8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
1/30
1
2
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 OrtegaMelendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
)))
)))
)
)
)))
SEALED PROCEEDINGS
CV 07-2513-PHX-GMS
Phoenix, Arizona
August 7, 2014
10:04 a.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
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 1 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
2/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 2
A P P E A R A N C E S
For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNION
FOUNDATIONImmigrants' Rights Project39 Drumm Street
San Francisco, California 94111(415) 343-0775
Andre Segura, Esq.
AMERICAN CIVIL LIBERTIES UNION
125 Broad Street, 18th FloorNew York, New York 10004(212) 549-2676
Jorge M. Castillo, Esq.MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUNDRegional Counsel
634 S. Spring Street11th Floor
Los Angeles, California 90014
(213) 629-2512, Ext. 121
For the Defendants: Timothy J. Casey, Esq.
James L. Williams, Esq.SCHMITT, SCHNECK, SMYTH,
CASEY & EVEN, P.C.1221 E. Osborn Road
Suite 105
Phoenix, Arizona 85014-5540(602) 277-7000
Thomas P. Liddy, Esq.
Senior Litigation Counsel
MARICOPA COUNTY ATTORNEY'S OFFICECivil Services Division
222 N. Central AvenueSuite 1100
Phoenix, Arizona 85004
(602) 506-8066
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 2 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
3/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:0
10:0
10:0
10:0
10:0
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 3
P R O C E E D I N G S
THE CLERK: This is civil case number 07-2513,
Melendres v. Arpaio, on for telephonic conference.
Counsel, please announce your appearances.
MS. WANG: Good morning, Judge Snow. This is Cecillia
Wang from the ACLU for the plaintiffs. I also have on the
phone with me my co-counsel, Andre Segura, also with the ACLU,
and Jorge Castillo of MALDEF, but I'll be addressing the Court
today.
THE COURT: All right.
MR. WILLIAMS: Good morning, Your Honor. James
Williams on behalf of the defendants. Also with me is Tim
Casey and Tom Liddy.
And we also have client representative Steve Bailey,
who was not here when we first gave the Court our appearances,
with MCSO's Internal Affairs division, and then also Christine
Stutz and Vanessa Losicco from the Maricopa County Attorney's
Office, who are appearing -- or not making appearances.
They're here as client representatives, not as counsel.
MONITOR WARSHAW: Good morning, Judge. Bob Warshaw.
I also have with me Deputy Monitor John Girvin and Deputy
Monitor Raul Martinez.
THE COURT: Good morning. Good morning to you all.
Let me address an initial matter. As in this hearing
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 3 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
4/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:0
10:0
10:0
10:0
10:0
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 4
I may inquire into matters that I'm not going to require
disclosure for, I suggest that we hold this hearing initially
under seal, as it may involve particulars of ongoing police
investigations.
If I hold it under seal, then I want every participant
who is on the line to realize that they are not free to discuss
it, regardless of the fact that they are present, outside of
this hearing, except for among themselves.
I do and would authorize each party to obtain a
transcript of this hearing without further authorization of the
Court, but that doesn't mean that you can discuss the hearing
publicly unless and until I take off the seal.
Does anybody object to us going under seal?
MR. WILLIAMS: Defendants do not object, Your Honor.
MS. WANG: No objection from plaintiffs, Your Honor.
THE COURT: All right. Then I have looked at the -- I
have reviewed the letters that I have been sent by the parties.
I appreciate that.
I take it, Mr. Williams, you're arguing on behalf of
the defendants, or you're going to be speaking on behalf of the
defendants today?
MR. WILLIAMS: That's correct, Your Honor.
THE COURT: I've looked at your letter and the basis
for which you have asserted privilege, on which you've asserted
privilege, and it seems to me, essentially, that E and F
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 4 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
5/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:0
10:0
10:0
10:0
10:0
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 5
provide no basis for privilege, unless you're going to tell me
that you have pending appeals or disciplinary actions against
any particular MCSO employee or officer.
Are there any such ongoing appeals or disciplinary
actions?
