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Steven H. Rosenbaum (NY Bar #1901958)
J onathan M. Smith (DC Bar #396578)
R. Tamar Hagler (CA Bar #189441)
Christy E. Lopez (DC Bar #473612)
Eric W. Treene (NY Bar #2568343)
Sean R. Keveney (TX Bar #24033862)
J essica C. Crockett (NY Bar #4694972)
Anika Gzifa (DC Bar #495394)
Matthew J . Donnelly (IL Bar #6281308)
Attorneys
United States Department of J ustice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Phone: (202) 305-3216
Facsimile: (202) 514-1116
E-mail: anika.gzifa@usdoj.gov

Attorneys for the United States


IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA



United States,

Plaintiff;
v.


Town of Colorado City, Arizona, et al.,

Defendants.



No. 3:12cv8123-HRH

UNITED STATES MOTION TO
COMPEL DEPOSITION
EVIDENCE REGARDING
RELIGIOUS INFORMATION




UNITED STATES MOTION TO COMPEL DEPOSITION EVIDENCE
REGARDING RELIGIOUS INFORMATION

Despite this Court denying Defendants Motion for Protective Order Regarding
Certain Religious Information, ECF No. 98, Defendants Counsel advised Defendants
employees that they should refuse to answer relevant Religious Information questions
during depositions based on a First Amendment privilege. As outlined below,
Defendants employees consequently refused to answer many relevant questions
concerning Religious Information, such as who currently leads the Fundamentalist
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Church of J esus Christ of Latter-day Saints (FLDS), which government officials were
FLDS members, and whether the FLDS church utilizes a security force. Pursuant to
Federal Rule of Civil Procedure 37, the United States moves this Court to compel answers
to these and other relevant questions and for an order holding again that, in this case
regarding religious discrimination and Establishment Clause violations, discovery of
relevant religious information is proper and necessary.
The United States submits the following Memorandum in Support.
MEMORANDUM IN SUPPORT
I. PROCEDURAL BACKGROUND
The United States has already extensively briefed why this case necessarily
involves some discovery regarding the religious beliefs and practices of FLDS. See U.S.
Resp. to Defs. Mtn. Religious Info., ECF No. 95. The heart of this case involves
allegations that Defendants have engaged in a long-standing pattern or practice of
discrimination on the basis of religion. Specifically, the Complaint alleges that
Defendants have repeatedly and regularly discriminated against non-FLDS individuals in
the provision of policing services and housing. Beyond religious discrimination, the
Complaint further alleges that Defendants have impermissibly delegated decision-making
and authority to the FLDS, entangled governmental and religious functions, fused
government power and religious authority, and impermissibly advanced religion in
violation of the Establishment Clause. See Compl. 4, 5, 33, 52, ECF No. 1. The
Complaint details how this impermissible fusion between Defendants and the FLDS
Church operates, including how the Colorado City Marshals Office (Marshals Office)
improperly shares law-enforcement information with FLDS security personnel, assists the
FLDS Church in surveillance of non-FLDS members, conducts license plate checks at the
request of FLDS security personnel, and enforces religious edicts of Warren J effs and
other FLDS leaders, among other conduct. See Compl. 19, 21.
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Despite the nature of this case, Defendants moved for a protective order to exclude
discovery and use of Religious Information, an order this Court deemed unwarranted.
ECF Nos. 77 & 79. The proposed order sought to exclude the following:
No Party may disclose, produce, or request evidence (in either written
discovery or depositions) regarding FLDS teachings, practices, or beliefs,
including but not limited to polygamy, underage marriage, loss of
priesthood, apostates, lost boys, repenting from afar, handling of
members, prophesy, etc.
Prop. Order 1, ECF No. 77-1; ECF No. 98. The proposed order further sought the
exclusion of evidence of Warren J effs or other FLDS leaders recordings, dictations,
sermons, teachings, directives or other statements except if they were specifically
addressed to a Government official with respect to their official government business
Prop. Order 1-2. Even Defendants proposed protective order, however, conceded the
relevancy of evidence regarding whether an individual witness is or was FLDS or non-
FLDS. Prop. Order 1.
In support, Defendants relied primarily on Guthrey v. California Dep't of Corr. &
Rehab., No. 1:10cv2177, 2012 WL 2499938 (E.D. Cal. J une 27, 2012), which denied
discovery in an employment discrimination suit of certain religious information based on
relevance and First Amendment privilege. See generally id. Defendants attached
