Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 1 of 42

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Plaintiffs,

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7
8

)
)
)
)
)
)
)
)
)
)
)

vs.
Joseph M. Arpaio, et al.,
Defendants.

Phoenix, Arizona
na
January 15, 2015
3:03 p.m.

OG

10

CV 07-2513-PHX-GMS
S

Manuel de Jesus Ortega

Melendres, et al.,

BO

.C
OM

11

EF

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13

TH

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REPORTER'S
OF PROCEEDINGS
RT 'S TRANSCRIPT
RTE
TR
TRAN

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BEFORE THE HONORABLE G. MURRAY SNOW

OF

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(Telephonic
Status Conference)
(Tel
Te

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ND

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20

IE

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FR

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2
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Court Reporter:
Co

Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263

Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 2 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

A P P E A R A N C E S

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2
For the Plaintiffs:

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5

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Daniel J. Pochoda, Esq

Esq.
.
AMERICAN CIVIL LIBERTIES
BERTIES
ERTIES
FOUNDATION OF ARIZONA
RIZONA
P.O. Box 17148
Phoenix, Arizona
85011-0148
zona 850
85011
(602) 650-1854
1854
85

BO

8
9

OG

10

Jorge M.
. Castillo,
Castillo
astillo Esq.
MEXICAN
LEGAL DEFENSE
CAN
AN AMERICAN
AMERIC
AMERICA
AND
FUND
D EDUCATIONAL
EDUCATION
EDUCATIONA
Regional
Regiona Counsel
Cou
634
Street, 11th Floor
63 S.
S Spring
Sp
Spr
Los Angeles,
California 90014
Ange
ng
(213)
(213
213)
) 629-2512

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EF

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13

TH

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20

IE

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FR

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2
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Andre
Segura, Esq.
An
AMERICAN
CIVIL LIBERTIES UNION
A
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2676

For Amicus
United
States of America:
us U
Un
ted S

ND
S

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OF

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Cecillia D. Wang, Esq.

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California
a 94111
111
(415) 343-0775

.C
OM

Elizabeth A. Strange
First Assistant U.S. Attorney
UNITED STATES ATTORNEY'S OFFICE
405 W. Congress Street, Suite 4800
Tucson, Arizona 85701
(520) 620-7300

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 3 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

A P P E A R A N C E S

1
2
For the Defendants:

Michele M. Iafrate, Esq.

IAFRATE & ASSOCIATES
649 N. 2nd Avenue
Phoenix, Arizona 85003
(602) 234-9775

For the Defendant Arpaio:

Thomas P. Liddy, Esq.

Senior Litigation Counsel
nsel
MARICOPA COUNTY ATTORNEY'S
OFFICE
ORNEY'
ORNEY
'S OFF
FF
Civil Services Division
vision
ision
222 N. Central Avenue,
1100
Avenue Suite
Su
Sui
Phoenix, Arizona
na 85004
(602) 506-8066
66

For Sheriff Arpaio:

A. Melvin
n McDonald,
McDonald Esq.
JONES, SKELTON & HOCHULI, P.L.C.
2901 N.
N. Central
Centra Avenue, Suite 800
Phoenix,
85012
oenix
enix,
, Arizona
Ariz
(602)
60 ) 263-1700
602
2 -17
263

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9
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11

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For Deputy
Gary L. Birnbaum, Esq.
y Chief
hief
ie MacIntyre:
Ma
MacI
DICKINSON WRIGHT, P.L.L.C.
Attorneys at Law
1850 N. Central Avenue, Suite 1400
Phoenix, Arizona 85004
(602) 285-5000

ND

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TH

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OF

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For Chief Deputy Sheridan:

Esq.
n: Lee D. Stein,
S
Barry D. Mitchell, Esq.
MITCHELL
STEIN CAREY
MITC
TC
One
On Renaissance Square
2 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
(602) 358-0290

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EF

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Also
lso present:
pre

IE

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FR

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BO

OG

.C
OM

Deputy Chief MacIntyre

Chief Robert S. Warshaw, Monitor
Lynnette C. Kimmins
Rosaleen T. O'Gara
Joshua Bendor, Esq.

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 4 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

P R O C E E D I N G S

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2

THE CLERK:

This is civil case number 07-2513,

.C
OM

Melendres v. Arpaio, on for a telephonic status conference.

e.

Counsel, please announce your appearances.

MS. WANG:

Cecillia Wang of the ACLU for the plaintiffs.

and Andre Segura and Josh Bender of the A

ACLU,
CLU,
CL
U, and
nd Jorge
Castillo from MALDEF.

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12

BO

10

Also on the phone for the plaintiffs

ffs are Dan
Da Pochoda

THE COURT:

Thank you.

MS. WANG:

14

THE COURT:

15

MS. IAFRATE:
AT
ATE

I will,
Honor.
ll, Your
You Ho

TH

All right.
right

Good
ood afternoon, Your Honor.

Michele

15:04:29

OF
THE
COURT:
H COURT
CO
:

18

Good afternoon, Ms. Iafrate.

be doing the speaking on behalf of the

Will
ill you
y

ND

defendants?
fendants
endants?
?

MS. IAFRATE:
M

21

THE COURT:

22

MR. McDONALD:

IE

20

FR

Thank you.

Iafrate and Tom

om Lidd
Liddy on behalf of Sheriff Arpaio and MCSO.

17

19

be doing the speaking

Will you
Wil
ou b

today, Ms. Wang, on behalf of

f plaintiffs?
plain
plaintiff

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15:04:20

OG

This
his is

EF

Good afternoon, Your Honor.

15:03:57

Yes, Your Honor.

Okay.

15:04:39

Thank you.

Your Honor, a formal appearance,

2
23

Mel McDonald on behalf of Sheriff Arpaio, for the limited role

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of the issue that you had raised about the possibility of

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federal criminal contempt.

15:04:51

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 5 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

THE COURT:

Mr. McDonald.

All right.

Good afternoon,

I will say --

MR. McDONALD:

THE COURT:

Thank you.

Good afternoon.

.C
OM

I don't know if you're on the

speakerphone, but you're coming over very loud here.

MR. McDONALD:

Let me turn my phone

here.
e down he
here

Is that better?

THE COURT:

MR. McDONALD:

You bet.

10

MR. BIRNBAUM:

Good afternoon,
Honor.
oon,
oon
, Your H

Thank you.
ou
u.

OG

Much better.

BO

Okay.

15:05:01

This is

Gary Birnbaum appearing for Deputy

and
uty
ty Chief MacIntyre,
Ma

12

Mr. MacIntyre is present with

me.
h me
m
.
THE COURT:

Good
afternoon, Mr. Birnbaum.
d afternoon

14

MR. BIRNBAUM:
:

15

MR. STEIN:
N:

you, Your Honor.

Thank
ha
y

TH

13

EF

11

Good
Your Honor.
d afternoon,
a
af

Lee Stein and

Barry Mitchell
on behalf of Chief Deputy Sheridan, in
l appearing
appea

17

the limited
d capacity
apacit to deal with the issue of federal

18

contempt,
criminal contempt.
pt,
, crimi
crim

THE COURT:

ND

19

Good afternoon, Your Honor.

This is

15:05:44

Chief Warshaw, the Court's monitor.

IE

FR

Good afternoon.

CHIEF WARSHAW:
C

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15:05:28

OF

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15:05:13

THE COURT:

Good afternoon, Chief.

2
23

I appreciate the parties appearing telephonically.

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(Loud sound heard on telephone.)

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THE COURT:

Have we got a foghorn in the background?

15:05:54

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 6 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

Is everybody hearing that?

MR. McDONALD:

THE COURT:

I'm hearing it, Your Honor.

Well, I guess we'll just have to plow

.C
OM

through.

I appreciate everybody appearing telephonically.

lly.
.

It
t

occurred to me, as I read the briefings that you've

filed,
e all filed
led

and thank you for filing them, that in order to

o efficiently
efficient

proceed, we needed to resolve some matters, and so I've

I
I'

scheduled this status conference early in the hope

op that we

BO

could resolve some matters and proceed

efficiently as
eed as effi
eff

11

possible.

12

particularly the parties, but

t also the nonparties, since I have

13

raised the potential of a criminal referral for contempt.

