I mean, I'm not going to give you

forever, but this has been a long hearing, and I do want to

give you ample time to make the points that you wish to make,

and as I've indicated, I may have some specific questions for

the parties which I want to let you answer.

MR. WALKER: Your Honor, this is Richard Walker. I

just wanted to alert the Court to the fact that I have been in

discussions with plaintiffs' counsel about a couple of

evidentiary matters on behalf of the County, and I'm hoping

that we're going to be able to resolve that through the

submission of a couple of documentary exhibits, but if we're

unable to get stipulations, we may need to put some witnesses

on, but I would expect them to be very, very brief.

THE COURT: Would they be on the order of, what,

custodian of records, or something like that, Mr. Walker?

MR. WALKER: In one case it would be an employee from

the Office of Management and Budget who was involved in the

creation of the document; and in the other case, it's someone

from the Office of Enterprise Technology who was involved in

trying to provide information sought by Detective Vogel.

THE COURT: All right. I appreciate you alerting me

to that.


27/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:4

15:4

15:4

15:4

15:4


Do you think that it's likely to extend the hearings

beyond the schedule that I've suggested today?

MR. WALKER: I would think it highly unlikely. In

fact, I would think if we do have to put these two witnesses

on, I doubt they will take more than an hour.

THE COURT: All right. Thank you for advising me of

it in advance.

Anybody else have anything that needs to be raised?

MS. WANG: Yes, Your Honor. Cecillia Wang for

plaintiffs.

To go back briefly to the issue of publicizing

exhibits to the press, I should disclose that I have gotten a

couple of individual requests for exhibits from reporters and I

have provided copies of exhibits that were admitted into

evidence without restriction and that were published during the

hearing to reporters, and I apologize to the Court if I did so

without following the necessary procedures to seek leave. I

did not think there was any legal impediment to my providing

those exhibits to the press.

THE COURT: Well, I think in general there is not, and

in fact, if you want to proceed in that way, if the parties

agreed to proceed in that way, that either party can provide

exhibits that have been admitted into evidence to the press, I

have no objection unless any party has an objection to the

provision of an exhibit and they want to raise it with another


28/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:4

15:4

15:4

15:4

15:4


party, and then I can only decide -- then I will only have to

decide those matters in lieu of making available the record to

everybody on request here.

Mr. Masterson, what's your pleasure with respect to

that?

MR. MASTERSON: Well, I guess my pleasure is I'm

concerned about documents that may be subject to redaction that

we discussed a little bit ago, so --

THE COURT: Yeah, I agree that -- but why don't you

discuss -- let me ask: Other than those documents, do you have

any objection if the press seeks directly from plaintiffs, or

from you, exhibits that have been admitted into evidence?

MR. MASTERSON: I really don't.

THE COURT: All right. So why don't we do this? Why

don't we amend what I just said so that if you have

disagreements about redactions, you raise those with me by

10 o'clock on Thursday morning, exhibits that need to be

redacted.

I'll set a hearing. I'll set a hearing date Thursday

at 10 o'clock.

And it can be telephonic, so that I can take up any

matters. And if you don't have any matters, just let us know

and we'll cancel the hearing.

MS. WANG: Thank you, Your Honor. That's fine for

plaintiffs.


29/30

F R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15:4

15:4

15:4


THE COURT: Mr. Masterson?

MR. MASTERSON: Oh, sorry, Judge. That's fine with

me, too.

THE COURT: Mr. Walker?

MR. WALKER: That's fine, Your Honor.

THE COURT: Mr. Murdy?

MR. MURDY: That's fine, Your Honor.

THE COURT: All right. So I may see you at 10 o'clock

on Thursday morning.


clerk.)

THE COURT: If you need to appear telephonically on

Friday, please advise my courtroom deputy. I realize that some

of you from San Francisco may well wish to do so. But that

does not preclude, for example, Mr. Zullo, or Mr. Masterson, or

others, if they want to be here in person, from being here in

person.

All right. Unless there's anything else, I will see

you, perhaps, Thursday, and definitely Friday.

(Proceedings concluded at 3:44 p.m.)


30/30

R I E N D

O F T

H E F O G

B O W . C

M12

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


C E R T I F I C A T E

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

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

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

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 3rd day of November,

2015.

s/Gary Moll

melendres v. arpaio #1522 | nov 3 2015 transcript - status conference

Documents