Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 1 of 10

1
2
3
4
5
6
7
8

John T. Masterson, Bar #007447

Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7846
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com
Attorneys for Defendant Joseph M. Arpaio in
his official capacity as Sheriff of Maricopa
County, AZ

UNITED STATES DISTRICT COURT

10

DISTRICT OF ARIZONA

11
12

Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,

13
v.

14
15

Defendant.

17

19
20
21
22
23

Defendant Arpaio files this Motion pursuant to this Courts invitation during
trial on November 10, 2015, regarding the conditional admission of Exhibits 2947 and
2948.

26
27
28

For the reasons stated below, Exhibits 2947 and 2948 are privileged, were

inadvertently disclosed to Plaintiffs, and should be precluded from admission in this

action. The foregoing is more fully supported by the following Memorandum of Points
and Authorities.
MEMORANDUM OF POINTS AND AUTHORITIES

24
25

DEFENDANT ARPAIOS MOTION

RE: OBJECTION TO ADMISSION
OF EXHIBITS 2947 AND 2948

Joseph M. Arpaio, et al.,

16

18

NO. CV 07-02513-PHX-GMS

I.

EXHIBITS 2947 AND 2948

On November 10, 2015, Plaintiffs sought to admit Exhibits 2947 and 2948

at trial. Exhibit 2947 is an e-mail thread between Michele Iafrate and MCSO employees
regarding an attached litigation hold letter (Exhibit 2948). The e-mail thread clearly
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 2 of 10

identifies that the attached correspondence is from Legal Counsel for MCSO and that:

This communication, and any documents, files, or E-mail

messages attached to it may contain confidential information
that is legally privileged. If you are not the intended recipient,
the employee or agent for delivering the communication to the
intended recipient, you are hereby notified that any disclosure,
copying, distribution, or use of any of the information
contained in or attached to this communication is STRICTLY
PROHIBITED. If you have received this communication in
error, please immediately notify us by telephone at (602) 2349775 and destroy the original and its attachments without
reading or saving them in any matter. THANK YOU.

To date, Defendant Arpaio never received any notification from Plaintiffs regarding

disclosure of Exhibit 2947 (and 2498), despite the clear language in that document

3
4
5
6

10

requesting that counsel do so.

11

Exhibit 2948, which was included as an attachment to Exhibit 2947, is a

12

April 24, 2015, litigation hold letter from Ms. Iafrate to MCSO employees regarding the

13

Seattle/Montgomery Investigation. It is patently clear that this letter is a privileged

14

communication, the purpose of which was to comply with evidence preservation

15

requirements directly tied to these contempt proceedings.

16

II.

17

A.

18
19
20
21
22
23
24
25
26
27
28

LEGAL ARGUMENT
Exhibits 2947 and 2948 are subject to Defendant Arpaios attorney
client privilege.
The attorney-client privilege protects confidential communications from

clients to their attorneys made for the purpose of securing legal advice or services, as
well as communications from attorneys to their clients if the communications rest on
confidential information obtained from the client. Tax Analysts v. Internal Revenue
Serv., 117 F.3d 607, 618 (D.C.Cir.1997) (citation omitted). It is generally agreed that in a
government agency the attorney-client privilege belongs to the government agency, and
not an individual government employee. The privilege for governmental entities may be
asserted or waived by the responsible public official or body. Restatement Third, Law
Governing Lawyers 74, cmt. e. The Restatement contemplates an individual employee
as the client only if the attorney is retained by the agency as separate counsel to represent
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 3 of 10

the personal interests of the employee.

Professional Conduct acknowledge when an attorney is representing a government entity,

she is usually representing the government as a whole.

Professional Conduct, Rule 1. 13, Official Comment (2003).

Id. at cmt. d.

The ABA Model Rules of

ABA Model Rules of

The few courts that have addressed the issue have come to the same

conclusion.1 See e.g., United States v. John Doe, 399 F.3d 527, 532 (2d Cir. 2005)

(privilege generally held to apply to the government in civil litigation); Am. Civil Liberties

Union of N. California v. Dep't of Justice, No. 13-CV-03127-MEJ, 2015 WL 4241005, at

*3 (N.D. Cal. July 13, 2015) (same); United States v. Ferrell, No. CR07-0066MJP, 2007

10

WL 2220213, at *4 (W.D. Wash. Aug. 1, 2007) (This Court agrees with the conclusions

11

of other federal courts that have ruled on the matter and finds that the attorney-client

12

privilege belongs to a government entity and not to its individual employees.); Barcomb

13

v. Sabo, No. 07-CV-877 (GLS/DRH), 2009 WL 5214878, at *3 (N.D.N.Y. Dec. 28, 2009)

14

([T]he relationship between a government attorney and a government official or

15

employee is not the same as that between a private attorney and his client. For one, in the

16

government context, the individual consulting with his official attorney may not control

17

waiver of the privilege.); Lockyer v. Superior Court, 83 Cal.App.4th 387, 399 (Cal .App.