MR. WILLIAMS: Your Honor, I think that the challenge
with that is that the disciplinary action begins with the
investigation. There are no ongoing appeals that I'm aware of
with regard to this issue, but we would certainly contend that
the ongoing investigation, that there is a very large one of
those going on to which that would apply.
THE COURT: Well, let me just tell you, Mr. Williams,
have you identified any particular officers that are subject to
disciplinary action as a result of any of the investigations?
MR. WILLIAMS: And Your Honor, if I may, on some of
these questions I may allow Steve Bailey, who's here next to
me, because he can provide a greater level of detail on those,
since we're under seal, so --
THE COURT: Well, I guess I don't have any objection
to Mr. Bailey -- or is it Captain Bailey?
CAPTAIN BAILEY: Yes, Your Honor.
THE COURT: All right. I don't have any objection to
his participation, except for I guess I want to direct the
dance. And so I'm asking you first, Mr. Williams, have there
been any officers that are designated as being subjected to
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 5 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
6/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:0
10:0
10:0
10:0
10:0
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 6
disciplinary action as a result of any of the material sought
by the plaintiff in this action?
MR. WILLIAMS: Your Honor, let me just -- we have sent
out a number of notices to that respect, and we certainly have
targets in that respect, so there are -- and again, I probably
have to left Captain Bailey put a little bit finer point on
that, but I think the answer is that we are -- we are on that
road, Your Honor.
THE COURT: Well, you may be on the road, but again, I
want to be very specific: Have you identified any ongoing
disciplinary actions against any MCSO officer as a result of
the investigations?
CAPTAIN BAILEY: Your Honor, this is Captain Bailey.
THE COURT: You know, Captain Bailey, again, I welcome
your participation, but I do want you to know that to the
extent you provide clarification, I am going to allow Ms. Wang
to seek clarification of what you say, just so you're aware,
okay?
MR. WILLIAMS: Yes, Your Honor. I'm sorry, we had the
phone on mute.
THE COURT: Okay. Go ahead, Captain Bailey.
CAPTAIN BAILEY: Nobody has been noticed as a
principal as a result of the ongoing investigation. However,
there have been several employees observed during what would
have been discipline for Deputy Armendariz.
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 6 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
7/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:0
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 7
As a result of the interviews, I have a clearer idea
of their participation and their knowledge, which certainly
could result in discipline in the future.
THE COURT: Well, but you are not in a position, as I
understand it, Captain Bailey, to determine that with respect
to any particular officer at this point?
CAPTAIN BAILEY: No, Your Honor, not at the point we
are in the investigation now.
THE COURT: All right. In that sense, then --
Well, Ms. Wang, do you have any follow-up?
MS. WANG: No, Your Honor. I think it's -- well, I
would ask Captain Bailey just to confirm that they currently
don't have any ongoing disciplinary action against any
particular MCSO deputy.
With that clarification, I think that the Court has
already understood plaintiffs' position, which is that A.R.S.
38-1101E and F don't apply at all, because there is no pending
proceeding, much less an appeal, against any MCSO deputy. The
fact that MCSO has said that there may be some action taken in
the future certainly doesn't extend the privilege under the
statute to documents that we've been seeking now.
THE COURT: All right. And Mr. Williams, that is my
ruling. Unless and until a specific disciplinary action has
been identified and is being pursued, A.R.S. 38-1101E and F are
not applicable. That does not mean that L -- well, I want to
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 7 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
8/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 8
take a look at L, and I also want to look at A.R.S. 39-121,
which says, "Public records and other matters in the custody of
any officer shall be open to inspection by any person at all
times during office hours." So keep that in mind.
L, it seems to me, "An employer shall not include in
that portion of the personnel file of a law enforcement officer
or probation officer that is available for public inspection
and copying any information about an investigation until the
investigation is complete or the employer has discontinued the
investigation."
