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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
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No. CV 07-2513-PHX-GMS
Phoenix, Arizona
September 18, 2015
10:35 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE G. MURRAY SNOW
(Status 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
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status 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. - Telephonically
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. - Telephonically
333 Twin Dolphin Drive, Suite 700Redwood Shores, California 94065
University of California Irvine School of Law
Immigrants' Rights ClinicBy: Anne Lai, Esq.
401 E. Peltrason Drive, Suite 3500Irvine, California 92697
Mexican American Legal Defense and Educational FundBy: Jorge M. Castillo, Esq. - Telephonically
634 S. Spring Street, 11th FloorLos Angeles, California 90014
For the Defendant Maricopa County:Walker & Peskind, PLLC
By: Richard K. Walker, Esq.By: Charles W. Jirauch, Esq. - Telephonically
SGA Corporate Center
16100 N. 7th Street, Suite 140Phoenix, Arizona 85254
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 3
A P P E A R A N C E S
For the Defendant Joseph M. Arpaio and Maricopa CountySheriff's Office:
Iafrate & AssociatesBy: Michele M. Iafrate, Esq.649 N. 2nd Avenue
Phoenix, Arizona 85003
Jones, Skelton & Hochuli, PLC
By: A. Melvin McDonald, Jr., Esq. - Telephonically
By: John T. Masterson, Esq.
By: Justin M. Ackerman, Esq.By: Joseph T. Popolizio, Esq. - Telephonically2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012
For the Movants Christine Stutz and Thomas P. Liddy:
Broening, Oberg, Woods & Wilson, PCBy: Terrence P. Woods, Esq. - Telephonically
P.O. Box 20527Phoenix, Arizona 85036
For the Movants Maricopa County Attorney's Office and MaricopaCounty Attorney William Montgomery:
Ridenour Hienton, PLLC
By: April M. Hamilton, Esq. - Telephonically
By: Ernest Calderon, Esq.Chase Tower
201 N. Central Avenue, Suite 3300Phoenix, Arizona 85004
For Deputy Chief Jack MacIntyre:Dickinson Wright, PLLC
By: Mitesh V. Patel, Esq.1850 North Central Avenue, Suite 1400
Phoenix, Arizona 85004
For Lieutenant Joseph Sousa:
David Eisenberg, PLCBy: David Eisenberg, Esq.
2702 N. 3rd Street, Suite 4003
Phoenix, Arizona 85004
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 4
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: Paul Killebrew, Esq.By: Puneet Cheema, Esq.950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
U.S. Department of Justice - Civil Rights Division
By: Cynthia Coe, Esq. - Telephonically
601 D. Street NW, #5011
Washington, D.C. 20004
For Chief Deputy Gerard Sheridan:
Mitchell Stein Carey, PCBy: Lee D. Stein, Esq. - Telephonically1 Renaissance Square
2 North Central Avenue, Suite 1900Phoenix, Arizona 85004
For Executive Chief Brian Sands:
Lewis, Brisbois, Bisgaard & Smith, LLP
By: Greg S. Como, Esq. - Telephonically2929 N. Central Avenue, Suite 1700Phoenix, Arizona 85012
For Timothy J. Casey:Adams & Clark, PC
By: Karen Clark, Esq.520 E. Portland Street
Phoenix, Arizona 85004
Also present:
Commander John Girvin, Deputy Monitor- TelephonicallyChief Raul Martinez, Deputy Monitor - Telephonically
Chief Deputy Gerard Sheridan
Lieutenant Joseph Sousa
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 5
P R O C E E D I N G S
THE COURT: Please be seated.
THE CLERK: This is civil case number 07-2513,
Melendres, et al., v. Arpaio, et al., on for status conference.
Counsel, please announce.
MS. WANG: Good morning, Your Honor. Cecillia Wang of
the ACLU for plaintiffs.
THE COURT: Good morning.
MR. YOUNG: Good morning, Your Honor. Stanley Young,
Covington & Burling, for plaintiffs.
MR. POCHODA: Good morning. Dan Pochoda from the ACLU
of Arizona for plaintiffs.
MS. LAI: Your Honor, Anne Lai for plaintiffs.
MS. CHEEMA: Good morning, Your Honor. Puneet Cheema
for the United States.
MR. KILLEBREW: Good morning, Your Honor. Paul
Killebrew for the United States.
MS. IAFRATE: Good morning, Your Honor. Michele
Iafrate on behalf of Sheriff Arpaio and Jerry Sheridan and the
unnamed contemnors.
MR. MASTERSON: Good morning, Judge. John Masterson
and Justin Ackerman for Sheriff Arpaio and MCSO.
MR. WALKER: Good morning -- excuse me. Good morning,
Your Honor. Richard Walker on behalf of Maricopa County,
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 6
subject to those issues pending before the Court.
THE COURT: Well, I'm going to make it clear again,
Mr. Walker, you can reserve whatever rights you want but you're
here representing Maricopa County.
MR. WALKER: Yes, that's true, Your Honor.
THE COURT: Maricopa County, all of Maricopa County,
but nothing but Maricopa County, correct?
MR. WALKER: I'm representing Maricopa County.
THE COURT: Thank you.
MR. EISENBERG: Good morning, Your Honor. David
Eisenberg specially appearing on behalf of Lieutenant Sousa,
who is present in the courtroom.
MR. PATEL: Good morning, Your Honor. Mitesh Patel
with Dickinson Wright, specially appearing for Deputy Chief
MacIntyre.
MR. CALDERON: Good morning, Your Honor. Ernest
Calderon on behalf of nonparty and Maricopa County Attorney
Bill Montgomery and his office.
MS. CLARK: Good morning, Judge. Karen Clark on
behalf of Tim Casey.
THE COURT: Good morning.
Who do we have on the phone?
MR. SEGURA: Good morning, Your Honor. This is Andre
Segura of the ACLU for the plaintiffs. I have several others
with me in a deposition room.
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 7
MR. JIRAUCH: Charles (voice cutting out) Walker &
Peskind on behalf of Maricopa County.
MR. WOODS: Terry Woods on behalf (voice cutting out).
MR. POPOLIZIO: (Voice cutting out) Popolizio on
behalf of the sheriff.
MR. COMO: Greg Como on behalf of Chief Sands.