18

4 Dist. 2000) (designating the District Attorney's Office, not the individual prosecuting

19

attorney, as the proper holder of the privilege); Edwards v. Mass. Bay Transp. Authority,

20

2000 WL 1786326 at *4 (not reported in N.E.2d) (When an organization is an attorney's

21

client, the attorney may be able to confer with an organization's employee within the

22

umbrella of the organization's attorney-client privilege, but that privilege belongs to the

23

organization, not the employee.); Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y.

24

1979) (finding that the privilege did not apply to FBI agents who were interviewed by

25

Dept. of Justice attorneys investigating actions taken in the course of agents' duties).

26

In addition, in the corporate context, the privilege belongs solely to the

27
1

28
4602707.1
11/11/15

The Ninth Circuit has not yet ruled on this issue. See Ruehle, 583 F.3d at 608 n.7.
3

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 4 of 10

corporation and is not the individual employees. See, e.g., Commodity Futures Trading

Comm'n v. Weintraub, 471 U.S. 343, 348 (1985) (the power to waive the corporate

attorney-client privilege rests with the corporation's management and is normally

exercised by its officers and directors.); In Re Bevill, Bresler & Shulman Asset Mgmt.

Corp., 805 F.2d 120, 125 (3d Cir. 1986) (holding that a corporate official may not invoke

the privilege when it has been waived by the corporation); Citibank, N .A. v. Andros, 666

F.2d 1192, 1195 (8th Cir. 1981) (stating that the power to assert the privilege belongs to

management and not to individual officers); Odmark v. Westside Bancorp., Inc., 636

F.Supp. 552, 555 (W.D. Wash. 1986) (when a corporate agent, acting in his or her

10

official capacity, consults counsel, the privilege belongs to the corporation and not to the

11

individual officer.).

12

Here, the Attorney-Client privilege contained in Exhibits 2948 and 2947 is

13

held by Sheriff Arpaio. Ms. Iafrate, as counsel for Sheriff Arpaio, was communicating on

14

his behalf to other MCSO employees regarding preserving information that this Court

15

deemed pertinent to this case. As such, the communications are absolutely privileged and

16

the privilege is held by Sheriff Arpaio alone.

17

B.

18
19
20
21
22
23
24
25
26
27
28

This Court should not admit Exhibits 2948 and 2948 because they were
inadvertently disclosed to Plaintiffs.
Like most courts elsewhere, courts within the Ninth Circuit have embraced

the totality of the circumstances approach to inadvertently produced privileged

documents. U.S. ex rel. Bagley v. TRW, Inc., 204 F.R.D. 170, 177 (C.D. Cal. 2001). In the
Ninth Circuit, the inadvertent production of privileged documents is neither a necessary
nor a sufficient condition for finding that the privilege was waived. See Gomez v. Vernon,
255 F.3d 1118, 11311132 (9th Cir. 2001) (citing United States v. de la Jara, 973 F.2d
746, 749750 (9th Cir. 1992)). Instead, in determining whether a privilege has been
waived by the inadvertent production of privileged documents, courts within the Ninth
Circuit consider the circumstances surrounding the disclosure, including whether the
privilege holder has made efforts reasonably designed to protect and preserve the
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 5 of 10

privilege. de la Jara, 973 F.2d at 749750 (quoting Transamerica Computer Co. v.

International Business Machines Corp., 573 F.2d 646, 650, 652 (9th Cir. 1978)); see

Gomez, 255 F.3d at 11311132. Not surprisingly, courts are somewhat reluctant to pierce

the attorney-client privilege, especially where the conduct allegedly constituting a waiver

was unintentional. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126 (7th

Cir. 1997) (defining inadvertent disclosure as where a party mistakenly discloses

information that it had intended to keep secret, and observing that [c]ourts are

somewhat less likely to find waiver when disclosure was inadvertent than when

disclosure was intentional and selective).

10

To guide analysis in cases in which privileged documents have been

11

produced inadvertently, courts adopting the totality of the circumstances approach

12

including several district courts within the Ninth Circuittypically use a five-factor test.

13

As the test is usually phrased, the factors are:

14

(1) the reasonableness of the precautions to prevent

inadvertent disclosure; (2) the time taken to rectify the error;
(3) the scope of the discovery; (4) the extent of the disclosure;
and (5) the overriding issue of fairness.