OG

10

EF

It requires me to raise
questions of
se some
so
q
que

TH

the matters that relate

the parties and the nonparties,
re
rel
e to both
b

16

and then I'll probably

move
into more of the party questions I
probab
m

17

had, although,
course, the nonparties are welcome to listen.
ou h,
, of co
c

18

That when
do hearings
over the telephone, it's much -- I
hen
n we d
h

19

will
ll
l want to have everybody who wants to be heard be heard, but

20

it's
it
it'
's much easier if you identify yourself for the record before

21

beginning to speak.
beginn
begin

15:06:46

IE

ND

OF

15

FR

15:06:24

Let me just say

to start off dealing with
sa I'm
I' going
go
goi

14

22

15:06:03

15:07:02

I will also remind those who are present in the

2
23

courtroom that we don't allow recordings, and I don't know if

24

you are making any recordings but I will remind you of that,

25

and signal to those who are on the telephone that there are

15:07:16

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 7 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

persons present in the courtroom listening to the proceedings.

It occurs to me that very long ago I began requiring

that investigative matters be referred to the United States

Attorney's Office, and I don't know whether a representative

ive of

the U.S. Attorneys's Office is here, but that I required

red that

matters be referred to the United States Attorney's

and
s Office
Offi
an

to the Maricopa County Attorney.

.C
OM

I did request and the United States

Office
s Attorney's
Attorne
Attorney

did appear at the December 4th hearing in which

whic I outlined the

BO

reasons why I am contemplating seriously

contempt
ously a criminal
cr
crim

11

referral.

12

appearing on behalf of Sheriff

ff Arpaio,
Arpa , indicated that he would
Arpaio

13

like to receive the materials

rials
als that go to the United States

14

Attorney.

15

investigative materials
could go to the United States Attorney
er
eri
s coul
cou

16

as long as the
States Attorney treated them as if they
e United
Unite St

17

were under seal.

eal
al.

OG

10

EF

15:08:19

OF

TH

I think we had
ha agreed
agree in that meeting that

Plaintiffs
requested at that time to consider whether
Plain
lain f

19

or not they
an objection, and in a recent filing they
hey had
h

20

indicated they did not have any objection to Mr. McDonald

21

receiving such materials.

receiv
recei

22

limited appearances, and I don't want to prejudice anybody by

lim
li

FR

15:07:57

And in that conference

who was also
e Mr
Mr. McDonald,
McDon
cD

IE
ND
S

18

15:07:37

15:08:32

But since then we have received the

2
23

calling it a limited appearance, but perhaps a nonappearance by

24

Mr. Birnbaum and Mr. Ouimette on behalf of Deputy Chief

25

MacIntyre, Mr. Stein on behalf of Chief Deputy Sheridan, and

15:08:54

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 8 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

Mr. Stein, I believe you've also represented Mr. Mitchell in

this matter.

I'm sorry, Your Honor.

Mr. Mitchell is my

.C
OM

MR. STEIN:

partner, and he and I together represent Chief Sheridan.

THE COURT:

All right.

I understood from the monitor

onitor

that you were present during an interview representing

ting Chief

Bailey as well.

That's correct, Your Honor.

onor.
onor
.

Chief Sheridan and Captain Bailey.

THE COURT:

All right.

11

MS. STRANGE:

OG

10

We
e represent

BO

MR. STEIN:

Excuse me,
Honor.
, Your
You Hono
Ho

15:09:28

And I don't mean

to interrupt, but this is -- I just

to make my presence
ust wanted
wan

13

known.

14

Office on the call, and

nd with
it me
e is assistant U.S. attorney

15

Lynnette Kimmins and

U.S. attorney Rosaleen O'Gara.
an assistant
ssista
ist

EF

12

TH

This is Elizabeth
the U.S. Attorney's
h Strange from
f

THE COURT
COURT:
:

15:09:46

Thank you.
Tha

OF

16

15:09:10

So my
y first
s question is, so that all the parties

17

understand,
tand
an , or all
l the nonparties understand, the monitor here

19

is serving a b
bifurcated function.

20

MCSO's self-investigative processes, but when he

not only M

21

concludes his reason to determine whether or not those

conclu
concl

22

self-investigative processes are adequate, he has the right to

se

It is his job to investigate

15:10:08

FR

IE

ND

18

2
23
24
25

conduct his own investigations.

However, the self-investigative investigations can be
subject to some protections for the individual members of the

15:10:28

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 9 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference

Sheriff's Department being investigated, and so we have a

bifurcated procedure with which you may or may not be familiar.

.C
OM

In that procedure, I require the Maricopa County

3
4

Sheriff's Office to file under seal with me the topic, and

d

subjects of, internal investigations.

by the statutory protections that apply there, I do

o believe

that we want to, within the spirit of the statute,

ute,
ute
, protect
protec the

individuals to the extent that the statute protects

them.
prote
th

that is the reason why from time to time

e the MCSO files things

BO

under seal.

That is separate from the

monitor's independent
he monitor
monito

12

interviews, and the monitor has

has, it is my understanding,

13

conducted a number of independent

interviews in the last
dependent
pendent i

14

several weeks.

15:11:14

TH

EF

11

15:10:49

And

OG

10

And while I am not

t bound
boun

And it's al
also my
understanding, Ms. Iafrate, that you
a
y un
u

16

have asked for

of those interviews even though you
r transcripts
transcrip
trans

17

or a member
r of
f your
r staff was present at each of those

18

interviews,
involved persons who either are now, or at
iews
w , as they
h

19

least
were,
ast
st were
re, in
i positions with your client.

15:11:27

OF

15

I've instructed the monitor, it seems to me only fair,

I

20

we're going to give you transcripts, that we give them to

if we'
we

22

the plaintiff, and I've heard no objection.

th

2
23

wondering if there's any objection to the materials, once

24

they're provided to the parties, if there's a procedure by

25

which anybody wants to object if the individual attorneys

RI

21

15:11:46

And so I'm

15:12:03

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 10

representing potential defendants in a criminal contempt matter

also have access to those interviews?

MS. IAFRATE:

Your Honor, this is Michele Iafrate.

May I be heard?

THE COURT:

MS. IAFRATE:

.C
OM

You may.

15:12:20

Your Honor, I actually asked

d for the

digital cassette tapes because the interviews were

tape-recorded.

indicated to me that I could have those tapes,

tapes but
bu in the

BO

So Mr. Warshaw -- excuse me,

, Chief Warshaw
War
W

future I would be bringing my own tape

recorder and taping for
ape recorde
record

11

myself.

12

team would transcribe these for me

me.

OG

10

EF

So I didn't anticipate that the

e -- that the monitor

13

That's the only clarificat

clarification
I have.
larificat

14

THE COURT:

TH

All right.
right

And I appreciate that

clarification.

I wa
was just
sort of putting forth my
w
st s

16

understanding,
, but I do appreciate the clarification.

15:12:55

OF

15

Do
o you
ou have
v any objection, Ms. Iafrate, if the

17

interviews
done b
by the monitor that are independent interviews
iews
w don

19

are
e provided both to the United States Attorney and/or any of

20

attorneys for the specially appearing parties here, receive

the attorn

21

copies of those interviews?

the co
th
c

22

MS. IAFRATE:

IE

ND

18

FR

15:12:38

15:13:13

Your Honor, on behalf of my client, I do

2
23

not.

This is Michele Iafrate.

On behalf of my client, I do

24

not have an objection.

25

better coming from the individual attorneys that represent

I think that the objection may be

15:13:31

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 11

individuals in potential criminal matters.

understanding that these interviews, people are mandated to

appear for these interviews, and if there is criminal concern

and they're mandated to be there, should they have been

Mirandized?

15:13:53

THE COURT:

All right.

Well, certainly I want to

Because it's my

.C
OM

explore any procedure by which any of the unrepresented

-- or
presented -

the specially appearing parties would wish to make

ma
a objection
an

to requests made by persons for -- made by other defendants

for
d

BO

those interviews, but it seems to me

interviews
e they're
they e public
p

11

and what's said is said.