exemplary transcript of former Hildale City Manager J eremiah Barlow from a different
case asserting that the transcript showed harassing questions asked to embarrass the
witness. See Hildale Reply Religious Info. 6, ECF No. 97.
This Court denied the proposed protective order, finding that the religious
information Defendants proposed to exclude was relevant given that this case involves
claims of religious discrimination. Order 3, ECF No. 98. This Court also found that
Defendants failed to show any particularized harm or injury from the discovery of the
religious information, and that the transcript showed no improper questioning. Order 3-4.
Finally, this Court held that even if Defendants had shown any particularized harm, the
Court would find that the public interest in this case outweighs any private interests."
Order 4.
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The week of J uly 23-26, 2013, the United States attempted to depose Marshals
Officers Shem J essop, J eremiah Darger, and (former Officer and) current Colorado City
Town Clerk Vance Barlow. See Depos., Exs. 1-3. During these depositions, and after
this Court already denied their motion for a protective order, Defense Counsel essentially
enforced their failed protective order by advising their witnesses that they had a First
Amendment right not to answer certain questions. These questions were precisely of the
nature contemplated by the Parties and the Court in briefing and ruling on Defendants
failed motion for protective order. Defense Counsel initially stated that they were
advising the first deponent, Officer Shem J essop, that he had a First Amendment right not
to answer based on Guthrey the very case upon which Defendants based their denied
motion for a protective order. While Defense Counsel advised their employee witnesses
that they had a First Amendment right not to answer, Counsel maintained that they were
not instructing the employee witness not to answer. E.g., S. J essop Dep. 47:7-50:13,
Ex. 1. The witnesses were informed that Defendants attempt for a protective order
failed, and that this Court could compel the answers and possibly order sanctions. E.g.,
S. J essop Dep. 50:14-51:7. The witnesses nevertheless refused to answer questions that
involved religious information. As the depositions proceeded, Defense Counsel appeared
to enlarge their argument past Guthrey to a more general First Amendment association
case law privilege argument. See, e.g., S. J essop Dep. 72:7-73:15 (You need to read the
cases that say asking questions and compelling answers about other individuals who
share the same belief, is in itself an infringement upon an individual's First Amendment
Right.), 105:3-106:16; J . Darger Dep. 74:3-74:16, Ex. 2, (I advise the Department of
J ustice at some point in time to have one of its hundreds lawyers review the case law on
First Amendment rights, both from the Supreme Court and Ninth Circuit, which includes
protecting the identity of individuals who share a common belief, including, for example,
their places of worship. Its not a hard case to read.); V. Barlow Dep. 133:8-134:12,
Ex. 3 (I would hope the J ustice Department would read the Supreme Court from 1976
on that exact issue . . . ). Defense Counsel never responded to the United States two
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written requests for the particular case law Defense Counsel alluded to during these
depositions. E-Mails from M. Donnelly, U.S. Dept. of J ustice, to J . Matura, Colorado
City Defense Counsel, (J uly 26, 2013; Aug. 5, 2013), Ex. 5. This pattern of Defendants
employee deponents asserting a First Amendment right not to answer questions, based on
the advice of Defense Counsel, continued during depositions taken the week of August
27-30.
Defendants thus forced the United States to file this Motion to Compel this
relevant evidence. As the attached deposition excerpts and discussion below show,
employee witnesses refused to answer numerous and varied questions on First
Amendment grounds, which barred the United States from asking additional lines of
questions. Accordingly, the United States respectfully moves this Court to reopen these
depositions and compel answers to the refused questions as well as additional related
questions.
1
II. LEGAL STANDARD

Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense . . . . Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. Fed. R . Civ. P. 26(b)(1). This Court has broad discretion to permit or deny
discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). The Federal Rules of
Civil Procedure create a broad right of discovery because wide access to relevant facts
serves the integrity and fairness of the judicial process by promoting the search for truth.
Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995).