15
16
17
18
19
20
21
22
23

U.S. ex rel. Bagley v. TRW, Inc., 204 F.R.D. 170, 177 (C.D. Cal. 2001); Hartford Fire
Insurance Co. v. Garvey, 109 F.R.D. 323, 332 (N.D.Cal.1985) (citing Lois Sportswear,
U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985)); see, e.g.,
Cunningham v. Connecticut Mutual Life Insurance, 845 F.Supp. 1403, 1409 (S.D.Cal.
1994); In re Sause Brothers Ocean Towing, 144 F.R.D. 111, 115 (D. Or. 1991); Eureka
Financial Corp. v. Hartford Accident & Indemnity Co., 136 F.R.D. 179, 184 (E. D. Cal.
1991); Bud Antle, Inc. v. GrowTech Inc., 131 F.R.D. 179, 183 (N.D. Cal. 1990).
1.

24

Reasonableness of the precautions taken to prevent inadvertent

disclosure.

25

The first factorthe reasonableness of the precautions taken to prevent

26

inadvertent disclosurefavors Defendant Arpaio. The challenges posed by a large-scale

27

document production are familiar. A two-layer system of pre-production reviewin

28

which relatively ministerial determinations are made by employees of the producing party
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 6 of 10

or by clerks, paralegals, or inexperienced associates employed by a law firm, and in which

the final decision about what documents should or should not be produced is made by

experienced in-house or outside lawyersis not unusual. That is the general procedure

followed by Defendant Arpaio in this instance. In addition to providing meaningful

protection for privileged documents, such an approach reduces the transaction costs of

litigation by allowing individuals with less experience and trainingand, if the review is

performed by outside counsel, correspondingly lower billing ratesto perform the most

time-consuming and routine tasks. Punishing Defendant Arpaio for adopting this

common, reasonable, and cost-effective strategy would not make sense. It also would

10

unwisely discourage other litigants from adopting an economical procedure in the future.

11

2.

12

The second factor- the time taken to rectify the error favors Defendant.

13

Defendant Arpaio did not know of the inadvertent disclosure until it was sought to be

14

admitted at trial on November 10, 2015. Counsel for Defendant immediately objected to

15

admission of Exhibits 2947 and 2948 on the grounds of privilege (among other things).

16

As such Defendant Arpaio promptly attempted to rectify the error. See Zapata v. IBP,

17

Inc., 175 F.R.D. 574, 577 (D. Kan. 1997) (The relevant time for rectifying any error

18

begins when a party discovered or with reasonable diligence should have discovered the

19

inadvertent disclosure.); Aramony, 969 F.Supp. at 237 (The period after the producing

20

party realizes that privileged information has been disclosed is the relevant period for

21

measuring whether the privilege has been waived.).

Time taken to rectify the error.

22

3.

23

The third factorthe scope of the discoveryfavors Defendant Arpaio.

24

Defendant Arpaio estimates that it produced approximately 1.4 million documents (and

25

counting) during the compliance phase of this litigation. Although it is easy to cite

26

examples of much larger document productions, see, e.g., Transamerica Computer Co.,

27

573 F.2d at 648 (17 million pages of documents produced), it is likely that as many as 1.4

28

million documents are produced in fewer than a fraction of one percent of all cases filed in
4602707.1
11/11/15

Scope of Discovery.

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 7 of 10

the federal courts. See Lazar v. Mauney, 192 F.R.D. 324, 330 (N.D. Ga. 2000) (describing

a production of 1,000 pages as voluminous); Zapata, 175 F.R.D. at 577 (describing

40,000 documents as an enormous number); Bank Brussels Lambert, 160 F.R.D. at 446

(describing a production of 120,000 pages as immense). In a production of this

magnitude, it is likely, if not inevitable, that some mistakes will be made, no matter how

reasonable are the precautions taken and no matter how diligent and well-trained are the

persons charged with implementing those precautions. See United States v. Gangi, 1

F.Supp.2d 256, 266 (S.D.N.Y.1998) (Where numerous documents are involved and

thousands of pages are produced, errors are more understandable.); Zapata, 175 F.R.D. at

10

578 (Common sense suggests that a party might inadvertently fail to keep within its

11

grasp one or two documents in the course of producing 1,500,000.) (quoting In re

12

Wyoming Tight Sands Antitrust Cases, 1987 WL 93812, at *5 (D. Kan. 1987)).

13

4.

14

The fourth factorthe extent of the disclosurefavors Defendant Arpaio.