CHIEF MARTINEZ: Good morning, Your Honor.
Chief Martinez and Commander Girvin, Deputy Monitors.
MR. STEIN: Lee Stein on behalf -- specially appearing
on behalf of Chief Sheridan.
MS. COE: Cynthia Coe on behalf of DOJ.
MS. HAMILTON: April Hamilton on behalf of Maricopa
County Attorney and Maricopa County Attorney's Office.
MR. McDONALD: Mel McDonald making a special
appearance on behalf of Joe Arpaio, the sheriff.
MR. CASTILLO: Jorge Castillo for MALDEF on behalf of
plaintiff.
MS. MORIN: Michelle Morin from Covington on behalf of
plaintiff.
THE COURT: We missed everyone who announced between
Mr. Segura and Mr. Woods because we were trying to adjust the
volume upward, so would you restate if you announced your
appearance between Mr. Segura and Mr. Woods.
MR. JIRAUCH: I believe, Your Honor, that I'm the only
one. Charles Jirauch of Walter & Peskind on behalf of Maricopa
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 8
County.
THE COURT: All right. Thank you.
We have a number of issues to take up today. Because
the parties and I had some informal conferences at the Casey
deposition, which I attended all day, I think that we can
expedite matters based on those understandings. But if anybody
has any concerns about them, it's one of the reasons I raised
them there.
It seems to me, though, that before we get down to
scheduling, we need to figure out what depositions, if any, are
going to be taken. Plaintiffs' motion to compel testimony re
July 17, 2015 meeting and MCSO's non-disclosure of the 1500 IDs
has been fully briefed, is at issue.
I've read the motion, the response, and the reply.
I'm not going to encourage a ton of oral argument, but I'll
allow it if somebody wants to be heard.
MS. WANG: Your Honor, I can address very briefly the
key points. Your Honor, I think the issues are clear.
Defendants very clearly waived any privilege that may have
attached to the July 17, 2015 meeting on the subject of the
1500 IDs, and more broadly on the 1500 IDs altogether.
As we cite in our very abbreviated reply brief, the
testimony of Chief Deputy Sheridan very expressly relies on
advice of counsel, and therefore, we believe there has been a
subject-matter waiver.
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 9
Defendants essentially respond only by saying that
individual employees of MCSO cannot waive the privilege, but
that is not the situation here. Each of those witnesses was --
the depositions of each of those witnesses was defended by
defendants' counsel, by the sheriff's counsel, there was no
instruction not to answer, and the testimony makes it very
clear that we have a waiver here on that subject matter.
THE COURT: Does the testimony in chief -- or in
Captain Bailey's testimony offer an explanation as to why he
didn't disclose the existence of the identifications when the
monitor asked?
MS. WANG: I believe that the testimony showed that
there was -- there was advice of counsel. I would acknowledge
that it is not as clear as Chief Deputy Sheridan's testimony,
but the testimony of Chief Deputy Sheridan clearly pertained to
his conclusion about whether Captain Bailey was being truthful
with the monitor or not during the July 20th meeting. And I do
think that Captain Bailey testified enough to the subject
matter of that July 17th meeting that there -- he also has
established the waiver.
To be clear, both Lieutenant Seagraves and
Captain Bailey were asked and did answer that a direction was
given during the July 17th, 2015 meeting not to disclose the
existence of the 1500 IDs to the monitor during the subsequent
monitor site visit, and we went through each of the persons
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present at the July 17th meeting. They all testified that none
of the other people in the room other than defendants' counsel
gave that direction.
THE COURT: Does that matter? If the direction was
indicated and if the direction came from counsel, does it
matter that you went through and eliminated everybody else?
MS. WANG: Well, Your Honor, we think that --
THE COURT: Regardless of where the direction came
from, if there's going to be testimony about the direction, are
you allowed to follow up and ask who the direction came from?
MS. WANG: I believe we are, Your Honor. I believe
that constitutes a waiver of any privilege that would otherwise
have attached.
THE COURT: All right. Thank you.
MS. WANG: Thank you.
THE COURT: Mr. Masterson. Or I don't know, who's
arguing? Is it you, Mr. Ackerman?
MR. ACKERMAN: Yes.
THE COURT: All right.
MR. ACKERMAN: I believe that pursuant to --
THE COURT: Let me just say that I agree, for what
it's worth, that Seagraves has no individual privilege here;
Bailey has no individual privilege here. The question is
whether the defendants waive the privilege.
Bailey is the captain over the PSB, right?
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MR. ACKERMAN: Correct.
THE COURT: He's discussing directions that he
received at the PSB, and there was counsel at that deposition,
was there not?
MR. ACKERMAN: Yes.
THE COURT: And the counsel at the deposition allowed
him to indicate what direction he received pertaining to the
1500 identifications, did they not?
MR. ACKERMAN: Yes, Your Honor.
THE COURT: All right. Why isn't that a waiver? Why
isn't it a subject-matter waiver by the defendants?
MR. ACKERMAN: Even assuming it is a subject-matter
waiver, it's limited because it was not intentional. He had
been instructed repeatedly not to waive by counsel during his
deposition.
THE COURT: Well, it seems to me like you are -- I
mean, I'm not trying to impugn bad intentions, but regardless,
there have been numerous discussions of this. It seems to me
Seagraves, Bailey, Sheridan, in deposition there was, arguably,
waiver in what was told the monitor in his interviews before.
At least that's been represented to me; I haven't read those.
Regardless of what your intent is, isn't that trying
to use the privilege as a sword and a shield?
MR. ACKERMAN: If the privilege has been repeatedly
asserted, I don't see how it's being used as a sword.
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THE COURT: Because you've allowed -- there's never
been any attempt to clawback or talk about inadvertent
disclosure; and clearly, it seems to me at least there is an
implication of advise of counsel. Maybe there's not all the
way there with Bailey.
I have not had an opportunity to read the excerpts
from Chief Deputy Sheridan yet but I will read them if it's
necessary.
MR. ACKERMAN: Neither have I, for the record, by the
way.
THE COURT: What's that?
MR. ACKERMAN: I said I have not had the opportunity
to read them just yet, either.
THE COURT: Well, I'm not even sure it's necessary,
because if you're going to allow all that discussion of what
the direction was, it seems to me like the defendants, not the
individual -- not the individuals, but the defendants have
waived the privilege.