OG

10

Right, Ms
Iafrate?
Ms.
. Iafrat
fr

MS. IAFRATE:

13

I agree that what

at is said is said, but I'm not so

16
17

TH

THE COURT:
T:

right.
All rig
ri

Well, why don't we then come

Chief
why don't you publish a list of the
h ef
f Warshaw,
Warsha
s

interviews
that you have done in independent interviews,
iews
w tha

19

provide
ovid it to the parties, and provide it to the appearing
ovide

20

nonparties.
nonparties

21

transcript or a copy of that interview they may do so, and any

transc
trans

22

other party may request -- or any other nonparty may object.

ot

FR

15:14:32

up with a procedure.
cedure.
cedure

IE
ND
S

18

certain that I would characterize

them as public interviews.
characteri
characteriz

OF

15

Your Honor
Honor,
, this is Michele Iafrate.

EF

12

14

15:14:13

And if anyone wishes to make a request for the

2
23

But I do believe that -- and if any nonparty wants to

24

make an objection, they can now, but I believe that plaintiffs

25

are entitled to have copies of those interviews.

15:14:49

15:15:09

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 12

Does any nonparty want to make an objection?

MR. McDONALD:

criminal contempt issue with Sheriff Arpaio.

.C
OM

Judge, this is Mel McDonald on the

What I would ask to do is to be given the opportunity

unity
it

to first review the interview and then make a decision after

I
ft

find out who's been interviewed and the nature of the

interview, to then, if I don't object, to make -- to file

something with the Court that I don't object;

ct
t; and
an if
f I do

object, to file something with the Court

those
t setting forth
f

BO

objections why I think it would be prejudicial

prejudicia to Sheriff

11

Arpaio to have that information transmitted

either to the
transmitt

12

plaintiffs or any other person

case.
on in the
t
c
THE COURT:

13

Well,
l, what if any one of some of the other

nonparties object to your

those transcripts,
you receiving
recei
receiv

15

Mr. McDonald?

TH

14

MR. McDONALD:
McDONAL :
McDONALD

OF

16

THE
COURT:
H COURT
CO
:

17

15:16:04

Well --

I mean, I can't allow you to review them

all to determine
whether you have an objection if some other
determi

ND
S

19

15:15:46

EF

OG

10

18

15:15:25

party
rty has an objection to you receiving them.
MR. McDONALD:
M

20

I think, perhaps, the procedure I would

recommend is that we identify the people interviewed, and -- to

recomm
recom

22

get an idea who we're even dealing with; who are being
ge

FR

IE

21

15:16:17

2
23
24
25

interviewed and how it might impact us.

THE COURT:

All right.

Chief Warshaw, can you provide

a list to the parties and the specially appearing nonparties of

15:16:35

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 13

the independent interviews that you have conducted?

CHIEF WARSHAW:

We will do that, Your Honor.

THE COURT:

Then if any specially appearing nonparty -- or any

ny

All right.

Thank you.

.C
OM

party -- has any objection to the materials being turned

ed over

to the plaintiff or turned over to any other specially

ally

appearing nonparty, including the United States

Attorney, I'll
s Attorney

give you one week to file such concern, and then we c

can -- then

we can deal with the concern.

11

THE COURT:

12

MR. McDONALD:

13

THE COURT:

16

THE COURT
COURT:
:

20

OF
THE COURT:

THE COURT:

FR

EF

Thank you.

15:17:33

22

25

Yes, Your Honor.

procedure
procedure?

MS. STRANGE:

24

15:17:25

Ms. Strange, are you all right with that

21

2
23

Thank you.

Ms. Stein, are you okay with that

Ms

MR.
MR
R. BIRNBAUM:
B N

19

am, Your Honor.

I am
a

Mr.
apparently.
Mr
r. Stein,
Stein
e

IE
ND
S

18

Yes.

Mr. Birnbaum
Birnbaum,
irnbaum,
, are you okay with that

MR. BIRNBAUM:
BA
BAU

procedure?

15:17:17

That was Mel

l McDonald?
McDonal ?
McDonald

15

17

Fair enough,
, Judge.
Judg .
Judge

TH

procedure?

BO

MR. McDONALD:

All right?
t?

OG

10

14

15:16:49

Yes.

Thank you, Your Honor.

All right.

So we will proceed in that

fashion.
And Chief Warshaw, when we conduct additional
independent interviews, we'll just make lists and provide them

15:17:41

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 14 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 14

to the -- both of you parties and the nonparties.

get that list, you will have one week in which to file any

objection to their being turned over to the parties and/or the

e

nonparties.

All right.

CHIEF WARSHAW:

THE COURT:

And once you

.C
OM

Yes, Your Honor.

15:18:01

the parties.

I want to proceed in a

manner that is efficient and fair and expeditious,

so I
ditiou , and
ditious
a

have some questions of the parties today,

the nonparties
y, and if
f t

TH
EF
OG
B

Again, I appreciate it.

OW

Now, I have read the briefings

s filed
file by
b

10

want to intervene, they can, but I'm

m going
goin to request that the

11

parties be heard first.

12

concerns about
In the December 4 hearing
hea
earing I expressed
ex

13

might
matters that I thought mig
ight
ht give rise
r
to civil contempt and

14

possibly -- and in some

som
me I think
k I indicated a likelihood would

15

result in criminal
l contempt
conte
co tempt
mpt
t proceedings.

16

that it was my
y understanding
under anding that even as to those matters that
understan

17

I was going
ng to
o -- that
that I thought might proceed to criminal
tha

18

contempt
pt I had
d to determine whether or not a civil contempt

20

would
sufficient
woul
uld
ld be suff
ficient to serve the Court's interests.
Among those I may -- I raised the violation of this
A

21

Court's preliminary injunction entered on December 23rd, 2011;

Court
Court'

22

I discussed the failure of the MCSO to respond to discovery

FR

15:18:49

OF

But I did acknowledge

IE
ND
S
19

15:18:25

2
23

requests that were timely delivered by plaintiffs prior to

24

trial; I also raised Chief Sheridan's failure to comply with

25

the Court's order of May 14, 2014, and I asked for the parties'

15:19:07

15:19:33

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 15 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 15

input on those, and the parties' input on whether or not there

were, for example, a suitable remedy in the case of the

preliminary injunction, since the preliminary injunction has

since been made permanent.

.C
OM

In the plaintiffs' response, the plaintiff asked

ked
d only
ly

that I issue an order to show cause as to the sheriff's

iff's
iff
s

violation of the preliminary injunction and Chief

Sheridan's
ief Sherida

failure to comply with the Court's orders on

not
n May 14;
; has
h

asked for any proceedings relating to failure

respond to
ailure to
o r

BO

discovery.

And I just want to ask a few questions,

Ms. Wang,
quest
ues

11

principally of you about that.

OG

10

EF

complex than they have to

o be
be.

But
ut I just want to make sure

14

that if we're going to

as you've requested, in
o have hearings,
hear
ea

15

which we're going to

the players that you've
t be
e bringing
bri
brin

16

requested here
evidentiary hearings, and we would later be
e for evide
e

17

bringing them
due to the failure to respond to your
h m back,
back
b
, d

18

discovery,
ery
ry,
, I'm
I'm wondering if we shouldn't begin that all at --

19

begin
all in a piece so that we can schedule it correctly,
gin that
at al

20

even if we
w have to have separate hearings as to those matters.

ND

IE

FR

15:20:40

OF

TH

13

22

15:20:19

I, of course, am not
to
t anxious
anxio
t make matters more

12

21

15:19:50

15:21:02

That doesn't mean that I -- if you don't want to raise

the failures of discovery at any time, then that's fine with

th

2
23

me, we'll just proceed.

But if you do want to raise those

24

failures of discovery, I guess I want to get that out on the

25

table and understand why we shouldn't proceed to determine

15:21:20

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 16

whether or not there's going to be a determination that there

was a failure to provide discovery, and then figure out what

the appropriate remedies for the plaintiff are.

Do you understand my question, Ms. Wang?

MS. WANG:

I do, Your Honor.

.C
OM

And plaintiffs would

u

request at this time that if the Court is going to order an

n

evidentiary hearing if we request it, that it should encompass

enco

all three areas that Your Honor just mentioned.

ned.
ned
.

BO

The reason we didn't ask for an

hearing
n evidentiary
evidenti
evidentia

specifically on the failure to turn over video

ide and audio

11

recordings is that it seems that the facts

ct are pretty clear on

12

that failure.

13

defendants wish to be heard

those
ard
d on thos
hos issues, then it would be

14

our request that the evidentiary

evidentiar hearing cover that as well.

