Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB

8/20/2019 Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus OrtegaMelendres, et al.,

Plaintiffs,

vs.

Joseph M. Arpaio, et al.,

Defendants.

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SEALED PROCEEDINGS

CV 07-2513-PHX-GMS

Phoenix, Arizona

August 7, 2014

10:04 a.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Telephonic Conference)

Court Reporter: Gary Moll

401 W. Washington Street, SPC #38

Phoenix, Arizona 85003(602) 322-7263

Proceedings taken by stenographic court reporterTranscript prepared by computer-aided transcription

Case 2:07-cv-02513-GMS Document 735 Filed 08/11/14 Page 1 of 30


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SEALED PROCEEDINGS, CV07-2513, Melendres v. Arpaio, 8/7/14 2

A P P E A R A N C E S

For the Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES UNION

FOUNDATIONImmigrants' Rights Project39 Drumm Street

San Francisco, California 94111(415) 343-0775

Andre Segura, Esq.

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street, 18th FloorNew York, New York 10004(212) 549-2676

Jorge M. Castillo, Esq.MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUNDRegional Counsel

634 S. Spring Street11th Floor

Los Angeles, California 90014

(213) 629-2512, Ext. 121

For the Defendants: Timothy J. Casey, Esq.

James L. Williams, Esq.SCHMITT, SCHNECK, SMYTH,

CASEY & EVEN, P.C.1221 E. Osborn Road

Suite 105

Phoenix, Arizona 85014-5540(602) 277-7000

Thomas P. Liddy, Esq.

Senior Litigation Counsel

MARICOPA COUNTY ATTORNEY'S OFFICECivil Services Division

222 N. Central AvenueSuite 1100

Phoenix, Arizona 85004

(602) 506-8066



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P R O C E E D I N G S

THE CLERK: This is civil case number 07-2513,

Melendres v. Arpaio, on for telephonic conference.

Counsel, please announce your appearances.

MS. WANG: Good morning, Judge Snow. This is Cecillia

Wang from the ACLU for the plaintiffs. I also have on the

phone with me my co-counsel, Andre Segura, also with the ACLU,

and Jorge Castillo of MALDEF, but I'll be addressing the Court

today.

THE COURT: All right.

MR. WILLIAMS: Good morning, Your Honor. James

Williams on behalf of the defendants. Also with me is Tim

Casey and Tom Liddy.

And we also have client representative Steve Bailey,

who was not here when we first gave the Court our appearances,

with MCSO's Internal Affairs division, and then also Christine

Stutz and Vanessa Losicco from the Maricopa County Attorney's

Office, who are appearing -- or not making appearances.

They're here as client representatives, not as counsel.

MONITOR WARSHAW: Good morning, Judge. Bob Warshaw.

I also have with me Deputy Monitor John Girvin and Deputy

Monitor Raul Martinez.

THE COURT: Good morning. Good morning to you all.

Let me address an initial matter. As in this hearing



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I may inquire into matters that I'm not going to require

disclosure for, I suggest that we hold this hearing initially

under seal, as it may involve particulars of ongoing police

investigations.

If I hold it under seal, then I want every participant

who is on the line to realize that they are not free to discuss

it, regardless of the fact that they are present, outside of

this hearing, except for among themselves.

I do and would authorize each party to obtain a

transcript of this hearing without further authorization of the

Court, but that doesn't mean that you can discuss the hearing

publicly unless and until I take off the seal.

Does anybody object to us going under seal?

MR. WILLIAMS: Defendants do not object, Your Honor.

MS. WANG: No objection from plaintiffs, Your Honor.

THE COURT: All right. Then I have looked at the -- I

have reviewed the letters that I have been sent by the parties.

I appreciate that.

I take it, Mr. Williams, you're arguing on behalf of

the defendants, or you're going to be speaking on behalf of the

defendants today?

MR. WILLIAMS: That's correct, Your Honor.