Why haven't they? Because of the use of it as a sword
and shield. I mean, you're clearly trying -- isn't
Captain Bailey clearly trying to say why he didn't disclose
these identifications? And didn't he clearly say why he didn't
disclose these identifications, which was he was instructed not
to disclose them?
MR. ACKERMAN: That is correct, but at the same time,
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 13
it is the attorney-client privilege that protects that.
THE COURT: Is it the attorney-client privilege? Why
haven't you completely waived the attorney-client privilege if
that advice was -- if you completely disclose what the
direction was? And then you say: We don't have to say who
told you?
MR. ACKERMAN: It's a point well taken, Your Honor.
THE COURT: Okay.
MR. MASTERSON: Your Honor, I don't think
Captain Bailey testified that he -- I think the testimony got
as far as: You were asked whether there were additional
internal investigations and you answered no. Why did you do
that? And then the attorney-client privilege was invoked.
THE COURT: Well, I thought that there was clearly an
instruc- -- Bailey testified that he was instructed not to
disclose or discuss the identification.
MR. MASTERSON: I don't think the testimony went that
far, Judge.
THE COURT: Let's look and find it.
Do you have it handy, Ms. Wang?
MS. WANG: Your Honor, I'm looking for that right now.
THE COURT: I mean, again, I haven't had the chance to
look at all the excerpts I just got from you this morning.
Did you provide me with it?
MS. WANG: Your Honor, I believe we did. It's in our
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initial -- I think it's in our opening brief.
And I should clarify something that I said. I believe
that Captain Bailey's testimony as to why he answered the
Monitor Team's question the way he did on July 20th, I believe
he did say that that was based on advice of counsel.
My acknowledgment about it not being as express a
waiver of the privilege in the July 17th meeting was about his
testimony as to the July 17th meeting, but I do need to find
that, Your Honor.
THE COURT: According to the citation you've given me
in your motion, it is the Bailey deposition at page 199, lines
10 through 16:
And was this direction specific? Did you tell the
monitor specifically that a direction was given during the July
17, 2015 meeting not to discuss the Knapp IDs?
Answer: That's -- yes.
And were all of your statements to the monitor
accurate?
Answer: Yes.
Sure looks like that's what he said to me,
Mr. Masterson.
MR. MASTERSON: You're right, Judge.
THE COURT: Okay. There has been a subject-matter
waiver, I'm ruling, and I'm going to allow depositions of -- if
we need to discuss who's going to be deposed, we can do that,
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but I believe there has been and I am ruling that there has
been a subject-matter waiver on the topic of the 1500 IDs,
whether or not disclosure or non-disclosure was authorized, and
what depositions -- let's see. So that will be communication
that occurred between MCSO personnel and counsel on Friday 17
2015 regarding approximately 1459 identification documents that
had been turned in by Sergeant Jon Knapp, and any other
communications that MCSO had with counsel regarding the
disclosure or non-disclosure of the documents found by Knapp up
until the time that the Court noticed a hearing on that issue,
which I think was the night before the 24th. It might have
been -- I think it was the night before the 24th.
Actually, the Court didn't notice the order on the
hearing. I think that chief -- I had Chief Warshaw send out an
e-mail notice saying, If this can't be resolved, I'm going to
the Court. So it will be up until that notice was sent out.
It seems to me that after that time, any discussion
would have been protected in the scope of the likely upcoming
hearing. So that is the window of the subject-matter
disclosure.
Any questions about that?
MS. WANG: No, Your Honor. I believe that means, as
far as we know so far, that we will need to reopen the
depositions of Lieutenant Seagraves, Sergeant Fax, Chief Deputy
Sheridan, and Captain Bailey. Depending on what we discover
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from that, we may need to depose additional individuals, but
that is what we currently plan to do on Tuesday.
THE COURT: All right. Just to save Mr. Masterson the
problem of raising this again, we're only going to be
discussing matters pertaining to my ruling on the waiver. And,
I mean, if you're going to tell me that they relate to past
testimony, as long as you can demonstrate a clear relation,
I'll allow it. But we're not tramping back over all the ground
we've tramped over before; we're just talking about the matters
that I've just ruled on, correct?
MS. WANG: That is understood, Your Honor.
THE COURT: All right. Anything else on this issue
before we go on? Hearing nothing, I am going to go on.
As the parties all know, I sat through the deposition
of Mr. Casey on Wednesday, and during that deposition I became
aware for the first time of the existence of admissible
evidence through the testimony of Mr. Casey which suggests only
the possibility, and I'm not saying anything other than the
possibility, that Mr. Masterson and Mr. Popolizio may have been
present at a meeting at the MCSO at which materials from the
Montgomery investigation may have been discussed with and by
Sheriff Arpaio.
Because that was the first time I became aware, at
least to the extent that there was admissible evidence that
suggested that, I did suggest to the parties that they refer to
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CV07-2513, Melendres v. Arpaio, 9/18/15 Status Conference 17
a few issues that we would have to try to resolve today. I
think most of those issues are issues that the parties can
examine and figure out for themselves whether they need to do
anything, and I don't intend to raise those.
But I do intend to explore a little bit before we
proceed further with the issues as I frame them as being ER
3.7, which has to do with attorneys being witnesses. I hadn't
read 3.7 when I raised it; I just indicated that I thought we
all ought to read it, be prepared to discuss it.
I have now reread 3.7, I've reread the comments to
3.7, and it may be a nonissue. And I hope, you know, frankly,
it is, but it may be an issue, and so I think we need to air it
and discuss it today because as I read 3.7, the Court has an
interest that it can make overriding; the plaintiffs have an
interest that they can't necessarily make overriding, but that
they can raise to the Court. The defendants' clients in this
case have an interest in how they proceed, or at least
potential interest in how their own counsel may or may not
proceed.
So ER 3.7 relates to cases in which attorneys may be
called upon to act as witnesses and it doesn't allow it,
although it isn't a blanket prohibition. It says: "A lawyer
shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless: (1) the testimony
relates to an uncontested issue; (2) the testimony relates to
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the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client." Those seem to me to be the most
relevant sections; there are parts of the comments that are
applicable.