Well, it seems to me that to the extent that the
plaintiff has asked for personnel files of law enforcement
officers, that particular section of the statute may remain
applicable. And it also strikes me that we could discuss
confidentiality obligations that pertain to the plaintiffs as a
method of overcoming that, but I do want to ask some
more questions so I can identify on a matter-by-matter basis
and appropriately protect the defendant's interests while
allowing the plaintiffs appropriate access.
Evidence, records, and videos seized from the
Armendariz home seem to me to be material that is in the
custody of any officer. It doesn't seem to be precluded by
A.R.S. 38-1101E or F, and because it does not relate to the
portion of a personnel file of a law enforcement officer, it
doesn't seem to me, Mr. Williams, that you asserted a basis for
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 8 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
9/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 9
privilege. Do you have --
MR. WILLIAMS: Your Honor, I believe the definition of
the investigative file under 38-1101 is much broader than that
and includes anything attached to that investigation, and
that's the problem that we have, Your Honor.
THE COURT: No, no, no, no. Let's go back and focus
on the language of the statute, please, Mr. Williams. We're
looking only at 38-1101L and it talks about a personnel file;
it doesn't talk about an investigative file. Or do I misread
the statute?
MR. WILLIAMS: It does also mention, Your Honor, any
information about an investigation.
THE COURT: That's fine. But we're talking about a
personnel file. And the request I'm talking about right now is
evidence, records, and videos seized from the Armendariz home.
That's not a personnel file. That's the --
MR. WILLIAMS: And Your Honor, I'm sorry. L also
mentions copying any information about an investigation, and
that -- that would be our position is that for the same reason,
that evidence is now information --
THE COURT: Well, I've got L in front of me. You tell
me where it says copying any information about an
investigation.
MR. WILLIAMS: "... probation officer that is
available for public inspection and copying any information
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 9 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
10/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 10
about an investigation until the investigation is complete..."
THE COURT: Yeah, that's from the personnel file,
though. That's information contained in the personnel file.
It doesn't -- it does not, as I read the statute, apply to --
generically to investigations, and so I don't think that you
have satisfied me that you have demonstrated any privilege in
the evidence, records, and videos seized from the Armendariz's
home.
MR. WILLIAMS: Your Honor, as a practical matter, that
information would be in the investigative file; it would not be
in the personnel file.
THE COURT: I understand that. Can you show me where
you've got any privilege that it would apply to that
investigative file?
MR. WILLIAMS: I believe, Your Honor, we're having a
different reading of L. I believe I'm reading L as having
essentially two parts and Your Honor is reading it,
understandably, different to have the second part subsumed into
the first part of the personnel file.
But the way that -- that I read L: An employer shall
not include in that portion of the personnel file of a law
enforcement officer that is available for public inspection and
copying any information about his investigation. I think it's
intended to cover both topics.
THE COURT: I understand your reading and I don't
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 10 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
11/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 11
agree with it. I don't think it's correctly read. Of
course -- I guess my understanding counts, is the one that
counts for immediate purposes.
However, I do believe that it does make sense to have
some confidentiality obligation on plaintiffs. To the extent
that you believe that you can -- or that any information that
they might disclose would damage your investigation, I don't
want to do that, and maybe we can ask an assessment from Chief
Warshaw about where the investigation actually stands. But he
does keep me pretty well posted, and it was my impression that
the investigation in this respect, and I realize there are many
things to investigate, has not moved very far.
And so it is not my intention to just simply require
the plaintiffs to wait until you determine that you're going to
undertake all aspects of the investigation which may be of some
interest to them.
As I understand it from your letter, Ms. Wang,
plaintiffs are interested in discovering the material actually
revealed so that they can use it in the defense of this Court's
order to the extent that I have placed certain things in my
injunction and you believe that the investigation reveals
things that are relevant to the applicability of such an order.
Do you desire it for any other purpose at this point?
MS. WANG: No, Your Honor. Of course, plaintiffs are
seeking all these categories of documents in order to represent
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 11 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
12/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:1
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 12
the plaintiff class in making sure that the defendants are
complying with this Court's previous orders.