THE COURT: I've looked at your letter and the basis

for which you have asserted privilege, on which you've asserted

privilege, and it seems to me, essentially, that E and F



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provide no basis for privilege, unless you're going to tell me

that you have pending appeals or disciplinary actions against

any particular MCSO employee or officer.

Are there any such ongoing appeals or disciplinary

actions?

MR. WILLIAMS: Your Honor, I think that the challenge

with that is that the disciplinary action begins with the

investigation. There are no ongoing appeals that I'm aware of

with regard to this issue, but we would certainly contend that

the ongoing investigation, that there is a very large one of

those going on to which that would apply.

THE COURT: Well, let me just tell you, Mr. Williams,

have you identified any particular officers that are subject to

disciplinary action as a result of any of the investigations?

MR. WILLIAMS: And Your Honor, if I may, on some of

these questions I may allow Steve Bailey, who's here next to

me, because he can provide a greater level of detail on those,

since we're under seal, so --

THE COURT: Well, I guess I don't have any objection

to Mr. Bailey -- or is it Captain Bailey?

CAPTAIN BAILEY: Yes, Your Honor.

THE COURT: All right. I don't have any objection to

his participation, except for I guess I want to direct the

dance. And so I'm asking you first, Mr. Williams, have there

been any officers that are designated as being subjected to



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disciplinary action as a result of any of the material sought

by the plaintiff in this action?

MR. WILLIAMS: Your Honor, let me just -- we have sent

out a number of notices to that respect, and we certainly have

targets in that respect, so there are -- and again, I probably

have to left Captain Bailey put a little bit finer point on

that, but I think the answer is that we are -- we are on that

road, Your Honor.

THE COURT: Well, you may be on the road, but again, I

want to be very specific: Have you identified any ongoing

disciplinary actions against any MCSO officer as a result of

the investigations?

CAPTAIN BAILEY: Your Honor, this is Captain Bailey.

THE COURT: You know, Captain Bailey, again, I welcome

your participation, but I do want you to know that to the

extent you provide clarification, I am going to allow Ms. Wang

to seek clarification of what you say, just so you're aware,

okay?

MR. WILLIAMS: Yes, Your Honor. I'm sorry, we had the

phone on mute.

THE COURT: Okay. Go ahead, Captain Bailey.

CAPTAIN BAILEY: Nobody has been noticed as a

principal as a result of the ongoing investigation. However,

there have been several employees observed during what would

have been discipline for Deputy Armendariz.



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As a result of the interviews, I have a clearer idea

of their participation and their knowledge, which certainly

could result in discipline in the future.

THE COURT: Well, but you are not in a position, as I

understand it, Captain Bailey, to determine that with respect

to any particular officer at this point?

CAPTAIN BAILEY: No, Your Honor, not at the point we

are in the investigation now.

THE COURT: All right. In that sense, then --

Well, Ms. Wang, do you have any follow-up?

MS. WANG: No, Your Honor. I think it's -- well, I

would ask Captain Bailey just to confirm that they currently

don't have any ongoing disciplinary action against any

particular MCSO deputy.

With that clarification, I think that the Court has

already understood plaintiffs' position, which is that A.R.S.

38-1101E and F don't apply at all, because there is no pending

proceeding, much less an appeal, against any MCSO deputy. The

fact that MCSO has said that there may be some action taken in

the future certainly doesn't extend the privilege under the

statute to documents that we've been seeking now.

THE COURT: All right. And Mr. Williams, that is my

ruling. Unless and until a specific disciplinary action has

been identified and is being pursued, A.R.S. 38-1101E and F are

not applicable. That does not mean that L -- well, I want to



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take a look at L, and I also want to look at A.R.S. 39-121,

which says, "Public records and other matters in the custody of

any officer shall be open to inspection by any person at all

times during office hours." So keep that in mind.

L, it seems to me, "An employer shall not include in

that portion of the personnel file of a law enforcement officer

or probation officer that is available for public inspection

and copying any information about an investigation until the

investigation is complete or the employer has discontinued the

investigation."