This comes up in the context of the invocation by
Mr. Casey and Mr. Masterson of privilege of comments made by
Sheriff Arpaio when, according to the -- as I remember it. And
you can correct me; I'm not trying to be prejudicial. Or I'm
not trying to presume facts before I've heard all the evidence.
But according to the testimony of Mr. Casey, there was a
discussion in the Sheriff's Office regarding the reliability of
Mr. Montgomery and some of the information in the documents
that have been disclosed previously. And then the sheriff made
some comments. Apparently, the comments were not disclosed on
the invocation of privilege. The question then is: Does the
attorney-client privilege apply?
Mr. Casey, I believe his testimony was that
Mr. Popolizio and Mr. Masterson were in the room, approximately
16 other people were in the room, including people from the
sheriff's public affairs office, and that the sheriff was
asking them about the reliability of Mr. Montgomery.
Mr. Casey, as I recall, testified that he believed two
Maricopa County Sheriff's representatives were on the phone,
and that was what his testimony was.
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After I raised this issue and raised the need to
determine whether or not we were going to have to reopen the
deposition of Mr. Casey to allow the answer after I made a
determination of privilege, I believe that plaintiffs' counsel
represented to me that this is not the first sworn testimony
that discussed this conversation and that there are various
versions of events, including that the person on the phone --
persons on the phone telephonically were not Maricopa County
Sheriff's Office representatives, but were in fact
Mr. Montgomery himself; and that -- and I don't remember what
you said exactly, but various persons who've testified have
given various versions of who was there and what was said.
Because the attorney-client privilege requires that
advice be given and advice be received in a confidential
relationship, and because it must relate to legal advice, I
required you to proceed on a question-by-question basis, but I
think we're still down to the question. And I noted that maybe
we're going to have to wait until the end till everybody gets
deposed for me to determine who was in that meeting, whether --
I think you also waive that there's otherwise been waiver on
this for other reasons, I don't remember. But I indicated that
maybe in the end I'm going to have to hear the testimony of
everybody who you're going to call as a witness who was present
at that meeting to determine whether or not the attorney-client
privilege applies.
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Have I accurately represented that, as best the
parties can remember?
MS. WANG: Yes, Your Honor.
THE COURT: And I think, Mr. Masterson, you were there
for part of this, but Mr. Popolizio replaced you for part of
it, too.
MR. MASTERSON: That is correct, Judge, that the
Court -- my recollection is what the Court just stated.
THE COURT: All right. So I guess the first question
I have in determining how to proceed is: Do you have any
intention to call Mr. Popolizio or Mr. Masterson as a witness?
MS. WANG: We do not, Your Honor. And just a few
minutes before we all came to court this morning we did file
with the Court the transcripts of the deposition testimony of
those witnesses that are pertinent to this issue. That would
be Sergeant Anglin, Mr. Casey, Lieutenant Seagraves,
Captain Bailey, and so you'll have those deposition transcripts
that we filed this morning.
THE COURT: All right. So do you want me to rule
today as to whether or not we're going to reopen the deposition
of Mr. Casey to have him respond to that question, or do you
want me to wait and evaluate those transcripts, or what exactly
do you want me to do with respect to the privilege invocation
with regard to Mr. Casey?
MS. WANG: Your Honor, if it would be helpful to you
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to look at the transcript excerpts, then we're happy to have
you take that into account. We think that the facts the Court
just recited are correct, and apparently defendants do, too.
We think on that basis there's enough for the Court to rule on.
There are two reasons that the January 2nd meeting --
that plaintiffs should be allowed to go into the January 2nd
meeting. Any privilege that ever did attach was waived, first
because of the presence of Mr. Montgomery by telephone;
possibly also because at least Sergeant Anglin very clearly
testified that Mike Zullo, who is a Posse member, was present.
And as far as we know, Mr. Zullo is separately represented by
Larry Klayman, he is not represented by the Sheriff's Office,
and that at least gives rise to the fact that his presence
there did not render the con -- the conversation confidential,
and therefore, no privilege attached.
Secondly, Your Honor, Sergeant Anglin testified in
detail about that meeting on January 22nd of 2014, and
Mr. Casey did testify and was permitted by defense counsel to
testify as to at least some of the subject matter of the
meeting.
THE COURT: Who's going to be addressing this on your
side, Mr. Masterson, is it you?
MR. MASTERSON: Well, there's two issues we're
discussing right now. One is whether there's a problem with ER
3.7.
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THE COURT: Yes. And let me just say, as it relates
to 3.7, when it talks about the Court having a right to object,
I'm not going to object. I mean, I think I know the
difference -- first off, it doesn't seem to me to be an issue,
because Ms. Wang indicates she has no intent or desire to call
you or Mr. Popolizio. And I suppose she could always
reconsider that, but even if she does, as I was reading the
comment, I think I'm perfectly capable of distinguishing
between when you're testifying and when you're arguing.
And with all due respect to you and to Mr. Popolizio,
I will give you the same -- I will approach your testimony,
should it ever become necessary, with the same -- in the same
manner that I approach any other witness's testimony, and then
I'll allow you to argue whatever you're going to argue, and I
think I'm perfectly capable of making a distinction between the
two. So as far as I'm concerned, I've got no objection if you
continue. It sounds to me like Ms. Wang and the plaintiffs
don't have any intention to call you as witnesses.
Just in the interest of full disclosure, I may want to
know -- and maybe this is something we can deal with right
here, although if you'd rather not, I understand that, too. I
may want to know who was in that meeting to determine whether
or not the attorney-client privilege applies. That may be an
issue to me. And we already have memories that are not
consistent, which is not surprising, in my experience.
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But I guess I would ask you to consider this. You
know, if Mr. Montgomery was on the phone, are you going to take
the position that you represent Mr. Montgomery?
MR. MASTERSON: No.
THE COURT: Do you feel comfortable answering whether
Mr. Montgomery was on the -- well, I don't even know whether
you were in the meeting, and I'm not assuming you were. But do
you have any knowledge as to whether Mr. Montgomery was on the
phone that you would be willing to share at this point or would
be appropriate to ask you to share?
MR. MASTERSON: I am willing to share. I'm not
certain how much light I can shed on the issue, however.
Mr. Casey testified that he believed the meeting was
at the Wells Fargo building, I think.