1
The United States has attached deposition excerpts showing the deponents refusal to
answer numerous and varied questions. The United States submits that these refusals to
answer qualify as a total failure to respond under LRCiv 37.1(b).
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III. ARGUMENT
A. Defendants Employee Witnesses Refused to Answer Highly
Relevant Questions That Went to the Heart of the United States
Religious Discrimination and Establishment Clause Claims.
The United States Complaint details allegations, with concrete supporting
examples, of how Defendants have acted in concert with FLDS leadership to deny non-
FLDS individuals housing [and] police protection, enforced the edicts of the FLDS, to
the detriment of non-FLDS members, operated as an arm of the FLDS and carry out
the will and dictates of FLDS leaders, particularly Warren J effs. See, e.g, Compl. 4,
5, 16-19, 28. As a result, whether a particular city official or employee of Defendants
identifies as an FLDS member, and the extent which that city official follows FLDS
Church directives and the teachings of Warren J effs, is highly relevant as to whether
Defendants have, e.g., operated as an arm of the FLDS. Similarly, numerous witnesses
are expected to testify that city officials discriminated against them based upon their
status as purported (former FLDS) apostates, making these officials knowledge of
their FLDS membership highly relevant.
Despite this and the Courts ruling that the very same religious information sought
through the depositions is relevant and discoverable, Defense Counsel advised employee
deponents that they had a First Amendment right not to answer questions relevant to
these topics. Officers refused to answer a host of questions regarding Warren J effs and
other FLDS leaders. Former Officer Vance Barlow, and current Colorado City Town
Clerk, refused to answer whether he, when he was an officer, had any communications
with FLDS leader Warren J effs while J effs was a fugitive. V. Barlow Dep. 133:8-
134:12. He similarly refused to answer whether he, while he was employed by the
Marshal's Office, sent any of his salary or money to Warren J effs when J effs was a
fugitive. V. Barlow Dep. 138:18-139:10. Former Officer Barlow refused to answer
where the last place was that he saw FLDS Bishop Lyle J effs. V. Barlow Dep. 101:1-
103:2.
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Similarly, Officer Shem J essop refused to answer whether Warren J effs is the
current leader of the FLDS Church. S. J essop Dep. 67:1-67:7. Additionally, after stating
he was not sure whether William Timpson J essop was ever a FLDS bishop, Officer
J essop refused to answer the natural follow up question of whether he had ever seen
William Timpson J essop perform services as a bishop. S. J essop Dep. 67:8-68:18.
Officer J essop also refused to answer who the FLDS Bishops were for the last few years.
S. J essop Dep. 56:18-58:4. Given that who constitutes the FLDS leadership is essentially
non-secret, publicly known information, these deponents refusals appear to be
unjustifiably obstructive.
Defendants employees also refused to answer hosts of questions regarding
government officials FLDS membership, as well as officials knowledge and actions.
Officer Shem J essop, while stating that he was a FLDS member two years ago, refused to
answer why he was not sure whether he was a FLDS member for the last two years, and
despite his unsure status whether he wished to still be a FLDS member. S. J essop Depo
55:4-55:16. Relatedly, he also refused to answer whether he currently wanted to follow
FLDS leader Warren J effs and J effss directives. S. J essop Dep. 60:4-60:14. Despite
objecting that the United States was violating the First Amendment when asking these
questions, Defense Counsel deemed these types of questions proper during their
depositions; they asked another witness, Willie J essop, whether he was a FLDS
member, who he considered to be the FLDS prophet, and whether and when he was a
follower of Warren J effs. W. J essop Dep. 24:10-25:25, Ex. 4. The United States did not
object to this line of questioning and the deponent answered each of Defense Counsels
questions.
Officer J essop also refused to answer whether or not he knew which current
Marshals officers, or other government officials, were FLDS members. S. J essop Dep.
83:19-86:16. Officer J essop also refused to answer what particular religious beliefs