Well, it seems to me that to the extent that the

plaintiff has asked for personnel files of law enforcement

officers, that particular section of the statute may remain

applicable. And it also strikes me that we could discuss

confidentiality obligations that pertain to the plaintiffs as a

method of overcoming that, but I do want to ask some

more questions so I can identify on a matter-by-matter basis

and appropriately protect the defendant's interests while

allowing the plaintiffs appropriate access.

Evidence, records, and videos seized from the

Armendariz home seem to me to be material that is in the

custody of any officer. It doesn't seem to be precluded by

A.R.S. 38-1101E or F, and because it does not relate to the

portion of a personnel file of a law enforcement officer, it

doesn't seem to me, Mr. Williams, that you asserted a basis for



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privilege. Do you have --

MR. WILLIAMS: Your Honor, I believe the definition of

the investigative file under 38-1101 is much broader than that

and includes anything attached to that investigation, and

that's the problem that we have, Your Honor.

THE COURT: No, no, no, no. Let's go back and focus

on the language of the statute, please, Mr. Williams. We're

looking only at 38-1101L and it talks about a personnel file;

it doesn't talk about an investigative file. Or do I misread

the statute?

MR. WILLIAMS: It does also mention, Your Honor, any

information about an investigation.

THE COURT: That's fine. But we're talking about a

personnel file. And the request I'm talking about right now is

evidence, records, and videos seized from the Armendariz home.

That's not a personnel file. That's the --

MR. WILLIAMS: And Your Honor, I'm sorry. L also

mentions copying any information about an investigation, and

that -- that would be our position is that for the same reason,

that evidence is now information --

THE COURT: Well, I've got L in front of me. You tell

me where it says copying any information about an

investigation.

MR. WILLIAMS: "... probation officer that is

available for public inspection and copying any information



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about an investigation until the investigation is complete..."

THE COURT: Yeah, that's from the personnel file,

though. That's information contained in the personnel file.

It doesn't -- it does not, as I read the statute, apply to --

generically to investigations, and so I don't think that you

have satisfied me that you have demonstrated any privilege in

the evidence, records, and videos seized from the Armendariz's

home.

MR. WILLIAMS: Your Honor, as a practical matter, that

information would be in the investigative file; it would not be

in the personnel file.

THE COURT: I understand that. Can you show me where

you've got any privilege that it would apply to that

investigative file?

MR. WILLIAMS: I believe, Your Honor, we're having a

different reading of L. I believe I'm reading L as having

essentially two parts and Your Honor is reading it,

understandably, different to have the second part subsumed into

the first part of the personnel file.

But the way that -- that I read L: An employer shall

not include in that portion of the personnel file of a law

enforcement officer that is available for public inspection and

copying any information about his investigation. I think it's

intended to cover both topics.

THE COURT: I understand your reading and I don't



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agree with it. I don't think it's correctly read. Of

course -- I guess my understanding counts, is the one that

counts for immediate purposes.

However, I do believe that it does make sense to have

some confidentiality obligation on plaintiffs. To the extent

that you believe that you can -- or that any information that

they might disclose would damage your investigation, I don't

want to do that, and maybe we can ask an assessment from Chief

Warshaw about where the investigation actually stands. But he

does keep me pretty well posted, and it was my impression that

the investigation in this respect, and I realize there are many

things to investigate, has not moved very far.

And so it is not my intention to just simply require

the plaintiffs to wait until you determine that you're going to

undertake all aspects of the investigation which may be of some

interest to them.

As I understand it from your letter, Ms. Wang,

plaintiffs are interested in discovering the material actually

revealed so that they can use it in the defense of this Court's

order to the extent that I have placed certain things in my

injunction and you believe that the investigation reveals

things that are relevant to the applicability of such an order.

Do you desire it for any other purpose at this point?

MS. WANG: No, Your Honor. Of course, plaintiffs are

seeking all these categories of documents in order to represent



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the plaintiff class in making sure that the defendants are

complying with this Court's previous orders.