THE COURT: Right.
MR. MASTERSON: And he testified that he recalled at
least Mr. Zullo being on the phone, I think possibly
Mr. Mackiewicz.
THE COURT: I wouldn't challenge that. It seemed to
me he was not particularly clear who was on the phone, but he
did think, as I recall, that it was MCSO people, not
Montgomery.
MR. MASTERSON: My recollection of that meeting, and I
was present at that meeting, is that Mr. Montgomery was not on
the phone.
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THE COURT: Do you remember who was at that meeting?
MR. MASTERSON: I thought it was Mr. Zullo. Now,
whether Mr. Mackiewicz was also on the phone in the background
or possibly even chimed in, I don't recall.
THE COURT: You mean Montgomery or Mackiewicz?
MR. MASTERSON: No, Mackiewicz.
THE COURT: Okay. Do you have any recollection
whether Montgomery was on the phone?
MR. MASTERSON: I have no recollection of ever hearing
Mr. Montgomery's voice.
THE COURT: All right. Who else was present in the
meeting -- well, again, I don't want to make you answer any
questions that you feel uncomfortable answering. But it just
seems to me that if you are comfortable answering them to the
best of your ability, we might be able to get to the bottom of
this, and maybe we can.
MR. MASTERSON: I'm comfortable answering that
question as to who was in the meeting as best I can recall.
Again, I'm not going to shed much light for you.
THE COURT: Okay.
MR. MASTERSON: I recall Mr. Casey, me, Mr. Popolizio,
Mr. Liddy, and people from MCSO. And I cannot tell you whether
the sheriff was there, whether Chief Sheridan was there,
whether Captain Bailey was there; I just don't remember.
THE COURT: Mr. Casey testified, I think he testified
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that he thought --
Who is the public relations person?
MR. MASTERSON: Ms. Allen.
THE COURT: Yeah. He testified that he thought
Ms. Allen was present in the meeting.
Do you have a recollection one way or another whether
Ms. Allen was in the meeting?
MR. MASTERSON: I do not.
THE COURT: Okay. Thank you.
MR. MASTERSON: Now, with -- are we moving on to the
second issue, which is --
THE COURT: I think -- I mean, I'm glad -- here's the
other issue, the only other issue I wanted to raise with you.
And what you've just told me -- and, of course, Mr. Popolizio
may have independent recollections, and I don't want to make
him say unless he feels comfortable saying, but I did hear
Ms. Wang say she doesn't, at least now, intend to call
Mr. Popolizio, but here's the only other issue.
It seems to me that if your testimony would involve
testimony that the sheriff or others -- other defendants would
disagree with, as the comment says, that could create a
conflict between you and counsel -- you and your client.
So the only thing that I would just raise, and it's a
matter for you to handle, and I'm just going to raise it with
you and then let you handle it, is to make sure that there
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isn't any such conflict, and that you determine that you can
receive and do receive an appropriate waiver. And then with
that, I'm perfectly happy, for reasons I think I've put on the
record, if you and Mr. Popolizio proceed in representing the
defendants in this matter.
MR. MASTERSON: Thank you, Judge.
THE COURT: Okay. Does that take care of 3.7 as far
as everyone else is concerned?
MR. MASTERSON: And the only thing I will reserve is I
understand plaintiffs are saying they're not calling us at this
point, and the Court's also indicated its opinions on the
issue. Should it become an issue later, we'll also raise the
fact that I don't think there are any contested issues that
will come to light during the testimony in this matter, and
also that there would certainly be a substantial hardship
should we have to --
THE COURT: And the only possibility for a contested
issue, and I think this is probably clear, is: Is there going
to be a contested issue about who was there as that relates to
any possible ruling on my part on whether or not there's an
attorney-client privilege with respect to the comments that
Sheriff Arpaio made as to which Mr. Casey and you have reserved
the privilege?
That seems to me to be the only possible contested
issue, and maybe that's not contested, either. But I just
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raise it now so we can get it out of the way.
MR. MASTERSON: I understand.
THE COURT: Okay.
MR. MASTERSON: Now, with respect to the other issue,
I think the Court -- plaintiffs just submitted transcripts, and
I think the Court's going to have to take a look at the
transcripts, because I think there is a question between the
witnesses of who the heck was on the phone, and I think that
does make a difference to the Court's determination.
THE COURT: I think so, too. Let me ask: Have we
arranged to depose Mr. Zullo or Mr. Mackiewicz any earlier than
we've already arranged to do this?
MS. WANG: They are scheduled to take place on October
7th, Your Honor, so there's --
THE COURT: So do I need to wait until after we've had
those depositions before I make any ruling on this?
MR. MASTERSON: I certainly think it would help the
Court with its determinations on this particular issue.
THE COURT: Ms. Wang, I thought I heard you say that
you take the position that if I read these, I won't need to
wait for Zullo and Mackiewicz. Is that your position?
MS. WANG: That is our position, Your Honor, and
respectfully, we would request, if possible, a ruling on this
issue. This afternoon Sheriff Arpaio's deposition is scheduled
to continue at 1 o'clock this afternoon, and if we could get a
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ruling, then it could possibly avoid the need to reopen that
deposition as well, depending on the Court's ruling.
THE COURT: Mr. Masterson, you have a reaction on
that?
MR. MASTERSON: May I have one moment, Judge?
THE COURT: You may.
(Pause in proceedings.)
MR. MASTERSON: I guess my thought really hasn't
changed. I think the Court's going to have to hear all the
testimony -- or read all the testimony, I guess -- to make a
determination on what all these witnesses have to say. I mean,
already we have conflicts, and as the Court recognized, that's
to be expected. But I don't see that you can rule with limited
information when there's more information to come.
THE COURT: All right.
MS. WANG: Your Honor, we believe that you can rule,
and that is because there are two reasons this January 2nd
meeting was not privileged. The first depends on who was
present at the meeting; the second does not.
The second argument that we've made is that the
privilege was waived because Sergeant Anglin testified in some
detail about the subject matter of this meeting and what
occurred during the meeting, and he actually has very clear
testimony on who exactly was present.
So we believe that the transcript of the Anglin
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deposition alone is sufficient for the Court to rule that any
privilege was waived because of his testimony.