caused the Police Officer Standards and Training (POST) authorities for Arizona and
Utah to decertify three Marshals officers. S. J essop Dep. 156:10-157:8, 159:1-160:11.
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Town Clerk Vance Barlow, after claiming he did not know whether former Colorado
City Mayor Richard Allred was a FLDS member, refused to answer the natural follow up
question of whether he had ever seen Mayor Allred at the FLDS Church Meeting House,
or even walking into the publicly viewable doors of the Meeting House. V. Barlow Dep.
87:1-87:20. Town Clerk Barlow also refused to answer whether he has ever seen
Marshals officers in uniform inside the Meeting House. V. Barlow Dep. 103:2-103:20.
Again, in contrast, Defense Counsel asked Willie J essop questions about which
Marshals officers were FLDS members, W. J essop Dep. 170:6-173:15, and Church
services where FLDS leaders told people whom to vote for in elections. W. J essop Dep.
64:17-64:21; see also W. J essop Dep. 68:21-70:25.
Defendants employees also refused to answer questions regarding the FLDS
Churchs security force. Officer J essop refused to answer whether any government
officials are also members of the FLDS security force. S. J essop Dep. 101:1-101:13.
Town Clerk Barlow chose to answer that only FLDS members can attend FLDS services,
but refused to answer whether anyone guards the publicly viewable doors to the Meeting
House. V. Barlow Dep. 96:2-96:18, 97:17-100:24. Regarding video surveillance,
Officer J essop refused to answer whether in his capacity as police officer he had ever
been inside the meeting house and witnessed video surveillance monitors, S. J essop Dep.
104:23-106:16, and similarly whether he had ever seen video surveillance monitors
inside the FLDS Bishops residence. S. J essop Depo.107:4-108:7. He also refused to
answer whether he knew if the FLDS Church has security cameras. S. J essop Dep.
132:11-132:17. Defense Counsel deemed such questions appropriate during Willie
J essops deposition, asking numerous questions about his and others roles in church
security, and related communications with FLDS leaders. E.g., W. J essop Dep. 31:13-
35:12)
Defendants employees also refused to answer relevant questions regarding the
FLDS Churchs new United Order. Based on information and belief, the United
Order is a new exclusive FLDS group whose membership is determined by FLDS
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leadership; FLDS members not approved into the United Order are asked to leave their
families and repent in hope that FLDS leadership will eventually choose them for the
United Order; United Order members are expected to consecrate all their property over to
the FLDS Church. Membership status therefore is relevant to show, among other things,
motives of government officials to appease FLDS leadership.
Officer Vance Barlow chose to answer that he was a FLDS member, but not
whether he was a member of the United Order or whether he had consecrated any of his
property to the United Order. V. Barlow Dep. 141:15-142:6, 155:23-156:7. Similarly,
Officer Darger refused to answer whether he was ever a member of the United Order, and
whether he ever consecrated his police firearm to the United Order. J . Darger Dep.
169:1-170:25. Officer J essop also refused to answer whether he has ever been a member
of the United Order. S. J essop Dep. 176:18-177:12. The details of a government
officials membership status in the United Order and the FLDS Church generally, which
can include loss of family, is relevant to show pressure to conform their government
actions to FLDS directives as well as bias in their overall testimony.
During depositions taken the week of August 27-30, Hildale Mayor Phillip
Barlow, and Officers Curtis Cooke and Sam J ohnson, continued the above pattern of
refusing to answer questions regarding relevant religious information, based on the
advice of Defense Counsel.
2
B. The Deposition Questions Do Not I nfringe on Any First Amendment
Privilege
Defendants employees refusal to answer the above
questions not only prevented discovery of the highly relevant answers, but also prevented
the foundation for additional lines of questions central to the United States claims.
Defendants have not articulated clearly which First Amendment right they advised
their employee witnesses to assert or given the United States any supporting case law; but