And I would also point out that defendants are
currently contesting provisions of this Court's orders, and
particularly the trial rulings and the Court's supplemental
injunction from October of last year on appeal in the Ninth
Circuit. And the little that we have seen so far from the
documents that defendants have produced to us demonstrates that
there is certainly evidence to support this Court's prior
orders, and that would refute the position that the defendants
have taken on appeal, for example.
So that's our position, that the documents are
directly relevant to the subject matter of this litigation and
to protecting the interests of the plaintiff class and
protecting the plaintiff class from further violations of their
constitutional rights.
One other note I just wanted to make, Your Honor, and
I understand you've ruled already, on the privilege asserted by
the defendants based on 38-1101, with regard to subsection L,
plaintiffs are not relying on any rights under Arizona's public
records law. Primarily, we're relying on the ongoing
litigation and the Court's prior orders and injunctions.
And so I think that I agree with the Court's reading
of subsection L as not conferring any privilege in any event,
but I'd also point out that we don't stand in the position of
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 12 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
13/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:1
10:1
10:1
10:1
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 13
the public trying to gain access to any of these records.
THE COURT: Let me float this for proposal.
It would be my proposal that if, for present purposes,
Ms. Wang wants it for purposes of defending the order and
appeal and purposes of this action, that the plaintiffs be
restricted from any other use, but they be entitled to complete
access to the records and videos seized from the Armendariz
home. And before they can use it for any other purpose, they
have to seek authorization from the MCSO or from this Court.
Any problem with that order?
MS. WANG: No, Your Honor, not from plaintiffs.
MR. WILLIAMS: Your Honor, from defendants'
standpoint, we do have an issue with them using it as a basis
for the appeal, as the record for the appeal would seem to be
closed.
THE COURT: Well, let me ask you, Mr. Williams, it
seems to me that plaintiffs have suggested, and it seems to me,
by my recollection, which isn't always fault free, that among
other things, plaintiffs requested prior to trial copies of any
videos or recordings made of any traffic stops. And it
certainly seems to me that the Armendariz investigation has
uncovered a great number of recordings, both video and audio,
that existed that were not disclosed. Am I correct --
MR. WILLIAMS: And, Your Honor that's -- I apologize.
THE COURT: Am I correct about that?
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 13 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
14/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 14
MR. WILLIAMS: Well, Your Honor, that's an important
point of clarity. Those HSU videos are not part of what is
being disputed here. Those have been disclosed to Ms. Wang
under the protective order that -- that Your Honor issued.
THE COURT: I'm not talking about HSU videos; I'm
talking about Armendariz videos.
Have you matched them up to know that they weren't
videos made during the pendency of this lawsuit?
MR. WILLIAMS: I believe they are after, Your Honor,
but I would be uncomfortable making that representation
affirmatively to the Court, I'm not certain.
THE COURT: Well, have you even looked at all the
videos?
MR. WILLIAMS: Have I personally, or --
THE COURT: No, no, I don't mean you personally; I
meant the MCSO. Thank you for the clarification.
MR. WILLIAMS: They have completed, as I understand,
the initial review of all the videos to determine which videos
are potentially problematic, and then those videos that have
been identified as potentially problematic are being reviewed
by a group of lieutenants.
THE COURT: Have they dated the videos? Have they
matched the videos up to victims, and have they done the
Hispanic surname search that we had discussed earlier?
CAPTAIN BAILEY: No, Your Honor. We are still merging
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 14 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
15/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 15
all the spreadsheets. We need all the data that we could --
THE COURT: Is that Captain Bailey? Is this
Captain Bailey?
CAPTAIN BAILEY: Yes, Your Honor, I'm sorry.
THE COURT: That's all right. If you'd just identify
yourself prior to speaking, because since you're not here, the
court reporter can't know unless you identify yourself.
CAPTAIN BAILEY: Yes, sir. Currently, we are merging
a number of spreadsheets together that is a collection of data
from every aspect that we could identify. There was 394 videos
that we deemed potentially problematic, and there is 10 to 12
lieutenants currently looking at those 394 videos so we can
identify serious issues if they in fact exist.