OG

10

EF

TH

Ms. Iaf
Iafrate?
Ia

16

MS. IAFRATE:
IAFRATE

OF

THE COURT:
T:

15:22:17

Your Honor, this is Michele Iafrate.

Y

There
issues that relate to the audio and
h re
e are factual
fa

17

ND
S

video recording
recordings,
specifically whether they fall within certain
cordin

19

date
just to give you one example.
te
e parameter,
paramete

20

issues.
factual is

So there are
15:22:37

I did note that plaintiffs' counsel did not touch on

22

that issue, and I was -- I was confused why or why not, but I
th

FR

IE

21

2
23

assumed that they wanted to pick their battles.

THE COURT:

24
25

15:21:55

But if there are any factual

issues, or if
fac

15

18

15:21:37

result.

Well, and I'm not trying to dictate a

What I'm trying to do is, I think I said, proceed

15:22:58

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 17

efficiently, but also fairly and expeditiously.

And so I guess, Ms. Iafrate -- and I understand what

you're saying, because the discovery was only open for a

certain period and I understand what you're saying, but it

t

would be my preference if we're going to have an evidentiary

entiary
ia

hearing, and it does seem to me, for reasons that I think

thin

Ms. Wang sort of briefly alluded to and perhaps

s you have

acknowledged, it seems clear to me that there

or at
re are items,
item
it

least there are potentially items that clearly wer

were called for
we

10

and that clearly existed during the discovery period that were

11

not provided.

12

factor into which were and which

or maybe if any were
hich weren't,
weren'
we

13

or any weren't.

14

fashion if it's going

done.
g to be done
on

.C
OM

BO

OG

EF

TH

But I would
to do that all in an orderly
ould
ld like t

OF
MS.
S IAFRATE:
IAFRAT
IAFRATE

This is Michele Iafrate.

Your
our Honor, I'm just -- I want to make certain that I

18

understand
what you're saying.
derstand
erstand wh

20

the issue regarding failure to respond to discovery

hearing t
hearing,

21

would also be an issue addressed in the evidentiary hearing?

IE

ND

19

FR

15:24:00

Ms. Iafrate?

17

22

15:23:39

And I realize that

the timing may -- may
t -- that
at t

Do you have
to proceeding in that way,
av any objection
ave
obj
ob

15
16

15:23:19

THE COURT:

That within the evidentiary

15:24:17

Yes, because it seems to me that many of

2
23

the same players are going to be involved, and I just don't

24

want to keep dragging them back here.

25

bring them back for multiple hearings, I want them -- I want it

And if we do have to
15:24:35

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 18

to be clear what the hearing is about, and I want them -- I

want to proceed in a timely fashion, so that we can resolve

what we need to resolve and go forward with whatever we need to

go forward with, including if we need to go forward with a

criminal contempt hearing, so that these -- these specially

cially
ll

appearing parties can know whether they're serving a purpose

purpos or

not, and what they may want to attend or not, so I

I'd
'd like to do

that all at once.

.C
OM

BO

And that may mean, for example -to give

- I'm
I'm going
go
goi

you some dates.

It may mean that on

n day 1 we take the

11

preliminary injunction issue; day

the discovery
ay
y 2 we
w take
ta

12

issue; and day 3, for example,

determine that there is
e, if w
we de

13

going to be an issue that

to whether or not the MCSO
t relates t

14

tried to interfere with

th its
ts own self -- or tried to interfere

15

with an appropriate
once these matters came
te self-investigation
lf-inv
in

16

to light, that
t might be day 3.

17

it in an orderly
and do it all in a relatively
or erly
rl fashion
fash
a

18

compressed
period
ssed
ed peri
per
d so we know where we're going with this.

15:25:10

15:25:31

But simply so that we can take

OF

TH

EF

OG

10

Any objection to proceeding in that way?

ND

19

MS. IAFRATE:
M

21

No, Your Honor.

22

THE COURT:

IE

20

FR

15:24:52

This is Michele Iafrate.

All right.

15:25:51

Now, it does seem to me that

2
23

particularly as it relates to the failure to respond to

24

discovery, although the remedy for that can be contempt, and

25

I've looked that up, and would be contempt, there are also --

15:26:04

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 19

there's also inherent authority and authority under certain

statutes and rules that I would be proceeding under, but I will

try to note those particular statutes and rules in my order to

o

show cause so that you, Ms. Iafrate, are made aware of what
at --

the legal authorities that are at play.

.C
OM

15:26:27

In conjunction with that, though, Ms. Iafrate,

rate,
rate
, you
ou may
m

remember that when you came into this case and Mr

Mr.
. Casey left,

he had advised the Court that he would expeditiously

editiously
ditiously review the

materials that were discovered, I think they were documentary

BO

materials, but there were other materials

well -- purses;
erials
rials as
s w

11

cell phones; things that were discovered

scovered in the offices of the

12

HSU, or the former offices of

-- to determine whether
f the H
HSU -

13

those materials had ever actually

provided to plaintiffs'
ctually been
b

14

counsel.

15:26:46

TH

EF

OG

10

Do you know
no where
now
re he
h stands on that review?

16

MS. IAFRATE:
IAFRATE

OF

15

15:27:02

This is Michele Iafrate.

T

Your
o r Honor,
Honor he has not reviewed the documents and the

17

materials.
als
s.

What I did two week -- no, last week, is I went

Wh

19

over
er
r and
a
just collected all of it, sent it to an outside vendor

20

and had it copied so that we could begin the comparison, but

21

a copy to plaintiffs' counsel so that she can have

also provide
p

22

the information and the documents that she has been requesting
th

15:27:30

FR

IE

ND

18

2
23
24
25

since May.
THE COURT:

All right.

And so when do you -- when

will you be able to provide those materials to plaintiffs'

15:27:44

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 20 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 20

counsel?
MS. IAFRATE:

If she hasn't received the first batch,

she should get it today.

But I believe that we have already

sent the first batch to her.

.C
OM

So we have gathered all of the stuff, for lack

k of
o a

better word, Your Honor, and we are in the process of providing

providi

that to Ms. Wang, who has been very patient in not receiving
receiv

this information.
All right.

BO

THE COURT:

15:27:56

Then let
to file a
et me ask you
y

notice with the Court, Ms. Iafrate, the dates that that

11

material will be delivered to Ms.

. Wang.
Wan .
Wang

OG

10

15:28:18

And Ms. Wang, if when

receive it you will then
en you
ou rece

EF

12

provide the Court with an

n estimate of how long it will take you

14

to ascertain whether or not

ot you were previously provided with

15

these materials.

TH

13

MS. WANG:
WANG:

Yes, Your Honor.

Yes

OF

16

15:28:36

I will do that.

Do
o you
ou want
n us to file that with the Court formally?

17

COURT:
THE
HE C
R

18

MS WANG:
MS.

ND

19

THE COURT:
T

20

I do.

Okay.
The other matter, as it relates to whether

or not
no Chief Sheridan and/or others should be held in contempt

22

for their failure to comply with my directives of May 14, it

fo

FR

IE

21

15:28:49

2
23

seems to me that those fit into, or arguably fit into the

24

larger question of whether Maricopa County Sheriff's Office,

25

the defendants, have done an appropriate self-investigation of

15:29:11

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 21 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 21

the Armendariz, the Cisco Perez, the other matters that have

been raised as a result of those, or whether they have

intentionally sought to obstruct such an investigation.

.C
OM

And frankly, while sheriff -- or Chief Deputy

Sheridan's failure to comply with my orders could, in and

d of

itself, be an appropriate matter of contempt, of a contempt

proceeding, and I'm still considering whether I should make

it
ma

so, it does seem to me that if we're going to try and

an make this

efficient, I know that some of the internal

rnal MCSO investigations
i

BO

relate to those matters, and some of

independent
f the monitor's
moni
monit

11

investigations wait -- or relate to those matters,

and it seems
m

12

to me that both of those investigations

are proceeding apace,
estigat
estigations

13

and we might well be well

l served
serve to schedule this hearing with

14

enough time -- enough time out

out,
t, not too much, but enough time

15

out to allow those

to be completed and the
e investigations
investiga
tig

16

monitor to provide
which then the parties are
ovide an
a assessment
as

17

made aware of
of the monitor's assessment of whether
f in
i terms
term
e

18

or not there
been intentional efforts or -- or potentially
here has
h

19

intentional
to subvert full investigations into these
tentional
entional efforts
e

20

matters
matters.

