Melendres # 1041 - Apr 24 2015 SEALED Transcript

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega

Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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BEFORE THE HONORABLE G. MURRAY SNOW
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(Evidentiary Hearing Day 4, pages 1019-1035)
OF
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SEALED PROCEEDINGS
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DS
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Court Reporter:
IEN
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Phoenix, Arizona
April 24, 2015
5:37 p.m.
TH
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CV 07-2513-PHX-GMS
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Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 1 of 17
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FR
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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
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SEALED PROCEEDINGS, Melendres v. Arpaio, 4/24/15
1020
A P P E A R A N C E S
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For the Plaintiffs:
Cecillia D. Wang, Esq.

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California 94111
(415) 343-0775
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5
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Stanley Young, Esq.

Hyun S. Byun, Esq.
COVINGTON & BURLING, L.L.P.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
(650) 632-4700
EF
OG
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Daniel J. Pochoda, Esq.

Joshua D. Bendor, Esq.
AMERICAN CIVIL LIBERTIES
FOUNDATION OF ARIZONA
3707 N. 7th St., Suite 235
(602) 650-1854
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OF
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For the Defendants:
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Michele M. Iafrate, Esq.

IAFRATE & ASSOCIATES
649 N. 2nd Avenue
(602) 234-9775
For the Defendant Maricopa County:
IEN
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Andre I. Segura, Esq.

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
125 Broad Street, 17th Floor
New York, New York 10004
(212) 549-2676
Richard K. Walker, Esq.

WALKER & PESKIND, P.L.L.C.
16100 N. 71st Street
Suite 140
Scottsdale, Arizona 85254
(480) 483-6336
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1021
A P P E A R A N C E S
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For the Defendant Arpaio:
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A. Melvin McDonald, Esq.

JONES, SKELTON & HOCHULI, P.L.C.
2901 N. Central Avenue, Suite 800
(602) 263-1700
For Chief Deputy Sheridan: Lee D. Stein, Esq.

MITCHELL STEIN CAREY
One Renaissance Square
2 North Central Avenue
Suite 1900
(602) 358-0290
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8
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For Executive Chief Sands:
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Greg S. Como, Esq.

LEWIS BRISBOIS BISGAARD
& SMITH, L.L.P.
Phoenix Plaza Tower II
2929 N. Central Avenue
Suite 1700
Phoenix, Arizona 85012-2761
(602) 385-1040
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For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.

DICKINSON WRIGHT, P.L.L.C.
Attorneys at Law
1850 N. Central Avenue, Suite 1400
(602) 285-5000
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For Lieutenant Sousa:
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OF
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ALSO PRESENT:
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David S. Eisenberg, Esq.