15

The two privileged documents produced is small compared to many inadvertent

16

productions described in reported cases. Compare Lazar, 192 F.R.D. at 330 (concluding

17

that the privilege was not waived when three privileged documents were produced along

18

with about 1,000 other documents) and Lois Sportswear, 104 F.R.D. at 105 (concluding

19

that the privilege was not waived when 22 privileged documents were mistakenly

20

produced along with 16,000 other documents) with Local 851, 36 F.Supp.2d at 133

21

(concluding that the privilege was waived when one privileged document was filed along

22

with six other exhibits to a motion).

Extent of Disclosure.

23

5.

24

The fifth factorfairnessweighs in favor of Defendant Arpaio. To begin

25

with, in determining whether an inadvertent production of privileged material amounts to

26

a waiver, the importance of the attorney-client privilege should not be ignored. The

27

attorney-client privilege is one of the oldest recognized privileges for confidential

28

communications. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). The
4602707.1
11/11/15

Fairness.

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 8 of 10

privilege is intended to encourage full and frank communication between attorneys and

their clients and thereby promote broader public interests in the observance of law and the

administration of justice. Swidler & Berlin, 524 U.S. at 403 (quoting Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981)). That purpose, of course, requires that clients

be free to make full disclosure to their attorneys' ... in order that the client may obtain

the aid of persons having knowledge of the law and skilled in its practice. Zolin, 491

U.S. at 562 (quoting Fisher v. United States, 425 U.S. 391, 403, (1976) and Hunt v.

Blackburn, 128 U.S. 464, 470 (1888)).

It should also be noted that a party to whom privileged documents are

10

produced inadvertently has no inherent fairness interest in keeping them, unless the

11

producing party waited so long to address the problem after having been informed of it

12

that the receiving party reasonably changed its position in reliance upon their continued

13

availability. See Kansas City Power & Light Co. v. Pittsburg & Midway Coal Mining Co.,

14

133 F.R.D. 171, 174 (D. Kan. 1989) (Defendant fortuitously obtained the privileged

15

documents. It could not have expected to obtain them and could not have reasonably

16

relied on them. To the extent defendant did rely on them, it did so without plaintiffs'

17

knowledge or consent.). This is especially apt in the event that, as here, documents were

18

clearly labeled attorney-client privileged, and attorneys mentioned in the documents

19

were known by the receiving party to be the producing party's litigation counsel at the

20

time the documents were studied. In these circumstances, any reliance by Plaintiffs on the

21

continued availability of the documents is unjustifiable. See Gomez, 255 F.3d at 1132

22

1134 (affirming the imposition of monetary sanctions for bad faith misconduct because

23

opposing counsel acquired, studied, and retained documents that were labeled

24

privileged or were on the letterhead of opposing counsel).

25

Finally, the potential value of the inadvertently-produced privileged

26

documents to the receiving party is beside the point. Kansas City Power & Light, 133

27

F.R.D. at 174 (indicating that the fact that inadvertently produced documents are relevant,

28

or even helpful to the receiving party, is not dispositive). The waiver determination
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 9 of 10

should not turn on whether the continued availability of the privileged documents would

benefit the receiving party, or to what extent. See Bank Brussels Lambert, 160 F.R.D. at

446 (stating that the relevance of a privileged document to the merits of the litigation

does not make it unjust to withhold it from discovery. The prejudice factor focuses only

on whether the act of restoring immunity to an inadvertently disclosed document would be

unfair, not whether the privilege itself deprives parties or pertinent information.); see

also Lois Sportswear, 104 F.R.D. at 105 (suggesting that what matters is the fairness of

depriving the producing party of a valid privilege). If that were the test, the fifth factor

would always favor the receiving party.

10

Accordingly, all five factors weigh against finding waiver of Defendant

11

Arpaios attorney-client privilege due to the inadvertent production of privileged

12

documents.

13

III.

CONCLUSION

14

For the aforementioned reasons, Defendant Arpaio requests that this Court

15

reconsider its conditional admission of Exhibits 2947 and 2948, and rule that their

16

inadvertent disclosure to Plaintiffs should preclude their admission due to Defendant

17

Arpaios attorney client privilege.

18

DATED this 11th day of November, 2015.

19

JONES, SKELTON & HOCHULI, P.L.C.

20
21

By s/ Joseph J. Popolizio
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio
and the Maricopa County Sheriffs Office

22
23
24
25
26
27
28
4602707.1
11/11/15

Case 2:07-cv-02513-GMS Document 1535 Filed 11/11/15 Page 10 of 10

CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of November, 2015, I caused the

foregoing document to be filed electronically with the Clerk of Court through the

CM/ECF System for filing; and served on counsel of record via the Courts CM/ECF

system.

6
7

/s/Mary M. Soto

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4602707.1
11/11/15

10