And I would also point out that defendants are

currently contesting provisions of this Court's orders, and

particularly the trial rulings and the Court's supplemental

injunction from October of last year on appeal in the Ninth

Circuit. And the little that we have seen so far from the

documents that defendants have produced to us demonstrates that

there is certainly evidence to support this Court's prior

orders, and that would refute the position that the defendants

have taken on appeal, for example.

So that's our position, that the documents are

directly relevant to the subject matter of this litigation and

to protecting the interests of the plaintiff class and

protecting the plaintiff class from further violations of their

constitutional rights.

One other note I just wanted to make, Your Honor, and

I understand you've ruled already, on the privilege asserted by

the defendants based on 38-1101, with regard to subsection L,

plaintiffs are not relying on any rights under Arizona's public

records law. Primarily, we're relying on the ongoing

litigation and the Court's prior orders and injunctions.

And so I think that I agree with the Court's reading

of subsection L as not conferring any privilege in any event,

but I'd also point out that we don't stand in the position of



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the public trying to gain access to any of these records.

THE COURT: Let me float this for proposal.

It would be my proposal that if, for present purposes,

Ms. Wang wants it for purposes of defending the order and

appeal and purposes of this action, that the plaintiffs be

restricted from any other use, but they be entitled to complete

access to the records and videos seized from the Armendariz

home. And before they can use it for any other purpose, they

have to seek authorization from the MCSO or from this Court.

Any problem with that order?

MS. WANG: No, Your Honor, not from plaintiffs.

MR. WILLIAMS: Your Honor, from defendants'

standpoint, we do have an issue with them using it as a basis

for the appeal, as the record for the appeal would seem to be

closed.

THE COURT: Well, let me ask you, Mr. Williams, it

seems to me that plaintiffs have suggested, and it seems to me,

by my recollection, which isn't always fault free, that among

other things, plaintiffs requested prior to trial copies of any

videos or recordings made of any traffic stops. And it

certainly seems to me that the Armendariz investigation has

uncovered a great number of recordings, both video and audio,

that existed that were not disclosed. Am I correct --

MR. WILLIAMS: And, Your Honor that's -- I apologize.

THE COURT: Am I correct about that?



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MR. WILLIAMS: Well, Your Honor, that's an important

point of clarity. Those HSU videos are not part of what is

being disputed here. Those have been disclosed to Ms. Wang

under the protective order that -- that Your Honor issued.

THE COURT: I'm not talking about HSU videos; I'm

talking about Armendariz videos.

Have you matched them up to know that they weren't

videos made during the pendency of this lawsuit?

MR. WILLIAMS: I believe they are after, Your Honor,

but I would be uncomfortable making that representation

affirmatively to the Court, I'm not certain.

THE COURT: Well, have you even looked at all the

videos?

MR. WILLIAMS: Have I personally, or --

THE COURT: No, no, I don't mean you personally; I

meant the MCSO. Thank you for the clarification.

MR. WILLIAMS: They have completed, as I understand,

the initial review of all the videos to determine which videos

are potentially problematic, and then those videos that have

been identified as potentially problematic are being reviewed

by a group of lieutenants.

THE COURT: Have they dated the videos? Have they

matched the videos up to victims, and have they done the

Hispanic surname search that we had discussed earlier?

CAPTAIN BAILEY: No, Your Honor. We are still merging



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all the spreadsheets. We need all the data that we could --

THE COURT: Is that Captain Bailey? Is this

Captain Bailey?

CAPTAIN BAILEY: Yes, Your Honor, I'm sorry.

THE COURT: That's all right. If you'd just identify

yourself prior to speaking, because since you're not here, the

court reporter can't know unless you identify yourself.

CAPTAIN BAILEY: Yes, sir. Currently, we are merging

a number of spreadsheets together that is a collection of data

from every aspect that we could identify. There was 394 videos

that we deemed potentially problematic, and there is 10 to 12

lieutenants currently looking at those 394 videos so we can

identify serious issues if they in fact exist.