FR

TH

OF

15:30:17

ND

IE

21

2
23

15:29:52

EF

OG

10

22

15:29:33

15:30:35

Do you have any idea, Ms. Iafrate, as to the

completion of the timing of the internal investigations at

com
co
MCSO?

24

MS. IAFRATE:

This is Michele Iafrate.

25

Your Honor, are you encompassing the investigations

15:30:50

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 22 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 22

that were filed to you under seal?

THE COURT:

Well, I think they've all -- that's

essentially what I mean, yeah.

under seal.

I think they've all been filed

d

.C
OM

I'm not --

MS. IAFRATE:

THE COURT:

MS. IAFRATE:

Right --

15:31:08

Yeah.
I'm sorry, Your Honor.

I am just

trying, without mentioning the investigations,

trying
to
ons
ns,
, I'm
I
t
try

figure out the total amount of investigations

ations that
ha you would
like a time frame for.
THE COURT:

11

OG

10

BO

Well, how about

bout we do
d this?

Would you,

similar -- similarly to filing

with the Court as to
ng a notice
no

13

when the materials have been

to Ms. Wang, if you could
en provided
provid

14

file a notice with the

e Court
Cour as
s to any estimates as to the

15

completion of the inv

investigations
that you have noticed, I do
i
stigat
iga

16

note -- you know,

a lot of things being a judge, and
now,
now
, you
yo learn
le

17

I have learned
r ed
d that
t you have time periods that you have to

18

complete
te these
hese investigations in as a practical matter, and

19

so --

ND

MS. IAFRATE:
M

21

THE COURT:

IE

20

FR

15:31:39

OF

TH

EF

12

22

15:31:17

Right.

15:31:55

-- I think that you could -- I don't think

it's unreasonable, but, you know, of course, you can educate

it

2
23

me, because you know this better than I do, but I don't think

24

it's unreasonable to request when you believe the internal

25

investigations will be completed.

15:32:10

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 23

MS. IAFRATE:

THE COURT:

We can provide that to you, Your Honor.

All right.

Now also, just as a practical

matter, I think I voiced before but I don't know whether or

not -- pardon me -- you were attorney then, it doesn't seem

em to
t

me that 38-1101 applies to Sheriff Arpaio himself because

use
e he's
s

not an employee of the MCSO; he is the sheriff.

.C
OM

Do you have a position on that one way

y or the other?
ot

MS. IAFRATE:

That was in one of your previous

us orders
orders, and so I

BO

Your Honor, this is Michele

Iafrate.
Miche
I
Iaf

believe that that is law of the case,

does not
e,
, that
ha 38-1101
3838

11

apply to Sheriff Arpaio.

13

Would it
position
that it does?
t be your
yo
p

I'll allow you to brief it if you believe

that it does.
b
MS. IAFRATE:

Honor, I don't know the

Well Your
Well,
Yo
You

TH

14

answer to that question,

es
esti
n, so if you're giving me an opportunity

16

to look into it
appreciate the opportunity.
it,
, I would
w

OF

15

THE
COURT:
H COURT
CO
:

17

I will allow you to look into it.

15:33:04

But I

would ask
k you to do that expeditiously.

18

15:32:50

EF

THE COURT:

OG

10

12

15:32:31

MS IAFRATE:
MS.

ND

19

THE COURT:
T

20

Very well.

All right.

Now, one of the issues for

which -- well, before we proceed, I did intentionally give

22

everybody all the pages that they wanted so that we wouldn't

ev

FR

IE

21

15:33:16

2
23

have to go through a lot of pre-briefing about whether or not I

24

was going to issue an order to show cause; that I would just

25

make a determination based on a full opportunity to brief.

15:33:34

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 24

But it does occur to me as I've read the briefs that

some of you -- or that the parties may wish an opportunity to

respond to each other's briefs, which I'd be willing to at

least ask if you want to respond to each other's briefs.

MS. WANG:

.C
OM

Your Honor, for the plaintiffs, this

is is

Cecillia Wang.

We would be happy to respond to the

e defendants'
defenda
defendant

briefs.

the question of whether to issue an order to

cause,
we
o show
sho cau
a

think that the -- the briefing so far is

that
s pretty
prett clear
c
cl

BO

If Your Honor is going to -- if you're

only at
e looking o

there is a basis to issue the order to show cause.

c
ca

11

extent that there are any questions,

ions
ons,
, then
en we would be happy to

12

brief something very quickly.

.

13

THE COURT:

14

Ms. Iafrate.

15

MS. IAFRATE:
AT
ATE

16

There
points.
e are a couple
cou

To the

TH

Thank
nk you.
you.

OF

This
his is Michele Iafrate, Your Honor.

18

minimal
limit,
we would do expedited responses, given the
l page l
i

19

opportunity.
portunity.
portunity

ND

expensive a
as what
wh
w have provided to you, but if you set a
we

THE COURT:
T

20

24
25

Well, how about 10 pages each side, and

15:34:50

it to me by the end of next Friday?

have i

IE

FR
2
23

15:34:29

Obviously, it won't be as

17

22

15:34:22

EF

OG

10

21

15:34:02

MS. WANG:

That's fine with plaintiffs, Your Honor.

MS. IAFRATE:

This is Michele Iafrate.

That's doable.

Thank you, Your Honor.

THE COURT:

All right.

Now, let me just say, and I

15:35:01

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 25

don't mean that you shouldn't respond to these points if you

haven't, because I haven't yet issued an order to show cause,

but I also don't want to be too cute.

.C
OM

It seems to me that the case for -- that one of the

e

things we will be taking up almost certainly is the violation

olation
ation

of the preliminary injunction by the defendants in this case.

case
s

Again, I will consider carefully anything in the

he response,
response but

it does seem to me like in light of some of the positions

taken
posi
positi

by both parties in their briefs, there's

other
matters we
s some othe
th

15:35:17

BO

ought to address as it pertains to a civil

hearing for
civi contempt
co
con

11

the violation of the preliminary

by the defendants.
y injunction
injuncti

OG

10

15:35:38

EF

Let me just say that

that the burden of
t I realize
rea

12
13

proof and the standard of

f knowledge is different for civil and

14

criminal contempt.

15

hearing that this ma

matter
to be referred for a criminal
m
er needs
ne
nee

16

contempt hearing,
it seems to me that matters -- decisions
ing,
ing
, then
th
i

17

will have t
to be made
d by myself or by the assigned judge, or

18

another
assigned judge if I decide to refer it out, that I'm
r assigne
assign

19

not
t going to presently prejudice by deciding.

15:36:00

ND

OF

TH

But
after the civil contempt
ut if
f I determine
de
det

However, and I think both parties have addressed this,

H

20

a coercive purpose behind holding a civil contempt

is there
th
the

22

hearing on the violation of the preliminary injunction?

he

FR

IE

21

15:36:21

2
23

MS. WANG:

Your Honor, for the plaintiff, this is

24

Cecillia Wang.

Plaintiffs would ask, just to be clear, that

25

the Court conclude any civil contempt proceeding.

We have

15:36:45

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 26

asked for certain remedies that are laid out in our brief that

we think are warranted just on the record that has developed so

far.

.C
OM

And after an evidentiary hearing we would ask for

r an

opportunity at that point to propose additional remedies.

es.
.

We
e

think that these remedies are meant to compensate members

member of
o

the plaintiff class for harm they've already suffered,

uffered,
uffered
, and
an that

there is a coercive purpose to be served by

y issuing other
ot

remedies through the civil contempt proceeding

ceeding in order to stop

15:37:02

BO

ongoing harm and prevent future noncompliance

compliance to the detriment

11

of the plaintiffs.

OG

10

15:37:22

So, yes, in short, it's

position that we
it'
it
's plaintiffs'
pl
plaint

EF

12

believe there should be an evidentiary

hearing; that we
evidenti

14

should -- plaintiffs should have

av an opportunity to submit any

15

additional proposals
in civil contempt, and that
al on
als
n remedies
rem
reme

16

that happen independently

of any referral for criminal contempt
ndepend
ndependentl

17

that the Court

o rt
t would
woul like to make.

15:37:39

OF

TH

13

THE
HE COURT:
C R

18

Ms. Iafrate?

MS IAFRATE:
MS.