THE COURT: Well, let me just tell you how I
understand things, and I appreciate and I'm not suggesting that
you're operating in anything other than good faith,
Captain Bailey, but if you identified -- when you say 394
videos, do you mean 394 actual stops that have been videotaped,
or do you mean 394 of the 500 some-odd videos that have on them
one or more stops that are problematic?
CAPTAIN BAILEY: They are 394 clips that show both
traffic stops and potentially enforcement actions, depending on
how the camera was operated at the time. But those 394 come
from the reviews of hundreds of other videos that we have
separated out for further investigation by the Professional
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 15 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
16/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 16
Standards Bureau.
THE COURT: All right. And again, without calling
into question your good faith, I do believe that Ms. Wang might
not necessarily share the assessment of the Maricopa County
Sheriff's about the number of those videos that demonstrate
problematic behavior. I'm not saying that she wouldn't; she
may well. But I believe that she's entitled to look if she
wants to spend the time reviewing them.
Can you tell me why she wouldn't be?
CAPTAIN BAILEY: Your Honor, are you asking me? This
is Captain Bailey.
THE COURT: No, I'm asking Mr. Williams. But thank
you for the clarification, Captain Bailey. I don't think it
was a fair question to be asking you.
MR. WILLIAMS: Your Honor, I think we've stated our
basis and you disagreed with it as to why she shouldn't be
allowed to look at them. I think our concern is an
interference with the ongoing investigation --
THE COURT: That's correct, and I understand that.
And let me ask you, Mr. Williams, my proposal is, again, that
Ms. Wang can use whatever she finds for purposes only of this
lawsuit and/or the arguments on appeal, and that if she
discloses any information, publicly or otherwise, she'll be in
violation of my order.
MR. WILLIAMS: And one concern, Your Honor, with
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 16 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
17/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 17
respect to the filing on the --
THE COURT: I guess before I let you go, and I will
let you speak, Mr. Williams, but do you have any concern about
an order entered to that effect in terms of doing what I can do
to preserve the integrity of your investigation?
MR. WILLIAMS: I do have concerns, Your Honor, if
she's able to file any of those records as a matter of public
record either with this Court or with the Ninth Circuit.
THE COURT: I understand that concern.
Ms. Wang, before you file any other records as an
exhibit, you'll need to seek authorization of the Court.
MS. WANG: Understood, Your Honor.
MR. CASEY: And will that be -- Your Honor, this is
Tim Casey. Will that be included in your order, that
particular provision? Because that is a significant concern is
it's one thing for plaintiff to be able to look at the
documents or look at the videos and make their own assessment;
it's another thing for it to go on the public record, because
we need to preserve the integrity of what investigations are
ongoing. And we also want to make sure if there are
quote-unquote victims, that they're not in the public record
before we can address them and meet with them.
THE COURT: Well, how about I revise it this way,
Mr. Casey? It may well be -- I don't want to have to decide
tons of things that you both agree on can go in the public
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 17 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
18/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 18
record. So I will be glad to enter in my order that if
Ms. Wang wants to put any of the exhibit -- actual exhibits or
evidence in the -- copies of them in the public record, that to
the extent she cannot obtain your approval, she get an order of
the Court authorizing it first.
MR. CASEY: That is agreeable, Your Honor.
THE COURT: All right. Request number 4, records of
interviews of MCSO personnel relating to the Armendariz
investigation. Well, I take it that the Armendariz
investigation itself is ongoing.
MR. WILLIAMS: That is correct, Your Honor.
THE COURT: Is there any investigations that have been
opened, and I think you've already answered this, with respect
to any other officers that have been identified, other than
Deputy Armendariz?
MR. WILLIAMS: Not at this time, Your Honor, although,
again, we express our disagreement with how the line's being
drawn, but we understand your ruling so far.
THE COURT: All right. My ruling will be the same
with respect to records of interviews with the MCSO personnel
relating to the Armendariz investigation. That is, Ms. Wang
may review those records, but she may not attach them or
otherwise use them, absent the authorization of MCSO, in a
public filing without order of the Court.