2
These deposition transcripts for the week of August 27-30 are not yet available.
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the record suggests they are attempting to assert a First Amendment associational
privilege. Similar to the denied protective order, this Court should find no violation of
any associational privilege because: (1) Defendants have not articulated a
particularized burden; (2) the withheld information sought is highly relevant and central
to the United States claims, and (3) even if Defendants could show a particularized
burden, the public interest in disclosure outweighs any burden on individual association
interests.
The First Amendment rights to speech, petition the government, and free exercise
of religion include the right to associate to engage in those activities. Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984); NAACP v. Alabama, 357 U.S. 449, 462-63 (1958). In
the context of discovery, the First Amendment creates a qualified privilege from
disclosure of certain associational information, see NAACP, 357 U.S. at 462, but this
privilege is not absolute. See Buckley v. Valeo, 424 U.S. 1, 65-66 (1976), superseded in
non-relevant part by statute as stated in McConnell v. Fed. Election Commn, 540 U.S. 93
(2003); Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010).
In the seminal right to association case, NAACP v. Alabama, Alabama sought
discovery of the identity of the NAACPs rank and file members. The Supreme Court
found that the NAACP had showed that on past occasions revelation of the identity of its
rank-and-file members has exposed these members to economic reprisal, loss of
employment, threat of physical coercion, and other manifestations of public hostility.
357 U.S. at 462. The Court found discovery of entire membership lists of a group like the
NAACP was subject to enhanced scrutiny because of the potential infringement upon the
groups and members rights to free association and free speech. Id. Because Alabama
was unable to show that the membership lists had a substantial bearing on the issues in
the case, the Court found that the association privilege outweighed the interest in
disclosure. Id. at 464-65.
To assert this qualified association privilege, the proponent must first make a
prima facie showing that demonstrates an objectively reasonable probability that the
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compelled disclosure will chill associational rights, i.e. that disclosure will deter
membership due to fears of threats, harassment, or reprisal from either government
officials or private parties. See Buckley v. Valeo, 424 U.S. 1, 69-72 (1976); NAACP, 357
U.S. at 462-63; Perry, 591 F.3d at 1160.
Defendants motion for a protective order already tried and failed to articulate a
sufficiently particularized harm from discovery of this religious information. Order 3-4,
ECF No. 98; see also Buckley v. Valeo, 424 U.S. 1, 69-72 (1976) (finding insufficient
showing of harassment and consequently rejecting freedom of association claims).
Moreover, the above deposition transcripts examples show that the United States is not
seeking information that would threaten, harass, embarrass FLDS members, or even
seeking religious information regarding/from FLDS members who are not germane to the
case. Rather, the United States seeks discovery of relevant religious information, targeted
to support its religious discrimination and Establishment Clause claims, from witnesses to
its allegations. See NAACP, 357 U.S. at 463-64 (comparing rank and file members
identities that were immaterial to the case with NAACPs agreement to divulge the
purposes of the Association and its activities within the State . . . as well as the identity of
its members who are employed by or hold official positions with it).
Defendants own protective order motion proposed that the Parties should be able
to discover whether an individual witness is or was FLDS or non-FLDS, Prop. Order 1,
and that this case will necessarily involve inquiry into religious matters. Hildale Reply
3, ECF No. 97. The United States has previously supplied this Court with a long string of
cases where Courts have found discovery of religious matters is appropriate when the
information is relevant to the cases legal claims. U.S. Resp. to Defs. Mtn. Religious
Info. 9-12, ECF No. 95.
Even if Defendants could show a particularized harm, the significant interest in
disclosure outweighs any burden on the individual association interests. See Perry, 591
F.3d at 1161. This Court has already ruled that the public interest in disclosure of this
religious information outweighs any private interests this case. Order 4, ECF No. 98.
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This Court should reiterate that same finding for this Motion to Compel.
Protecting against religious discrimination is undoubtedly important to the public. See
Perry, 591 F.3d at 1161. As outlined above, this discovery of religious information is
highly central to the issues in this religious discrimination and Establishment Clause case.
See id. Regarding the First Amendment interests at stake, the United States
acknowledges that courts have an obligation to protect against unnecessary government
intrusion into religious affiliations and practices, but that is not present here. Indeed, this
suit concerns the First Amendment interest in protecting individuals from unlawful
government religious discrimination and government entanglement with religion. See id.
Courts have found that, like here, eradicating discrimination constitutes a
compelling state interest. New York State Club Assn. v. New York City, 487 U.S. 1, 14 &
n.5 (1988); (noting the State's compelling interest in combating invidious
discrimination in challenge by clubs to New York City law against discrimination in
public accommodations); Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537, 549 (1987) (Even if [the forced admission of women members] does work
some slight infringement on Rotary members right of expressive association, that
infringement is justified because it serves the States compelling interest in eliminating
discrimination against women.); Roberts v. United States Jaycees, 468 U.S. 609, 623
(1984) (Minnesota's compelling interest in eradicating discrimination against its female
citizens justifies the impact that [forced admission of women into associations sub-
group] may have on the male members associational freedoms.); E.E.O.C. v. Townley
Engg & Mfg. Co., 859 F.2d 610, 620-22 (9th Cir. 1988) (holding that the government
has a compelling state interest in preventing religious discrimination, enforced through
Title VII, sufficient to overcome an employers Free Exercise interest in mandatory
devotional meetings); E.E.O.C. v. Pacific Press Pub. Assn, 676 F.2d 1272, 1280 (9th Cir
1982) (Congress purpose to end discrimination is equally if not more compelling than
other interests that have been held to justify legislation that burdened the exercise of
religious convictions), abrogation on other grounds recognized in Am. Friends Serv.
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Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991). Here, any incidental
burden on association from discovery of relevant religious information in this case ranks
much less than the burden of forcing an association to accept unwanted members that the
Supreme Court approved in Roberts and Duarte.
This Court accordingly should find Defendants Counsel improperly advised
employee witnesses, and these witnesses consequently improperly asserted, a First
Amendment privilege because they have not shown a particularized burden, and even if
Defendants could, the public interest in disclosure outweighs any burden on individual
association interests.
IV. CONCLUSION
For the reasons above, the United States respectfully moves this Court for an order
that reopens these depositions, compels answers to the refused questions as well as
additional related questions, and again ordering that in this case regarding religious
discrimination and Establishment Clause violations, discovery of relevant religious
information is proper and necessary.