THE COURT: Well, let me just tell you how I

understand things, and I appreciate and I'm not suggesting that

you're operating in anything other than good faith,

Captain Bailey, but if you identified -- when you say 394

videos, do you mean 394 actual stops that have been videotaped,

or do you mean 394 of the 500 some-odd videos that have on them

one or more stops that are problematic?

CAPTAIN BAILEY: They are 394 clips that show both

traffic stops and potentially enforcement actions, depending on

how the camera was operated at the time. But those 394 come

from the reviews of hundreds of other videos that we have

separated out for further investigation by the Professional



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Standards Bureau.

THE COURT: All right. And again, without calling

into question your good faith, I do believe that Ms. Wang might

not necessarily share the assessment of the Maricopa County

Sheriff's about the number of those videos that demonstrate

problematic behavior. I'm not saying that she wouldn't; she

may well. But I believe that she's entitled to look if she

wants to spend the time reviewing them.

Can you tell me why she wouldn't be?

CAPTAIN BAILEY: Your Honor, are you asking me? This

is Captain Bailey.

THE COURT: No, I'm asking Mr. Williams. But thank

you for the clarification, Captain Bailey. I don't think it

was a fair question to be asking you.

MR. WILLIAMS: Your Honor, I think we've stated our

basis and you disagreed with it as to why she shouldn't be

allowed to look at them. I think our concern is an

interference with the ongoing investigation --

THE COURT: That's correct, and I understand that.

And let me ask you, Mr. Williams, my proposal is, again, that

Ms. Wang can use whatever she finds for purposes only of this

lawsuit and/or the arguments on appeal, and that if she

discloses any information, publicly or otherwise, she'll be in

violation of my order.

MR. WILLIAMS: And one concern, Your Honor, with



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respect to the filing on the --

THE COURT: I guess before I let you go, and I will

let you speak, Mr. Williams, but do you have any concern about

an order entered to that effect in terms of doing what I can do

to preserve the integrity of your investigation?

MR. WILLIAMS: I do have concerns, Your Honor, if

she's able to file any of those records as a matter of public

record either with this Court or with the Ninth Circuit.

THE COURT: I understand that concern.

Ms. Wang, before you file any other records as an

exhibit, you'll need to seek authorization of the Court.

MS. WANG: Understood, Your Honor.

MR. CASEY: And will that be -- Your Honor, this is

Tim Casey. Will that be included in your order, that

particular provision? Because that is a significant concern is

it's one thing for plaintiff to be able to look at the

documents or look at the videos and make their own assessment;

it's another thing for it to go on the public record, because

we need to preserve the integrity of what investigations are

ongoing. And we also want to make sure if there are

quote-unquote victims, that they're not in the public record

before we can address them and meet with them.

THE COURT: Well, how about I revise it this way,

Mr. Casey? It may well be -- I don't want to have to decide

tons of things that you both agree on can go in the public



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record. So I will be glad to enter in my order that if

Ms. Wang wants to put any of the exhibit -- actual exhibits or

evidence in the -- copies of them in the public record, that to

the extent she cannot obtain your approval, she get an order of

the Court authorizing it first.

MR. CASEY: That is agreeable, Your Honor.

THE COURT: All right. Request number 4, records of

interviews of MCSO personnel relating to the Armendariz

investigation. Well, I take it that the Armendariz

investigation itself is ongoing.

MR. WILLIAMS: That is correct, Your Honor.

THE COURT: Is there any investigations that have been

opened, and I think you've already answered this, with respect

to any other officers that have been identified, other than

Deputy Armendariz?

MR. WILLIAMS: Not at this time, Your Honor, although,

again, we express our disagreement with how the line's being

drawn, but we understand your ruling so far.