Now, documents relating to one division level
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 18 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
19/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:2
10:2
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 19
investigation of Deputy Armendariz, IA2014-0142. Is this
investigation complete?
MR. WILLIAMS: Your Honor, this is an interesting one.
That particular investigation is complete. The problem with
that investigation is that the nature of the investigation, and
I can only disclose this because we're under seal, raises
concerns about how that investigation was conducted with
respect to the deputies involved in that.
And so actually that is -- and that issue was raised
with the monitor earlier this week because it is of series
concern to the IA division as to how that investigation was
completed, which raises concerns about, frankly, whether there
was any involvement between those who conducted that
investigation and Deputy Armendariz' conduct.
We had a very difficult time getting that division
investigation file back from the division. When we got it back
we were concerned, to say the least, about how it was
conducted. And so that is the nature of that particular
investigation.
THE COURT: All right. And let me just say, I
appreciate the presence of the monitor staff on this call, and
if they're -- if they have concerns about any of my rulings, I
just invite them to speak up and identify themselves, or if
they have information that they think would be helpful to the
Court in making its rulings, I similarly invite them to speak
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 19 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
20/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:2
10:2
10:2
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 20
up.
But it seems to me, Mr. Williams, and I appreciate
your candor and the willingness of the Sheriff's Office to
investigate the adequacy of their own Internal Affairs
investigations, but it seems to me that that might go to the
very heart of matters in which Ms. Wang would be interested.
So to the extent that she wants the investigation
itself, I don't think there's any privilege that would withhold
it. It's not an ongoing investigation. So the investigation
itself, there is no privilege that attaches. There may be --
to the extent there is a new investigation about the adequacy
of that investigation, there may be other issues, but I don't
see any issue with her receiving the actual concluded
investigation of Deputy Armendariz, and so I'm going to let her
have that. And it seems that is a public document because
there is no longer any ongoing investigation, and so I'm not
going to make that subject to the protective order.
Any concerns about that?
MR. WILLIAMS: Yes, Your Honor. We have the same
concerns that we've expressed before, but we understand your
Court's -- the Court's decision on it.
THE COURT: All right. Thank you.
MR. WILLIAMS: We think it runs substantial risk of
interfering with the very investigation that we're trying to
conduct, but we will, of course, abide by the Court's order.
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 20 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
21/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 21
THE COURT: I appreciate it, Mr. Williams.
Does the monitor have -- does the monitor share any of
those concerns?
MONITOR WARSHAW: No, Your Honor. I concur with the
Court's views on that issue.
THE COURT: All right. Personnel records and
performance evaluations of any other MCSO personnel under
investigation as a result of the Armendariz matter and records
of complaints against such MCSO personnel.
Well, it seems to me that to the extent no such
persons have presently been identified, there is no response to
that request. Is that a fair summation, or have I misread your
request, Ms. Wang?
MS. WANG: No, you have not misread it, Your Honor.
And I would also note that this subject was addressed
by one of plaintiffs' requests for production during discovery
in the case as well, we did ask for records of citizen
complaints, so I think that would cover some of these
materials.
THE COURT: All right. Well, I'm going to say that to
the extent any materials were requested by the plaintiff in the
underlying litigation before trial that were not disclosed but
you have subsequently discovered material that is responsive,
it just has to be disclosed, totally -- totally regardless of
any privilege asserted now. So --
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 21 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
22/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 22
MS. WANG: Thank you, Your Honor.
THE COURT: -- what's left of request number 8, other
than records of complaints against MCSO personnel?
The problem we have here, Ms. Wang, as I've said, is
there are no MCSO personnel under investigation as yet as a
result of the Armendariz matter, or have I misstated that,
Mr. Williams?
MR. WILLIAMS: It's correct within the way the Court
has drawn the line, that's correct.
Again, we will contend that they were under
investigation and that the statute covers that status as well.
THE COURT: All right. Now, at such point that any
may become subject to such an investigation, I believe that you
may want to disclose that to Ms. Wang.