ND

19

Your Honor, if I understood your

question correctly, yes, there can be a coercive slash

21

compliance purpose in civil contempt remedies, and I think that

compli
compl

22

similar to plaintiffs' counsel, we set forth some suggestions

sim
si

15:37:57

FR

IE

20

2
23

within our briefing as well.

24

THE COURT:

25

All right.

Well, then I will allow the

parties to brief that, and you don't have to brief that in the

15:38:17

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 27 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 27

10 pages, but I'll presume that there may be some sort of

coercive purpose that is available through civil contempt.

Both parties have seemed to acknowledge that there is
s

.C
OM

a potential compensatory purpose that is applicable to the

e

violation of the preliminary injunction, and that is the

he

reimbursement of the victims of the Sheriff's Office

ce when
whe it

detained people that it had no right to detain after the

preliminary injunction.

BO

I will just make the observation

on that it did occur to

me when I listened to the trial testimony

Sheriff Arpaio and
timony of S

11

Deputy Armendariz, and I believe one or two

other deputies,
t

12

that it was clear that at least

ast some
som -- there was some

13

occasional violations of my
preliminary injunction going on,
y prelimi

14

but -- although I noted

my findings of fact and
ed it
t in m

15

conclusions of law,
w, none
ne of the parties really addressed that

16

further at the
e trial.
trial

TH

OF

15:39:14

And
n then
th
i became clear through, I think, the MCSO's
it

17

own self-investigation
-- and acknowledgment, to be fair to
lf
f-invest
inves

19

MCSO;
brought forward and acknowledged it -- that in fact,
SO
O; they
ey br

20

was ever made by the sheriff's Office to any

no communication
communi

21

of its
it patrol personnel.

IE

ND

18

FR

15:38:53

EF

OG

10

22

15:38:35

I think I need to correct that.

15:39:33

It seems to me that

2
23

that's the case, but I think the MCSO has only acknowledged

24

that there was no communication made to the HSU that it should

25

stop its immigration interdiction patrols, and so those

15:39:49

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 28 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 28

immigration interdiction patrols continued.

It also it seems to me, based on the material that I

received from plaintiffs but was not aware of, that Sheriff

Arpaio made pronouncements that, as a matter of policy, they

hey
y

still turned over -- held and detained, turned over people

eople
le to
o

ICE that they didn't have any basis to charge on a state-law

state a

basis.

.C
OM

And I must say, without discussing

specifics
of
g the specif
ec

BO

8
9

any particular interview, that the monitor's

-tor's
tor
s briefings
brie
brief
limited, though they are, to the Court
urt
rt of the interviews that

11

he has conducted -- suggest, at least,

the violations that
least that
th

12

may have happened in a year and a half

are quite numerous.
h

13

That interdiction patrols

continued; that all of the patrol
s continued

14

personnel may have been

en involved
nvolve in detaining persons.

15

And so I will
tell
w
wi
ell you that -- okay.

15:40:23

TH

EF

OG

10

I just have

concerns, because
ause I want to hold this order to show cause

17

relatively
y quickly,
uickly
ickly,
, and it seems to me that whether or not we

18

can really
determine the victims and seek remuneration on their
ally
ly det

19

behalf
that we ought to expeditiously pursue, but
half
alf is
s something
som

20

I want to explore with you both the practicality of doing that

21

how you anticipate doing that.

and h
ho

15:40:49

22

Ms. Wang.

FR

IE

ND

OF

16

MS. WANG:

2
23

15:40:09

Yes, Your Honor.

15:41:19

First, in answer to

24

question one, one thing I would propose is that the Court could

25

essentially bifurcate the civil contempt proceeding into a

15:41:37

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CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 29

liability and then a remedies phase, so that at the close of

the evidentiary hearing I think the Court could issue an order

that conclusively determines whether the respondents to any

order to show cause are liable for civil contempt.

.C
OM

Plaintiffs don't want to delay that finding, and

d I

think that to the extent that it could take a little

le bit longer
long
o

to identify and then to compensate individuals who were

harmed
wer h

by that, that policy and those detentions, could happe

happen
after
p

that in a second stage.

BO

11

suggested in our briefing --

12

THE COURT:

EF

15

THE COURT:
T:

Yes,
Honor.
es, Your
es
Yo
H
Ho

TH

MS. WANG:

It
seems to me that it may be that even if
t seem
see

we cannot obtain
complete records of everyone who was the
ain complet
com

17

victim of this
conduct,
that whether or not we can obtain the
t is
s conduc
d

18

records
everybody
is pretty relevant to me as to whether or
s of
o ever
eve
b

19

not
-t - or
r at least could be relevant to me as to whether or not

20

a criminal contempt hearing ought to follow the civil contempt

21

hearing.
hearin
heari

ND

IE

FR

15:42:29

OF

16

22

15:42:18

Can I interrupt
you before you get to
nterrupt yo
nterrup

that, Ms. Wang?

14

OG

As to how that second stage

we
e should happen,
h
ha

10

13

15:41:59

15:42:50

So Ms. Iafrate, do you have any notion whether or not

2
23

it is possible to determine, based on MCSO's records and

24

operative procedures that existed prior to this lawsuit,

25

whether or not you can ascertain in everybody that your

15:43:08

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 30 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 30

deputies detained without -- detained based only on the

assumption that they were in the country without authorization?

MS. IAFRATE:

This is Michele Iafrate, Your Honor.

As I sit here right now, I would need to talk to my

y

.C
OM

clients about that capability, because your question was quite

specific whether I could find all of them.

someone conducted a stop without anyone else's knowledge except

for that individual, deputy -- I could not find that.

that

BO

If, for
r example,
example

However, if there is audio, video,

deo, or
deo
o documentation,
do
doc

then I think that we would be able to

identify those
o search
earch and
a

11

that have some sort of piece of evidence that

would document
th

12

that stop.
THE COURT:

13

All right
right.
ight.
.

I'm
I'
I
' sorry.

15

Thank you,
u, Ms. Iafrate.
Iaf
Iafr

16

MS. WANG:
WANG:

OF

Yes, Your Honor.

Yes

15:44:17

This is Cecillia Wang.

On
phase, as to determine -- identifying
n the
he second
secon
c

17

and then
individuals, or working out other
en
n compensating
compe
compen

19

remedies,
medies
edi , for that matter, we've set out some of the ways that

20

we think we could go about that, doing that.

21

20 and
an 21 on our brief on civil contempt.

22

categories of information that I think would at least be the

ca

IE

ND

18

FR

15:44:02

Please proceed,

TH

Ms. Wang.

EF

OG

10

14

15:43:34

That's at pages

15:44:31

There are certain

2
23

first step on the road to identifying any individual victims of

24

illegal detention contrary to the Court's preliminary

25

injunction order.

15:44:53

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 31 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 31

1
2

THE COURT:

Well, again, without violating any

particular right of any particular specially appearing party -And Chief Warshaw, you can correct me if I'm wrong.

-- but it is my understanding from Chief Warshaw's

s

.C
OM

independent investigations --

15:45:10

And please, again, Chief, correct me if I'm

m wrong.
wrong

-- that they have discovered that, for

r example,
example, the
exampl

practice of removing identification cards, driver

driver's
licenses,
drive
's li

credit cards, was fairly widespread throughout

oughout not
no only the

BO

HSU, but potentially the entire MCSO;

O;
; and that
tha no documentation

11

was made, but the credit cards, the identification

cards, are
ident
identif

12

the things that were sometimes

into bins; sometimes
es thrown
thro
i

13

collected as training devices,

least that's the position
vices
ces,
, at
t l

14

taken by MCSO; sometimes

deposited in drawers; and so it may be
mes deposit
deposi

15

extremely difficult
provide
that information with any kind
lt to provi
rov

16

of exactness.

EF

TH

CHIEF
HIEF WARSHAW:
A

No, Your Honor.

practice,
acti , and they did reposit any number of types of
actice

20

identification in various bins at the police districts, as well

identifica

21

within the facilities of the HSU, so -as wit

wi

FR

THE COURT:

15:46:09

All right.

2
23

CHIEF WARSHAW:

24

THE COURT:

25

15:45:53

That was in fact the

19

22

15:45:31

Chief,
h ef
f, have
v I misstated the facts there?

IE
ND
S

18

OF

17

OG

10

-- the Court is correct.