THE COURT: Who was representing the defendants at the
Anglin deposition?
MS. WANG: Mr. Masterson.
THE COURT: Do you have a position with respect that,
Mr. Masterson?
MR. MASTERSON: My position, Judge, is take a look at
it, and if you think there's a waiver, then you can rule on it
after you're done reading it.
THE COURT: Okay.
MR. MASTERSON: But if the issue is who was on the
phone, then I think the Court needs to hear all the
testimony -- or read all the testimony.
THE COURT: I would agree. If it comes down to who
was on the phone or who was present at the meeting, I think I
need to wait and hear all the testimony. If I look at what
Mr. Anglin said and I think there's a subject-matter waiver,
then I think that's a different consideration, isn't it?
MR. MASTERSON: I think you're correct.
THE COURT: I think I've also had, with the briefing
with respect to past waivers and the waiver I just have --
waiver I've just ruled on, I think I have all the applicable
law pertaining to waiver.
Are you uncomfortable that there's some law that you
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haven't already briefed for me on that topic?
MR. MASTERSON: If you don't have it all, you're darn
close.
THE COURT: Do I have everything you'd like me to
consider?
MR. MASTERSON: Yes, sir.
THE COURT: All right. Thank you. Here's what I'll
do. Let's proceed and handle all the other issues that I have
and that you have, and then I'll do my best to read the Anglin
deposition and tell you my thoughts. If you want to wait
around you can wait around, but I'm not going to let you wait
around in here; I will let you know as soon as I know.
There is, apparently, a deposition of Ms. Stutz on
Monday. I'm not available. The parties, at the --
MS. WANG: Your Honor, actually, that deposition is
ongoing. Some of the attorneys who are on the phone are at
that deposition.
THE COURT: Oh, really.
MS. WANG: Yes.
THE COURT: Somebody wanted a magistrate judge to be
available for a Monday afternoon deposition beginning at
1 o'clock.
I think that was you, Mr. Woods, wasn't it?
MR. WOODS: The 1 o'clock deposition beginning on
Monday is the Liddy deposition, Your Honor, and we've had --
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THE COURT: All right.
MR. WOODS: We're just started now into the Stutz
deposition, and we've had quite a bit of conversation
reflecting on the Liddy deposition.
And candidly, Your Honor, I don't see how we will get
through either of these depositions without judicial
supervision, primarily because of the 1.6 issues.
THE COURT: All right. Well, I think you indicated to
me you wanted a magistrate judge available at 1 o'clock on
Monday. I believe, because Magistrate Judge Boyle is most
familiar with this matter, he actually had a -- he had
something scheduled, but he has moved it off so that he can be
available 1 o'clock on Monday.
The parties all agreed -- at least at the deposition,
and I think everybody was represented there -- that Magistrate
Judge Boyle would be sufficient to handle any objections; and
you believed, I think you represented to me, Mr. Woods, that
after having heard my rulings as it pertained to Mr. Casey, you
wouldn't raise objections other than those that were pretty
much tailored to 1.6.
MR. WOODS: That's close to what I agreed to.
Obviously, Judge, I couldn't -- I can't waive all work product
and privilege, but I certainly have a great idea of what your
rulings would be, and therefore would be able to make
objections and instruct my witness to go ahead and answer.
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THE COURT: That is better said.
Now, I will be available here this afternoon, but I'm
not going to run down to your deposition. But I'm available
telephonically if you need to have me do something this
afternoon as you -- as you continue with Mr. Liddy.
MR. WOODS: No, it's Ms. Stutz today.
THE COURT: I'm sorry, with Ms. Stutz. Sorry, I'm
getting confused.
Mr. Liddy, you'll have Judge Boyle available.
Judge Boyle will come to where you are because he's a nicer guy
than I am, so if you will give me the address. And he would
also like to have a copy of the Casey transcript so that he can
review my rulings on the Casey transcript so that if other
matters come up, he has an idea what my rulings are, and he
would like that transcript as soon as possible.
MR. WOODS: Okay. Well, as far as the address is
concerned, Judge, it's 3033 North Central on the ground floor.
You can tell Judge Boyle if he enters the parking garage off of
Earl Drive, then he'll be a simple walk into the video
deposition place. It's called Legal Video.
As far as the transcript of the Casey deposition, I'm
going to step back and -- I haven't been ordering transcripts,
so what can we do to make sure he --
Is there one yet of the Casey deposition?
MS. WANG: Your Honor, plaintiffs have a final
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transcript and we can make that available.
How should we get that to Judge Boyle?
THE COURT: Just give it -- send it to his chambers as
early this afternoon as is possible.
MS. WANG: We'll do that.
THE COURT: All right.
MR. WOODS: Thank you very much, Judge. That's very
accommodating. Appreciate your help.
THE COURT: Sure.
All right. So it seems clear that we're going to have
to not begin on Tuesday because we're going to have depositions
rescheduled for Tuesday, is that correct?
MS. WANG: Your Honor, there's one -- generally, yes,
except that we did have an idea. We have not had a chance to
confer with Mr. Stein or defense counsel on this point.
Because of the Yom Kippur holiday, we had all agreed
that we would accommodate Mr. Stein and not call Chief Sheridan
on Wednesday. We wonder whether it would be possible to take
his deposition Wednesday -- on Wednesday and perhaps
Mr. Mitchell could stand in. That way, we could start --
sorry. I'm getting confused as well.
We would propose that we reopen the depositions on
Wednesday. That we start the hearing Tuesday with
Chief Sheridan's testimony, and then we'll take his reopened
deposition on the subject matter of the July 17th and 1500 IDs,
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and then we would continue with the testimony on Thursday.
MR. STEIN: This is Lee Stein. I'm not sure I quite
understood your suggestion. Tuesday for Chief Sheridan's
testimony for my purposes is fine. Wednesday, neither me nor
Mr. Mitchell are available; we will both be observing the
holiday.
MS. WANG: Oh. Then that doesn't fix the problem.
(Pause in proceedings.)
MS. WANG: Your Honor, we're prepared to go forward
with the reopened depositions on Tuesday and begin the hearing
Wednesday. That will be fine.
THE COURT: All right. Let me ask you: Do you have
witnesses that can go on Wednesday? Because it clearly cannot
be Chief Sheridan.