But Ms. Wang, when he does do that, it does seem to me
that 38-1101L then kicks in and you're entitled to their
personnel file, but you're not entitled to their personnel file
including any materials that pertain to the investigation.
Is that clear?
MS. WANG: I think so, Your Honor. I take it that if
circumstances change at any point and a deputy is actually the
subject of an administrative disciplinary proceeding, we'll
expect defendants to inform us and inform the Court and the
monitor, and then we could take the necessary steps to, you
know, make sure that any privilege that then does get triggered
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 22 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
23/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 23
will apply to documents.
THE COURT: All right.
MS. WANG: But that's understood.
THE COURT: Any concern about that request and that
ruling on that request?
MR. WILLIAMS: Other than our previous objections,
Your Honor, no.
THE COURT: Well, you've won that one, Mr. Williams.
MR. WILLIAMS: I mean in the interim is my problem,
Your Honor.
THE COURT: All right. Fair enough.
MCSO Internal Affairs spreadsheet summarizing
video recordings seized from Deputy Armendariz's home.
MR. WILLIAMS: Your Honor, if I may, those constitute
the very heart of the MCSO's investigation into this matter.
And more importantly, perhaps, they are works in process, and
they change as evidence is obtained, is analyzed. They include
investigatory conclusions that would be completely unfair not
only for the MCSO to be held to in the meantime, but even
worse, if they were somehow disseminated. But in any event,
that is at the very heart of what we -- what we are concerned
about with regard to the investigatory file.
I should also say those, along with numerous other
documents, are provided to the monitor on a regular basis. The
monitor is intimately involved in the investigation and sets
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 23 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
24/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 24
tasks and time lines and has almost daily contact with IA in
that respect. So it's not as if that is being conducted in the
dark.
In addition, potential witnesses and victims are
identified in those spreadsheets who have not yet been
interviewed or contacted. That is certainly at the very heart
of our concern.
THE COURT: Mr. Warshaw, do you have any comment to
make with respect to those spreadsheets?
MONITOR WARSHAW: Yes, Your Honor. Mr. Williams is
correct, we do get those on a regularized basis, and those are
the subject of a consultative process. But based on the
restrictions that the Court has placed on the plaintiffs
relevant to the other matters that have already been discussed,
I personally do not see how it would be an investigative
compromise if that material was shown to the plaintiffs with
the same provisions that the Court has determined relevant to
the other matters.
THE COURT: I believe that is going to be my ruling.
I do appreciate the good faith of the MCSO. I don't want to
impair their good faith investigation. But certainly to the
extent they've identified 394 stops that may be problematic, I
think Ms. Wang's entitled to look at why and what and the
specification of why they are problematic, and certainly to
explore whether or not the stops involved members of the
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 24 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
25/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 25
plaintiff class.
And so subject to the same restrictions, I'm going to
make the same order. And it seems to me that that would apply
to the last area that wasn't included in Ms. Wang's letter but
subsequently raised by e-mail, which is the monitor's reports.
Any other matters to be raised in this conference
call?
MS. WANG: Your Honor, just one, which I subsequently
e-mailed to the Court, and I apologize for not including it in
my letter. There's some lack of clarity on my part about
whether defendants have made a full disclosure under requests 5
and 6 from my May 21st letter, and these are -- both categories
relate to documents that MCSO has provided to the monitor.
MCSO has produced a number of the documents that are
responsive, and Mr. Williams and I were meeting and conferring
at the last minute yesterday just to get some clarity about
whether anything was still withheld.
To the extent that there are documents that are
withheld in that last category we just addressed about the
weekly -- or the regular spreadsheet that's given to the
monitor as one of those categories, I just want to clarify that
we are seeking those other documents as well.
THE COURT: Mr. Williams.
MR. WILLIAMS: Your Honor, I believe we have disclosed
in the privilege log or in our correspondence any of those
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 25 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
26/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:3
10:3
10:3
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 26
documents that weren't produced, and I think all of them fall
in the category of what we've been discussing today. So I just
want to clarify that if you -- that by ordering the production
of all those, it is pursuant to the terms of your order today,
if they fall in that category with respect to an investigation.