THE COURT: All right. My ruling will be the same

with respect to records of interviews with the MCSO personnel

relating to the Armendariz investigation. That is, Ms. Wang

may review those records, but she may not attach them or

otherwise use them, absent the authorization of MCSO, in a

public filing without order of the Court.

Now, documents relating to one division level



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investigation of Deputy Armendariz, IA2014-0142. Is this

investigation complete?

MR. WILLIAMS: Your Honor, this is an interesting one.

That particular investigation is complete. The problem with

that investigation is that the nature of the investigation, and

I can only disclose this because we're under seal, raises

concerns about how that investigation was conducted with

respect to the deputies involved in that.

And so actually that is -- and that issue was raised

with the monitor earlier this week because it is of series

concern to the IA division as to how that investigation was

completed, which raises concerns about, frankly, whether there

was any involvement between those who conducted that

investigation and Deputy Armendariz' conduct.

We had a very difficult time getting that division

investigation file back from the division. When we got it back

we were concerned, to say the least, about how it was

conducted. And so that is the nature of that particular

investigation.

THE COURT: All right. And let me just say, I

appreciate the presence of the monitor staff on this call, and

if they're -- if they have concerns about any of my rulings, I

just invite them to speak up and identify themselves, or if

they have information that they think would be helpful to the

Court in making its rulings, I similarly invite them to speak



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up.

But it seems to me, Mr. Williams, and I appreciate

your candor and the willingness of the Sheriff's Office to

investigate the adequacy of their own Internal Affairs

investigations, but it seems to me that that might go to the

very heart of matters in which Ms. Wang would be interested.

So to the extent that she wants the investigation

itself, I don't think there's any privilege that would withhold

it. It's not an ongoing investigation. So the investigation

itself, there is no privilege that attaches. There may be --

to the extent there is a new investigation about the adequacy

of that investigation, there may be other issues, but I don't

see any issue with her receiving the actual concluded

investigation of Deputy Armendariz, and so I'm going to let her

have that. And it seems that is a public document because

there is no longer any ongoing investigation, and so I'm not

going to make that subject to the protective order.

Any concerns about that?

MR. WILLIAMS: Yes, Your Honor. We have the same

concerns that we've expressed before, but we understand your

Court's -- the Court's decision on it.

THE COURT: All right. Thank you.

MR. WILLIAMS: We think it runs substantial risk of

interfering with the very investigation that we're trying to

conduct, but we will, of course, abide by the Court's order.



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THE COURT: I appreciate it, Mr. Williams.

Does the monitor have -- does the monitor share any of

those concerns?

MONITOR WARSHAW: No, Your Honor. I concur with the

Court's views on that issue.

THE COURT: All right. Personnel records and

performance evaluations of any other MCSO personnel under

investigation as a result of the Armendariz matter and records

of complaints against such MCSO personnel.

Well, it seems to me that to the extent no such

persons have presently been identified, there is no response to

that request. Is that a fair summation, or have I misread your

request, Ms. Wang?

MS. WANG: No, you have not misread it, Your Honor.

And I would also note that this subject was addressed

by one of plaintiffs' requests for production during discovery

in the case as well, we did ask for records of citizen

complaints, so I think that would cover some of these

materials.

THE COURT: All right. Well, I'm going to say that to

the extent any materials were requested by the plaintiff in the

underlying litigation before trial that were not disclosed but

you have subsequently discovered material that is responsive,

it just has to be disclosed, totally -- totally regardless of

any privilege asserted now. So --



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MS. WANG: Thank you, Your Honor.

THE COURT: -- what's left of request number 8, other

than records of complaints against MCSO personnel?

The problem we have here, Ms. Wang, as I've said, is

there are no MCSO personnel under investigation as yet as a

result of the Armendariz matter, or have I misstated that,

Mr. Williams?

MR. WILLIAMS: It's correct within the way the Court

has drawn the line, that's correct.

Again, we will contend that they were under

investigation and that the statute covers that status as well.

THE COURT: All right. Now, at such point that any

may become subject to such an investigation, I believe that you

may want to disclose that to Ms. Wang.