Respectfully submitted,


STEVEN H. ROSENBAUM
Chief
Housing and Civil Enforcement Section

J ONATHAN M. SMITH
Chief
Special Litigation Section

R. TAMAR HAGLER
CHRISTY E. LOPEZ
Deputy Chiefs

ERIC W. TREENE
Special Counsel

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SEAN R. KEVENEY
/s/ Matthew J. Donnelly
J ESSICA C. CROCKETT
ANIKA GZIFA
MATTHEW J . DONNELLY
Attorneys
United States Department of J ustice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
Phone: (202) 305-3216
Facsimile: (202) 514-1116
E-mail: matthew.donnelly@usdoj.gov
September 5, 2013

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CERTIFICATE REGARDING DISCOVERY MOTION
Pursuant to LRCiv 7.2(j), I certify that that after personal consultation and sincere
efforts to do so, counsel have been unable to satisfactorily resolve the matter. See, e.g.,
Ex. 5.


MATTHEW J . DONNELLY
/s/ Matthew J. Donnelly
Attorney for the United States
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CERTIFICATE OF SERVICE
I certify that on September 5, 2013, I caused a copy of the foregoing United
States Motion to Compel Deposition Evidence Regarding Religious Information to be
sent via the Courts ECF system to the following:

J effrey C. Matura
Asha Sebastian
Graif Barrett & Matura, P.C.
1850 North Central Avenue, Suite 500
Phoenix, Arizona 85004
Attorneys for Defendant Town of Colorado City

Peter Stirba
Kathleen Abke
R. Blake Hamilton
Stirba & Associates
215 S. State St., Suite 750
Salt Lake City, UT 84110
Attorneys for Defendants City of Hildale, Twin City Water Authority, and Twin
City Power




MATTHEW J . DONNELLY
/s/ Matthew J. Donnelly
Attorney for the United States
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