MS. WANG: Right. That's the question we were trying
to avoid having to answer. We're going to have to rearrange
because we had intended to call Chief Sheridan first. Our
order after that, as previously proposed to the defendants, and
we've sent out subpoenas, was that we would go next with
Chief Sands, then Mr. Casey, then Chief MacIntyre, Mr. Liddy,
Lieutenant Sousa, Mr. Seebert, Sheriff Arpaio, and then
Sergeant Knapp. We need to take Sergeant Knapp in the first
week at some point for scheduling reasons, and we'll have to
take him out of order, if necessary.
THE COURT: Okay.
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Any objection by any of the other parties to
proceeding in that fashion?
MS. WANG: Your Honor, I would just add that we were
trying to avoid changing the order. If we are going to start
the hearing on Wednesday and not calling Chief Sheridan, we may
need to change things around, given which attorneys on our team
are assigned to which witnesses, so I think we should confer
with defendants about this.
THE COURT: All right.
MR. MASTERSON: (Pointing to himself).
THE COURT: Yes.
MR. MASTERSON: Well, number 5 on my list of topics to
discuss with the Court today is a follow-up on what we talked
about last week, and the Court did indicate its position. But
I'm going to ask for a couple days to prepare, Judge. This
is --
THE COURT: Well, why don't we make this easier on
everybody.
MR. MASTERSON: Okay.
THE COURT: Do the depositions on Tuesday. You can
have Wednesday to prepare -- that was Yom Kippur. I shouldn't
have set Yom Kippur, anyway -- and we can begin on Thursday.
And that will give you a day to prepare and whatever time you
get on Tuesday.
That work for you?
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MR. MASTERSON: I'm going to ask for one more day,
just because I'm up here.
THE COURT: Nice try.
MR. MASTERSON: I suspected that might be the answer,
but --
THE COURT: We'll begin on Thursday, and you can make
whatever arrangements you need as it pertains to the reopened
depositions. And again, I will try to look at the --
And Ms. Wang, did you give -- I am sure you did, but
do you have copies of the excerpts of deposition that you've
given me and want me to read that you can give to the other
parties here while I go back and take a look at them?
MS. WANG: I do not even have a paper copy for myself,
so I apologize but I do not.
THE COURT: All right. Well, let me think about that
later.
Are there any issues, then, as its relates to the
status of --
Oh, Ms. Clark. You want to approach a microphone?
MS. CLARK: Thank you, Judge.
Just briefly, as to the witnesses that Ms. Wang has
outlined for the hearing, I just wanted to make a record that
Mr. Casey was deposed for I think it was almost 10 hours on
Wednesday and I hear that the transcript has been filed. And
these are his former clients, Sheriff Arpaio and the Maricopa
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County Sheriff's Office, and we would ask that his deposition
be his testimony for trial and that he not be called as a live
witness.
THE COURT: Overruled. Thank you.
I do believe that everyone here is entitled to have
Mr. Casey's deposition and the opportunity to examine and
cross-examine him, and so you can issue your subpoena. I
appreciate and understand the difficulty that it's caused to
Mr. Casey, but I believe that his presence is needed.
Have we been able to arrive at any stipulations based
on the responses to requests for admission?
MS. WANG: No, Your Honor.
THE COURT: All right.
Did you get the LEAR protocol?
MS. WANG: Your Honor, the outcome of the LEAR
protocol issue is that defendants have produced the same
version to which Sergeant Palmer testified in 2010. They have
represented that that is the last version.
THE COURT: All right. So we're through with that.
MS. WANG: I believe so. We've done what we can.
THE COURT: I again think this will not be news to the
parties because we did discuss it with all parties at the
deposition, at least informally, but here's how I intend to
proceed. All fact issues, all fact testimony, I intend to take
on the days that we set out and are holding available in
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seriatim starting on Thursday.
If you've got facts that relate to -- I haven't yet
made a determination that remedies are available, but if you've
got facts that you think bear on remedies that somebody's going
to ask for, I want them in in this part of the hearing so that
we're going to deal with all facts.
Then I think, as I indicated to the parties, I'm going
to do my best to stay on top of the facts during the course of
the hearing. And then, if you'll give me a day or two, I'll
give you a day or two, I'm going to allow you to make sort of a
closing argument on factual issues that will highlight, in
light of the facts as you see them, what remedy issues there
may be remaining.
As I believe I shared with the group, I'm not sure
that all remedies issues will relate to the experts' testimony
at all; they may just be what I think. But there has been a
request for an expert that I've granted on both sides that
relates to the adequacy of Internal Affairs investigations.
If you give me those two days and I give you those two
days, or we can decide it later, you can make your argument.
Then I can determine and provide guidance about what issues, if
any, related to the adequacy of internal investigations would
be an aid to me as the trier-of-fact so that we don't have
experts running off sort of untethered to issues that are not
going to be helpful to me and just waste more time.
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I can then determine whether or not we need the
experts. If we do, we'll have them, fairly expeditiously.
We'll give you a chance to depose them and I'll hear them, and
then I'll issue my findings, my final findings of fact and
rulings of law.
In connection with that discussion, I discussed with
everybody, and including Mr. Masterson, that last week he
basically wanted me to -- or he wanted the plaintiffs to
indicate which of the approximately 1500 IDs the plaintiffs
wanted them to do the Internal Affairs investigation on. And I
did indicate that because part of evaluating an
Internal Affairs investigation is determining what you
investigate and what you don't investigate, that would be up to
them to decide.
But as I thought about it during the week, the monitor
had indicated to me when he took possession -- or when the
marshals took possession, that he had done his best to tally
those identifications that he thought were members of the
plaintiff class, that I was willing to instruct the monitor to
give those identifications to Mr. Masterson at least as a
starting point, and I raised that with all parties; everybody
seemed to be okay with that.
Has there been any change of mind on that?
MR. MASTERSON: No change here.
MS. WANG: No, Your Honor.
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THE COURT: All right. So Chief Girvin, Chief
Martinez, are you going to have any problem giving the tally
that you have compiled to all parties and specially appearing
nonparties?
CHIEF MARTINEZ: No, Your Honor. This is
Chief Martinez. We will be glad to give them a percentage
breakdown of those so-called 1500 as to how many were Hispanic,
or appear to be Hispanic, and how many were not.
