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DISTRICT OF ARIZONA
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No. 07-cv-02513-PHX-GMS
Plaintiffs,
RESPONSE TO THE COURTS
NOVEMBER 18 ORDER [DOC. 1566]
vs.
Joseph M. Arpaio, in his individual and
office capacity as Sheriff of Maricopa
County, Arizona; et al.
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Defendants.
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address issues raised by the Court in its November 18, 2015 Order (Doc. 1566). Each
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responding.
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1.
Chief Sands objects to the use of arguments and authorities that were not
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made in Plaintiffs briefing but instead raised for the first time at oral argument, at least
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insofar as they are considered against him. He does not object to their use against
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Defendants and the other alleged contemnors, who joined his motion the evening before
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closing arguments. (See Doc. 1569.) Should such arguments and authorities be considered
4839-1661-3675.1
against him, Chief Sands believes he should have the opportunity to respond to them after
2.
Chief Sands does not object to the Courts reliance on filings submitted since
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the Courts Order to Show Cause on February 12, 2015, so long as they are considered for
against Chief Sands representations made by other parties representatives for the truth of
the matters they assert. See Fed. R. Evid. 801 & 802. Chief Sands further objects to the
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use of filings or representations made at hearings before the Courts Order to Show Cause
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made him a party to these contempt proceedings. He has not been given notice of which
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representations, if any, are intended to be used against him as evidence, and thus has not
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their merit, or present explanatory evidence to place them in the appropriate context. He
has also not had the opportunity to determine their admissibility.
3.
Chief Sands takes no position on the issue of what basis, if any, there is for
continuing to hold the materials specified in paragraph 3 of the Order under seal.
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4.
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regarding IA investigation reports. Nor does Chief Sands object to the use of the IA
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reports for the purposes of evaluating the adequacy of the MCSOs IA investigation
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process. However, in light some of the questions asked by the Court during closing
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arguments on November 20, 2015 (see Contempt Hrg Tr. 4729:17-23; 4729:1-2; 4729:4-
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to his name-clearing hearing, Chief Sands wants to ensure that the out-of-court assertions
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made in those and other IA investigation documents are not being considered as evidence
against Chief Sands for the truth of the matters they assert. He thus objects to their use for
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Chief Sands believes Plaintiffs, who bear the burden of proof, are more
of persons that may have been impacted by the MCSOs violation of the Courts
preliminary injunction and the different ways in which they may have been impacted.
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6.
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8.
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not concern the alleged grounds for contempt against him, and thus defers to other parties
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11.
Chief Sands objects to negative inferences being drawn against him for
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evidence may not be drawn against a party that has not destroyed evidence and is not
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responsible for the loss of evidence. Lundquist v. United States, 1997 U.S. App. LEXIS
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16204, *6 (9th Cir. 1997) (holding the district court erred in drawing an adverse inference
against a defendant that neither destroyed the [evidence] nor was responsible for their
loss.). There is no evidence that Chief Sands destroyed evidence or that he was
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responsible for handling MCSOs response to document preservation letters and discovery
requests. In fact, the evidence shows otherwise. See, e.g., Aff. Jack MacIntyre, Dec. 10,
The use of adverse inference must be justified by one of the rationales for their use:
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Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991). The Ninth Circuit held that the
trial courts adverse inferences were drawn in error where neither rationale applied. Id.
The evidentiary rationale does not support an adverse inference against Chief Sands
for the same reasons it did not in Akiona. Just as in that case nothing in the record
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indicate[d] that the [defendant] destroyed the [relevant evidence] in response to [the
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Akiona] litigation, id., nothing in the record here indicates that Chief Sands destroyed
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relevant evidence in response to the Melendres litigation, or even at all. The evidence was
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not threatening to Chief Sands, as he was not a party to the underlying action and was not
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4839-1661-3675.1
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Likewise, the deterrence rationale does not support an adverse inference against
Chief Sands. Punishing a person for a failure for which he was not responsible would not
further any sort of deterrent purpose, particularly when applied to a separate claim against
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a separate party years after the entry of a final judgment on the merits.
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not concern the alleged grounds for contempt against him, and thus defers to other parties
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not concern the alleged grounds for contempt against him, and thus defers to other parties
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14.
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not concern the alleged grounds for contempt against him, and thus defers to other parties
to provide the requested information.
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not concern the alleged grounds for contempt against him, and thus defers to other parties
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4839-1661-3675.1
CERTIFICATE OF SERVICE
/s/
Dane A. Dodd
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4839-1661-3675.1