THE COURT: I'm not sure that I've understood this
interchange exactly, but are you satisfied, Ms. Wang?
MS. WANG: I think so. Maybe we should just clarify
with Mr. Williams that documents that MCSO is producing to the
monitor will be produced to plaintiffs with the limitation that
the Court has imposed on the other categories.
THE COURT: Yes. Now, let me ask, is there any reason
why my order on this matter should be kept from the public?
I'm not sure that the order itself would disclose any
privileged material, and it seems to me that we need to -- as
I've said before, and I think all parties are in agreement, we
need to be as open as we can be without interfering with
legitimate police operations.
Is there any reason why the order cannot be publicly
filed?
MR. WILLIAMS: Your Honor, from defendants I guess it
depends on the level of detail that the order gets into, but
presuming the order does not get into the details of any of
what was discussed today with respect to the status of the
investigation, the nature of the spreadsheets, the process,
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 26 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
27/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:3
10:3
10:4
10:4
10:4
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 27
et cetera, to the extent it simply grants plaintiffs access and
restates the restriction, I think Your Honor is correct. I
would just be nervous without any recital leading up to that.
THE COURT: Ms. Wang.
MS. WANG: Plaintiffs' view is that Your Honor's order
should be public, and we agree that, obviously, anything that's
sensitive or confidential should not be in that order.
THE COURT: All right. Thanks to all parties.
Is there anything else that needs to be raised?
MS. WANG: Your Honor, just a clarification.
MCSO has identified these 394 video files, but I take
it that the Court is ordering the larger scope of documents
that were seized from Armendariz's home to be disclosed to
plaintiffs, is that right?
THE COURT: That's correct.
MS. WANG: Okay.
MR. WILLIAMS: Your Honor, the only other issue with
respect to the lieutenant review of the videos that I
mentioned, which obviously is part of the investigative
spreadsheet, I wonder if the Court would allow us to complete
that lieutenant review, which would then be put into the
investigative spreadsheet before disclosing the spreadsheet, so
that at least the final version of the MCSO's review of those
videos is there, rather than the intermediate production of
that review.
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 27 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
28/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:4
10:4
10:4
10:4
10:4
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 28
THE COURT: How long do you anticipate that taking?
MR. WILLIAMS: Two weeks, Your Honor.
THE COURT: Mr. Warshaw?
MONITOR WARSHAW: From our perspective, I think that's
acceptable, Judge.
MS. WANG: Your Honor, for plaintiffs -- sorry.
THE COURT: I am sorry. I just couldn't hear what you
said, Bob. Can you repeat that, please?
And then, Ms. Wang, I'll hear from you.
MONITOR WARSHAW: Right. If I understand
Mr. Williams, is he -- is Mr. Williams, may I ask, are you
saying it will take you two weeks, or --
MR. WILLIAMS: Yes, we think the review can be
complete within two weeks.
THE COURT: Ms. Wang.
MS. WANG: Your Honor, my understanding is that MCSO
has been providing a version of this spreadsheet, which, as
Mr. Williams described it, is a work in progress, to the
monitor team on a regular basis. Our request is that we get
copies of all such spreadsheets as they've been produced to the
monitor, and that includes, you know, what's happened so far.
So our request is to get copies of all of those, and
including future versions, as Mr. Williams is describing.
THE COURT: Yeah. I think that's a fair --
MONITOR WARSHAW: Your Honor -- I'm sorry.
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 28 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
29/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10:4
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 29
THE COURT: I think that's a fair request. It's the
import, I think, already of my order. But to the extent that
Mr. Williams wants to designate one of those as final so that
you can have the final assessment of the MCSO, I think that
works, too.
MS. WANG: That's right, for us, too.
THE COURT: All right. Thank you all.
MONITOR WARSHAW: Okay. Thank you, Judge.
(Proceedings concluded at 10:41 a.m.)
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 29 of 30
8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB
30/30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 30
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 11th day of August,
2014.
s/Gary Moll
Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 30 of 30