THE COURT: All right. Thank you.
I think as I also indicated in the Wednesday
deposition, I anticipate that such an adequate Internal Affairs
investigation would take some time, and I'm not sure that I
have any intention of waiting for the end of that
investigation. I'm not sure that we'll need to wait for the
end of that investigation. And there's always a possibility
that additional identifications will still come forth; some
additional identifications came forth after the 1500.
While those, it seems to me, are still subject to the
monitor's review for adequacy, that is in the normal function
of the monitor reviewing for adequacy and doesn't necessarily
require me to wait for the end of the investigation before I do
a ruling. If, after the presentation of all of the evidence, I
feel differently, I'll discuss that with the parties before we
indicate anything differently.
Any concerns about proceeding in that way?
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MS. WANG: No, Your Honor.
MR. MASTERSON: I'm not sure I have a concern about
it, Judge; I'm just a little unclear. The monitor --
THE COURT: Well, that's understandable, because I'm
not sure that I have a very solid idea; I'm just throwing out
what I would propose. So if you have concerns, raise them.
MR. MASTERSON: The monitor is, as I understand, going
to be preparing a report on internal investigations, and I
think the monitor told us a few weeks ago that that report's
going to be done sometime in early October.
THE COURT: Well, he told you that before he was aware
whether or not there was even an investigation as it pertained
to the 1500, as I recall. And it seems to me that it's going
to depend a little bit -- and maybe, you know, you're right.
Let me tell you what -- and I don't have a huge
understanding, but let me tell you what my understanding is
that the monitor has been in the process of doing for several
months that we've all been referring to as "the report." And
that is as he received these report -- and I may be wrong, so
don't hold me to this, but it's my understanding that as PSB
division would open and then close separate internal
administrative investigative files, the monitor did an
evaluation of each of those files in terms of the process and
the adequacy of the investigation as it relates to those files.
Does that help you?
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MR. MASTERSON: It does, but I guess I have another
question, in that I'm not certain to what extent the Court is
going to rely upon these results, reports, or opinions and
conclusions of the monitor in moving forward with either
factual decisions or remedies.
THE COURT: I get it. And it's one of the things that
I tried to say on Wednesday, and I wasn't very articulate
because we were just coming up with all this, but I'm not sure
how much of that will be relevant to me after the hearing's
over. It may be; it may not be. It's one of the reasons why I
think we ought to wait until the hearing's over and I can say,
You know, this really isn't all that important to me in terms
of the injunctive relief or not -- you know, if I determine
that remedies are appropriate, it depends on which -- you know,
where I find deficiencies and where remedies are appropriate.
And it seems to me it's pointless to have your expert, the
Department of Justice expert, or the monitor spend additional
time if none of that's going to be relevant.
The other reality is there may be other issues that
are collateral to those investigations that may be important to
me at that time. And if they are, then I'll tell you all at
the same time, including the monitor, and we can decide whether
we just want to have the monitor do his own report on those
separate issues or, since you've both engaged experts, whether
or not we just want to let the experts do their own reports on
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those supplemental issues and then I'll make a ruling.
MR. MASTERSON: Here's a problem I see, and it is
going to occur during the fact presentation over -- up on
through I think November 6th is our last day.
THE COURT: Well, I'm hoping we won't go that far.
MR. MASTERSON: I understand. The last day we
reserved.
THE COURT: Yeah.
MR. MASTERSON: And that is, the evidence we may wish
to offer -- and I'm just going to throw an example out there.
Let's say that the plaintiffs get up here and throw some
evidence at you involving five separate IA investigations and
argue to you -- or at the end would argue to you that they were
insufficient and they want additional remedies based upon the
insufficiency of those IA investigations.
If that were their offer, I might want to throw up
evidence of 600 more that they don't dispute to show, Hey, look
at all these other IA investigations we're doing the monitors
haven't criticized, so that outweighs their five. So unless we
have conclusions, I guess, from the monitors, I'm uncertain
what evidence to try to put before you on these issues.
THE COURT: How about we do it this way, then. When
we get to the end, based on the evidence that the plaintiffs
are going to present, if in fact you believe that there may be
additional evidence related to remedies that I might choose --
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I might indicate are necessary, you can try and convince me to
reopen and reconsider additional supplemental facts related to
defined issues that interest me on the remedies issues.
Do you understand what I'm saying?
MR. MASTERSON: I do.
THE COURT: Is that acceptable?
MR. MASTERSON: Fair enough.
THE COURT: All right.
MS. WANG: Your Honor, I just -- I'm sorry, was Mr. --
Are you done?
I just wanted to point out that the defendants have
made a production of a limited universe of Internal Affairs
investigation files to us --
THE COURT: Um-hum.
MS. WANG: -- and so I believe that that's the
universe of evidence plaintiffs have had access to, and those
are the IA files that we intend to present evidence on.
If Mr. Masterson is suggesting that he is going to
introduce evidence at a hearing before the Court on other
Internal Affairs cases that we have not had access to, we would
object to that.
THE COURT: I understand, and that was my
understanding, that the -- and it's been the order of the Court
that the MCSO has had to identify and produce -- identify
particular investigations, disclose them to the Court, and then
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the monitor has been reviewing those specific investigations.
But as you say that, just so nobody's hiding the ball,
it may be, for example, with respect to the driver's license
issue, I don't know how many, if any, of those internal
investigations relate to driver's licenses issues. But when we
get to the end of this hearing, if I determine that the
Internal Affairs division only investigated five or six
officers for taking driver's licenses and there is evidence
that there is lots of officers who took driver's licenses, it
may be that I'll feel like I need additional comment on whether
or not those investigations are adequate, or it may be that I
don't think that; that I've already been able to determine that
I can make that determination.
If I determine that I want an opinion on that from,
say, the experts, then I'm not sure that I can't allow
Mr. Masterson to make a case, depending upon what the experts
say -- and I have no intention of letting this get out of
control, I assure you. But I'm not going to completely
preclude Mr. Masterson from trying to introduce relevant
evidence if I pose a -- if I feel like I need to pose a
question like that for the experts to opine on.
Everybody clear on that?
MS. WANG: Yes, Your Honor. And as long as plaintiffs
would receive