So you've requested expedited discovery,

Ms. Wang, and I'm inclined to grant it, for the reasons that

15:46:21

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 32 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 32

I've just gone over with you and Ms. Iafrate.

going to separately request that expedited discovery, or are

you content with the expedited discovery that you asked for in
n

your motion?
MS. WANG:

We have a few other categories, Your

ur Honor
Honor,

and I could just briefly summarize them now.

Our intent is if the Court is going to

o set th
the

evidentiary hearing, and -- we would subpoena

ena
na the
th individuals
indi
n

that we have listed as respondents in our

brief,
our intent
ur brief
brie
, and
a

10

would be to issue a subpoena duces tecum

those witnesses, so
ecum to th
t

11

that we make sure we collect any

y documents
document that those

12

individual respondents have that would

be relevant for their
wo

13

testimony.

14

testimony so we have a chance

chan
t review it.
to

15

prior statements that

have
been made regarding these matters.
th
tha
ve b

EF

OG

BO

TH

And we would like

get that in advance of their
ike to
t ge
That would include

OF

interrogatories
MCSO, or the sheriff as the head of MCSO,
to ies
es on MC

18

that would
ould
ul be very targeted at determining certain factual

19

issues
these areas of contempt that have been
sues
ues regarding
regard
egard

20

charged
charged.

ND

IE

FR

15:47:11

17

22

15:46:52

We also
like
to serve very limited
lso would
wou
l

16

21

15:46:35

But are you

.C
OM

15:47:36

And then I think we would work with Ms. Iafrate, I

think our last two -- the outstanding document requests

th

2
23

probably encompass most of what we would like in terms of

24

documents, but we do want the additional information that's

25

aimed at identifying individual victims of illegal detentions.

15:47:53

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 33 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 33

THE COURT:

All right.

Well, then can I ask you to

file in conjunction with your response, or fairly close

thereafter, a thought-through, expedited discovery request?

.C
OM

And I'm going to ask you, Ms. Iafrate, if you have

ve any
a

reason to object to her -- to Ms. Wang doing so, at least

ast
t as a

matter of theory?
MS. IAFRATE:

THE COURT:

question:

No objection, Your Honor.

r.

All right.

Now, Ms. Wang

quick
Wang,
, one other
ot

BO

Are you going to end up calling

on
ing an expert
expe
xp

damages?

And again, I'm just thinking

ing off th
the top of my head;

11

I'm not saying I won't rethink this.

his.
his
.

OG

10

15:48:30

It doesn't seem to me like the vast major -- at least

EF

12

a considerable majority of your cli

clients are going to be able to

14

claim any damages from

from the country if they
m being removed
re
rem

15

didn't have a right

ht to be
e here.
h
he

16

claim for the process

proces of being arrested and detained by

17

somebody who
h had
ha no
o authority to arrest or detain them, but I

18

don't know
no how you value that.

But they do, of course, have a

15:48:46

OF

TH

13

Are you going to call some expert to do that?

ND

19

MS. WANG:
M

20

Your Honor, it's not our intent to call

such a witness.

22

think what we'd like to do is really -- we're proposing a

th

IE

21

FR

15:48:14

15:49:00

At this evidentiary hearing, as I said, I

2
23

bifurcated process where the Court could very expeditiously

24

after the evidentiary hearing make any findings as to whether

25

respondents should be held in contempt.

15:49:20

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 34 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 34

I think that given everything Your Honor has said, and

some of the things we've addressed here, that the process of

identifying individuals make take some time, and the

plaintiffs' position is that we shouldn't delay a finding as

to, you know, liability, so to speak, on contempt; or the

e

Court's referral for any criminal contempt matters should

shoul not
n

be delayed by what may be a long process of identifying

entifying

individuals who have been harmed and determining

mining their
e

compensations.

.C
OM

BO

Ms. Iafrate, do
o you have
ave any comment on

OG

THE COURT:

10
that?

MS. IAFRATE:

12

15:49:56

Your Honor,
hearing about this
Honor, I keep
ke

EF

11

15:49:37

bifurcated process.

My concern
ncern is this: that I think that,

14

whether they help or hurt

me,
hur me
m
, I think that the numbers do

15

matter.

16

if we can find
individuals that were impacted by this
d these ind

17

conduct, I think
that is something that should be
hink
in that
h

18

presented
the Court in the evidentiary hearing, not at a
ted
d to t

19

later
date.
ter
er date
te.

TH

13

15:50:11

ND

OF

And so if
attempting to see if we can determine
f we
w are
e at
a

THE COURT:
T

20

Well, it does strike me, Ms. Wang, that

even if
i we do bifurcate for purposes of liability, my ability

22

to assess whether or not all possible purposes have been served

FR

IE

21

15:50:31

2
23

or fulfilled by civil contempt and whether or not a criminal

24

contempt is then -- referral is then necessary is the extent or

25

lack of extent to which the victims can be identified and be

15:50:53

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 35 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 35

remunerated.
So even a damages hearing is going to play into that,

and I don't want to put that off too long, either.

But I do

want to give you, of course, a necessary and full chance to see

s

what you can find on that point.

.C
OM

15:51:08

Now, the time for this call is running out,

me
t, so
o let
t m

just say that even though it's further away than

an I would like,

I have four days at the end of April: April 21

23, and 24.
21,
, 22, 23

I'm going to put a hold on those days.

BO

And that's
when I
that

intend to at least hold the liability

the damages
ty and maybe
may
mayb

11

hearing, if we can get enough discovery

done for that to
iscovery
scove
d
don

12

happen.

Ms. Wang, does that

you?
at work for
f

13
for you?

MS. WANG:
:

16

THE COURT:
COURT:

Yes,
Honor, that works for plaintiffs.
s, Your
Yo
You

MS.
S IAFRATE:
IAFRAT
IAFRATE

17

THE
HE COURT:
C R

Yes, Your Honor.

All right.

Well, then we're going to hold

18

15:51:44

Ms.
Ms Iafrate?

OF

15

15:51:28

Do those dates work

TH

14

EF

OG

10

those
dates,
ose
se dates
tes, and if we can do liability and damages on those

20

we'll do it; if we can only do liability, we'll do it;

dates, we
dates,

21

if the
th parties can agree with the Court that it makes sense to

22

proceed in some bifurcated fashion, schedule things later.

pr

15:51:54

FR

IE

ND

19

2
23

But I would ask, in light of the matters that I've

24

raised today, that the parties help me think through these

25

things, so that we can proceed in a manner that is efficient,

15:52:12

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 36 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 36

orderly, fair to the parties, and fair to the potential victims

of this matter.
The other thing that I will raise, just to make sure

.C
OM

that it is -- that everybody is aware that it is an issue,

, and
an

it also bears, I think, on the specially appearing parties,

rties
es, it

seems to me that it is likely that Sheriff Arpaio,

Mr. McDonald, is going to be the individual subject

bject of civil
ci
civ

contempt hearings on virtually all the matters

ers that
t
I discuss,

because he is the sheriff of Maricopa County

responsible to
ounty and r

BO

implement the Court's orders.

OG

10

nonparties, the case law suggests

Chief Deputy Sheridan,
gests that
t

13

Chief Sands, Chief MacIntyre,

Sousa, perhaps others,
tyre
re,
, Lieutenant
Lieut

14

are also appropriate topics of

f a civil contempt and even a

15

potential criminal
contempt
l co
tempt
mpt hearing, even as nonparties.

TH

EF

12

15:53:06

And so if the
parties want to comment in their
t
p

OF

16

responses a
as to what
a individuals ought to be named as parties

18

to the contempt
hearing and why, I'll also consider that, but
contemp h

ND
S

17

19

whether
not you discuss it, it is something that the Court
ether
the or no

20

considering.
is conside

15:53:23

Is there any comment to that?

22

MR. McDONALD:

IE

21

FR

15:52:46

But it also seems to me that even

eve though they're

11

2
23

15:52:27

Your Honor, Mel McDonald.

I would have to, I think, spend further time

24

considering this.

One of the things that I've been balancing

25

is I try to be involved, but I realize there's a whole sphere

15:53:41

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 37 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 37

of things that are going in the civil end that I haven't been

anxious to run up the sheriff's personal fees in doing this.