But Ms. Wang, when he does do that, it does seem to me

that 38-1101L then kicks in and you're entitled to their

personnel file, but you're not entitled to their personnel file

including any materials that pertain to the investigation.

Is that clear?

MS. WANG: I think so, Your Honor. I take it that if

circumstances change at any point and a deputy is actually the

subject of an administrative disciplinary proceeding, we'll

expect defendants to inform us and inform the Court and the

monitor, and then we could take the necessary steps to, you

know, make sure that any privilege that then does get triggered



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will apply to documents.

THE COURT: All right.

MS. WANG: But that's understood.

THE COURT: Any concern about that request and that

ruling on that request?

MR. WILLIAMS: Other than our previous objections,

Your Honor, no.

THE COURT: Well, you've won that one, Mr. Williams.

MR. WILLIAMS: I mean in the interim is my problem,

Your Honor.

THE COURT: All right. Fair enough.

MCSO Internal Affairs spreadsheet summarizing

video recordings seized from Deputy Armendariz's home.

MR. WILLIAMS: Your Honor, if I may, those constitute

the very heart of the MCSO's investigation into this matter.

And more importantly, perhaps, they are works in process, and

they change as evidence is obtained, is analyzed. They include

investigatory conclusions that would be completely unfair not

only for the MCSO to be held to in the meantime, but even

worse, if they were somehow disseminated. But in any event,

that is at the very heart of what we -- what we are concerned

about with regard to the investigatory file.

I should also say those, along with numerous other

documents, are provided to the monitor on a regular basis. The

monitor is intimately involved in the investigation and sets



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tasks and time lines and has almost daily contact with IA in

that respect. So it's not as if that is being conducted in the

dark.

In addition, potential witnesses and victims are

identified in those spreadsheets who have not yet been

interviewed or contacted. That is certainly at the very heart

of our concern.

THE COURT: Mr. Warshaw, do you have any comment to

make with respect to those spreadsheets?

MONITOR WARSHAW: Yes, Your Honor. Mr. Williams is

correct, we do get those on a regularized basis, and those are

the subject of a consultative process. But based on the

restrictions that the Court has placed on the plaintiffs

relevant to the other matters that have already been discussed,

I personally do not see how it would be an investigative

compromise if that material was shown to the plaintiffs with

the same provisions that the Court has determined relevant to

the other matters.

THE COURT: I believe that is going to be my ruling.

I do appreciate the good faith of the MCSO. I don't want to

impair their good faith investigation. But certainly to the

extent they've identified 394 stops that may be problematic, I

think Ms. Wang's entitled to look at why and what and the

specification of why they are problematic, and certainly to

explore whether or not the stops involved members of the



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plaintiff class.

And so subject to the same restrictions, I'm going to

make the same order. And it seems to me that that would apply

to the last area that wasn't included in Ms. Wang's letter but

subsequently raised by e-mail, which is the monitor's reports.

Any other matters to be raised in this conference

call?

MS. WANG: Your Honor, just one, which I subsequently

e-mailed to the Court, and I apologize for not including it in

my letter. There's some lack of clarity on my part about

whether defendants have made a full disclosure under requests 5

and 6 from my May 21st letter, and these are -- both categories

relate to documents that MCSO has provided to the monitor.

MCSO has produced a number of the documents that are

responsive, and Mr. Williams and I were meeting and conferring

at the last minute yesterday just to get some clarity about

whether anything was still withheld.

To the extent that there are documents that are

withheld in that last category we just addressed about the

weekly -- or the regular spreadsheet that's given to the

monitor as one of those categories, I just want to clarify that

we are seeking those other documents as well.

THE COURT: Mr. Williams.

MR. WILLIAMS: Your Honor, I believe we have disclosed

in the privilege log or in our correspondence any of those



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documents that weren't produced, and I think all of them fall

in the category of what we've been discussing today. So I just

want to clarify that if you -- that by ordering the production

of all those, it is pursuant to the terms of your order today,

if they fall in that category with respect to an investigation.