.C
OM

So I guess what I'm suggesting is that I would like to

have an opportunity to confer.

we would probably, at least I would probably want to appear

ea at

those civil contempt hearings, I don't know whether

be
r I will
wi

permitted to participate or not, but I think because

ecause of
o that
t

cloud hanging over the sheriff's head that I would

wou
a least
at

like to be present, and possibly participate,

those
ipate,
ipate
, in
n t

BO

hearings.
THE COURT:

11

OG

10

There's a good likelihood that

ha

13

researched it.
MR. McDONALD:
:

15

THE COURT:
T:

Okay.
Okay
kay.

TH

14

EF

make your position known on that on

thought and
once you've
y

Anything
else that anybody has to raise on
Anythin
thi

OF

MR.
BIRNBAUM:
R BIRNBAUM
BIRNBA

Your Honor, this is Gary Birnbaum for

Jack MacIntyre.
acIntyre
cIntyre

Your Honor, I think you know that there's a very

EN
D

19

significant difference in many, many respects, including

significan

21

responsibility for paying lawyers, between the civil contempt

respon
respo

22

proceedings and the criminal, the possibility of criminal

pr

2
23

referral.

24

ask the Court to consider this.

RI

20

25

15:54:38

this hearing?

17
18

15:54:29

Well, I'll certainly allow you to brief or

12

16

15:54:06

15:54:52

I don't know exactly how to do this, but I'd like to

As to Mr. MacIntyre -- and I speak only for

15:55:12

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 38 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 38

Mr. MacIntyre -- it seems to me, based even upon the submittals

that are now before the Court, that it is difficult for anyone

to suggest that a criminal contempt proceeding against

Mr. MacIntyre is appropriate or warranted or possible under

er the
t

existing case law standards.

.C
OM

15:55:44

If the Court were to advise us that Mr. MacIntyre

was
acIntyre wa

not a subject of criminal contempt consideration,

on,
on
, then

Ms. Iafrate, or others who are handling the civil

civi contempt
cont
o

matters, can in fact handle them, and handle

andle them for Chief

BO

MacIntyre as well.

As we sit here today

an individual
today,
, we
e have
h

11

who is forced to hire separate counsel

ounsel out
ou of his own pocket

12

for a criminal contempt possibility

ibility that
tha we really do not

13

believe applies to him.

So we would ask the Court

on the record that's now
Cou
Co

TH

14

before you to essentially

Mr. MacIntyre and his counsel
en
enti
lly
y advise
ad
a

16

that criminal contempt

is not a matter that would apply to him,
contem
i

17

and then Ms.

s Iafrate
Iafrat can proceed to represent Chief MacIntyre

18

in connection
nection
ction with
t the civil proceeding.

I'm clear in that request, Your Honor.

I hope
ho

ND

19

THE COURT:
T

20

Well, you know, let me say we're going to

call, because we only reserved it for an hour, in

lose this
t

22

about four minutes.

ab

IE

21

FR

15:56:38

OF

15

15:57:07

We can recall after -- if we take a break,

2
23

but I don't think we really need to.

24

Mr. Birnbaum.

25

15:56:15

EF

OG

10

Let me respond,

I understand what you're saying, and I don't want to

15:57:23

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 39 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 39

hold anybody in here longer than is necessary.

But I also

don't want to make adjudications without knowing the facts.

Let me tell you the two things that cause me concern, and I

don't know what might cause Ms. Wang concern.

.C
OM

Your client was already identified as the point

int of

contact for discovery at least for some purposes in

n this

lawsuit.

previously the MCSO was sanctioned based largely

argely
rgely on his
hi

inaction.

BO

It was based on his affidavit that he

e was held --

Because discovery, to me, the failure

failur to respond to

OG

10

discovery is a real live issue, and as

a far
fa -- and I don't know

12

that your client was responsible

the specific discovery at
ible for
fo th

13

issue, but I do know that

for some
t he was
wa responsible
re

14

discovery, based on his

and now we have what
is own
wn affidavit,
affi
ff

15

appears to at least
potentially
be a great deal of information
st p
tentia
nti

16

that was never

discovered or never turned over.
r discovere
disco

TH

OF

15:58:14

I'm hesitant
at this point to say that I would not say
hesita

17

that the
with which that may or may not have been
he intention
inten
nten

19

turned
rned
ned over
ver is
i at this point something that I can affirmatively

20

discount as meeting the criminal standard, although I do

21

acknowledge, as you've suggested, it is a very high bar.

acknow
ackno

IE

ND

18

FR

15:57:54

EF

11

22

15:57:38

15:58:32

Also, your client was noticed as somebody receiving --

2
23

he's in some sort of a command position at MCSO, and he did

24

receive the notice, and I don't think it's contested from

25

Mr. Casey, about the preliminary injunction.

15:58:56

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 40 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 40

Now, I understand that he says he had no

1
2

responsibility to communicate that.

true; it's something I don't know.

to the extent that you may wish to, with your client, go to

Ms. Wang and persuade her that the evidence simply isn't
t there,
there

I would be real happy to let your client out early or to figure

figu
igu

out a way that we could expeditiously limit his

and
s expense a

exposure.

.C
OM

Your Honor, may I make one

on very brief

11

THE COURT:

12

MR. BIRNBAUM:

OG

comment?

I do understand
what you just said, but
unders

14

misunderstanding.

TH

with all due respect, I believe

it's
lieve it
it'
' based on a factual

Mr. MacIntyre
responsible for discovery
nt
ntyr
was
as not
n
responses.

He
charged with failing to respond to
e is no
not ch

17

discovery.

Mr.
MacIntyre
did receive a letter about
Mr
r. MacIn
c

18

instituting
uting
ting the
th electronic discovery hold, and that's where he

ND
S

19

responded
sponded and said:

20

I was supposed to.

or propriety
proprie

IE

FR

22

15:59:41

OF

16

21

15:59:31

It will have
brief.
e to be bri
b

13

15

15:59:12

EF

10

I am certainly receptive,

BO

Mr. BIRNBAUM:

That may or may not be

THE COURT:

Mr. Birnbaum.
Mr

I did not disseminate that with the speed

16:00:07

Well, let me just interrupt you,

To the extent that that is true -- and I

2
23

recognize that it may be true; I'm certainly open to being

24

persuaded that that's true -- and if that's true, you can file

25

whatever proof you'd like with me if you're not persuaded by --

16:00:22

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 41 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 41

if you can't persuade Ms. Wang, and if I determine there's no

basis for criminal contempt based upon it, I'll let you out.

Very good.

Thank you very much, Your

.C
OM

MR. BIRNBAUM:

3
Honor.

THE COURT:

Does anybody else have anything they have to say?

sa ?
say

MS. IAFRATE:

MS. WANG:

MR. BIRNBAUM:

I think our time limit

up.
t is
i up
p.

No, Your Honor.

BO

No, Your Honor.

I do appreciate
appearing
e the parties
parti
part

telephonically.

I think it's been

conference for
en a productive
produc
od

12

moving forward.

Thank you very

much.
ery much
muc
.

EF

11

13

MR. McDONALD:

14

MS. IAFRATE:

15

(Proceedings
concluded
at 4:01 p.m.)
in
ing
conclu
ncl

18

20

IE

21

FR

22
2
23
24
25

Thank
ank you
you,
, Your Honor.

Your Honor.
Thank you,
Than
yo
o

TH

ND

19

OF

17

16

16:00:36

No, Your Honor, not from

m plaintiff.
plainti
plaintiff

OG

THE COURT:

10

All right.

16:00:49

Case 2:07-cv-02513-GMS Document 858 Filed 01/16/15 Page 42 of 42

CV07-2513, Melendres v. Arpaio, 1/15/15 Status Conference 42

1
C E R T I F I C A T E

.C
OM

3
4
5

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

dul

appointed and qualified to act as Official Court Reporter

for
Repor
p

the United States District Court for the

e District of Arizona.

BO

I FURTHER CERTIFY that the foregoing pages constitute

OG

10

a full, true, and accurate transcript

all of that portion of
script
cript of
f al

12

the proceedings contained herein,

in the above-entitled
rein, had
rein
h
i

13

cause on the date specified

ied
d therein,
therein and that said transcript

14

was prepared under my

y direction and control.

TH

EF

11

16

DATED
Arizona, this 16th day of January,
A ED
D at Phoenix,
P
Pho

17
2015.

ND

19

18

OF

15

20

IE

21

FR

22
2
23
24
25

s/Gary Moll