THE COURT: I'm not sure that I've understood this

interchange exactly, but are you satisfied, Ms. Wang?

MS. WANG: I think so. Maybe we should just clarify

with Mr. Williams that documents that MCSO is producing to the

monitor will be produced to plaintiffs with the limitation that

the Court has imposed on the other categories.

THE COURT: Yes. Now, let me ask, is there any reason

why my order on this matter should be kept from the public?

I'm not sure that the order itself would disclose any

privileged material, and it seems to me that we need to -- as

I've said before, and I think all parties are in agreement, we

need to be as open as we can be without interfering with

legitimate police operations.

Is there any reason why the order cannot be publicly

filed?

MR. WILLIAMS: Your Honor, from defendants I guess it

depends on the level of detail that the order gets into, but

presuming the order does not get into the details of any of

what was discussed today with respect to the status of the

investigation, the nature of the spreadsheets, the process,



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et cetera, to the extent it simply grants plaintiffs access and

restates the restriction, I think Your Honor is correct. I

would just be nervous without any recital leading up to that.

THE COURT: Ms. Wang.

MS. WANG: Plaintiffs' view is that Your Honor's order

should be public, and we agree that, obviously, anything that's

sensitive or confidential should not be in that order.

THE COURT: All right. Thanks to all parties.

Is there anything else that needs to be raised?

MS. WANG: Your Honor, just a clarification.

MCSO has identified these 394 video files, but I take

it that the Court is ordering the larger scope of documents

that were seized from Armendariz's home to be disclosed to

plaintiffs, is that right?

THE COURT: That's correct.

MS. WANG: Okay.

MR. WILLIAMS: Your Honor, the only other issue with

respect to the lieutenant review of the videos that I

mentioned, which obviously is part of the investigative

spreadsheet, I wonder if the Court would allow us to complete

that lieutenant review, which would then be put into the

investigative spreadsheet before disclosing the spreadsheet, so

that at least the final version of the MCSO's review of those

videos is there, rather than the intermediate production of

that review.



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THE COURT: How long do you anticipate that taking?

MR. WILLIAMS: Two weeks, Your Honor.

THE COURT: Mr. Warshaw?

MONITOR WARSHAW: From our perspective, I think that's

acceptable, Judge.

MS. WANG: Your Honor, for plaintiffs -- sorry.

THE COURT: I am sorry. I just couldn't hear what you

said, Bob. Can you repeat that, please?

And then, Ms. Wang, I'll hear from you.

MONITOR WARSHAW: Right. If I understand

Mr. Williams, is he -- is Mr. Williams, may I ask, are you

saying it will take you two weeks, or --

MR. WILLIAMS: Yes, we think the review can be

complete within two weeks.

THE COURT: Ms. Wang.

MS. WANG: Your Honor, my understanding is that MCSO

has been providing a version of this spreadsheet, which, as

Mr. Williams described it, is a work in progress, to the

monitor team on a regular basis. Our request is that we get

copies of all such spreadsheets as they've been produced to the

monitor, and that includes, you know, what's happened so far.

So our request is to get copies of all of those, and

including future versions, as Mr. Williams is describing.

THE COURT: Yeah. I think that's a fair --

MONITOR WARSHAW: Your Honor -- I'm sorry.



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THE COURT: I think that's a fair request. It's the

import, I think, already of my order. But to the extent that

Mr. Williams wants to designate one of those as final so that

you can have the final assessment of the MCSO, I think that

works, too.

MS. WANG: That's right, for us, too.

THE COURT: All right. Thank you all.

MONITOR WARSHAW: Okay. Thank you, Judge.

(Proceedings concluded at 10:41 a.m.)



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C E R T I F I C A T E

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

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 11th day of August,

2014.

s/Gary Moll


Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB

Documents

Transcript of Melendres # 735 | Aug 7 2014 SEALED TranscriptFOFB