DAVID EISENBERG, P.L.C.
2702 N. 3rd Street
Suite 4003
(602) 237-5076
Chief
Chief
Chief
Karen
Ralph
Robert Warshaw
John Girvin
Raul Martinez
Clark, Esq.
Adams, Esq.
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1022
P R O C E E D I N G S
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MS. CLARK:
Thank you, Your Honor.
Judge Snow, as you're aware, Tim Casey is under this
Court's order to assist in the transition of this case to
Ms. Iafrate and to cooperate, essentially, in regard to the
fact that he had been charged with the duty of making sure that
his client, Sheriff Arpaio and judge -- excuse me, the MCSO,
comply with this Court's order.
EF
OG
And in that regard you'd asked
10
him to assist Ms. Iafrate in a continuing way in this case, and
11
that order is still in effect.
12
copy of his client file in this case.
14
aware of Sheriff Arpaio's testimony yesterday regarding the
15
Grissom matter.
16
officer of the court to be candid with this tribunal and to
17
cooperate with the Court, while at the same time remaining in
18
absolute and strict compliance with his ethical obligations to
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his former clients, Sheriff Joe Arpaio, as well as the MCSO.
TH
17:38:06
OF
There is a letter in the file that he provided to
Ms. Iafrate from Tim Casey concerning Sheriff Arpaio.
me, a letter from Tim Casey to Sheriff Arpaio.
IEN
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Tim Casey and I are
Tim Casey is aware of his obligations as an
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17:37:49
Mr. Casey has provided Michele Iafrate with a complete
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20
17:37:31
Excuse
Chief MacIntyre
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was copied on that letter, as was counsel for MCSO in this
24
matter, Mr. Liddy.
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17:38:25
Based on this Court's ruling regarding communications
17:38:47
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1023
Mr. Casey had with Arpaio which were copied to Chief MacIntyre,
we believe that privilege may be waived as it concerns this
letter, not only because of that ruling you have made as to
Chief MacIntyre, but also as well by the testimony of Sheriff
Arpaio yesterday.
17:39:11
Tim Casey takes the position that this document needs
to be provided to the Court and/or to the monitor.
two reasons why he believes this is so.
ethical obligations under Ethical Rule 3.3 concerning candor to
There are
EF
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One involves his
10
the tribunal.
11
interpreting Ethical Rule 3.3, and that opinion makes it very
12
clear that the duty of confidentiality -- excuse me, the duty
13
of candor to the tribunal survives termination of the
14
representation.
TH
He's familiar with Ethics Opinion 05-05
The other reason he believes that this document must
16
be provided is that he believes it falls within the documents
17
this Court has ordered be provided to the monitor regarding the
18
Grissom matter.
19
21
Mr. Liddy.
I e-mailed it to them last night.
acknowledged receipt of it.
Ms. Iafrate
It also states it's
23
our position that Ms. Iafrate, as well as Mr. Liddy, have the
24
obligation under ethical 3 -- rule 3.3 to correct the testimony
25
of Sheriff Arpaio yesterday.
FR
17:40:09
It raised the issue that Tim Casey
takes the position I have just described.
IEN
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Yesterday I wrote a letter to Ms. Iafrate and
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17:39:50
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17:39:30
We believe that that remedial
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1024
measures required under 3.3 include providing a copy of the
letter to the Court.
What I'm suggesting at a minimum -- and by the way, I
have asked in those -- excuse me, I need to backtrack because I
sent a second letter today reiterating that point, and I was
advised by Mr. Liddy that I should copy -- last night I was
advised by Mr. Liddy that I should copy Mr. McDonald on that
letter, which I did.
EF
OG
I approached them today, asked them if they had read
10
the letter and asked them if they would be taking -- "they"
11
meaning Mr. Liddy and Ms. Iafrate and Mr. McDonald -- remedial
12
measures as required by 3.3.
13
that they will.
15
be provided to the Court in a sealed envelope, and in keeping
16
with some of the procedures I've heard in court in the past
17
from Your Honor, that this manner -- that this envelope be
18
provided to a magistrate assigned by the Court to review it and
19
determine two issues.
17:41:32
OF
DS
Number one, whether privilege has in fact been waived
in addition, number two, whether it falls indeed within the
23
scope of materials required to be provided to the monitor
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pursuant to your orders yesterday.
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making, Your Honor.
FR
17:41:49
or applies concerning this letter at this point in time, and,
IEN
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TH
What I'm suggesting at a minimum is that this letter
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17:41:16
I have not as yet been assured
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17:40:59
That's the record I'm

17:42:11
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1025
THE COURT:
Thank you.
MR. LIDDY:
Your Honor, may I be heard?
THE COURT:
You may.
MR. LIDDY:
Your Honor, yesterday when I heard the
par- -- a portion of the testimony of my client, Sheriff Arpaio
under the Court's examination, I, too, felt that a portion of
that needed to be corrected.
When I left the courtroom this afternoon I conferred with my
ethics counsel, who agreed with me that I, too, under 3.3, had
I conveyed that to co-counsel.
EF
OG
10
an obligation to correct the record.
11
I came here prepared to do that.
Ms. Iafrate, in her examination of Jerry Sheridan, cleaned up
13
the portion of Sheriff Arpaio's testimony for which I was
14
concerned.
15
Court's question of whether or not there was an investigation
16
of your wife and whether or not Tim Casey hired an investigator
17
to investigate your wife, which I understand the sheriff left
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that impression -- did with me -- it's my opinion that it's not
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accurate, and that was made clear in the testimony of
20
Chief Sheridan today under examination by Ms. Iafrate.
17:43:18
DS
OF
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I now believe that the record, specifically the
THE COURT:
23
How does Mr. Sheridan's testimony clarify
MR. LIDDY:
Your Honor, I think that's a fair
24
question.
25
best way and proper way to correct the testimony would be to
FR
17:43:41
what chief -- what Sheriff Arpaio testified to?
IEN
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17:42:46
Under my opinion,
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17:42:23
And I would agree, if it's your implication that the

17:44:01
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1026
have Sheriff Arpaio take the stand again and give him the
opportunity to correct the testimony.
sher- -- excuse me, if that's what the Court means, I would
agree with the Court.
THE COURT:
MS. IAFRATE:
Ms. Iafrate.
If that's what the
17:44:18
Your Honor, it was an answer by Sheriff
Arpaio that I believed I could correct with Chief Deputy
Sheridan explaining -THE COURT:
10
I don't believe that.
EF
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MS. IAFRATE:
11
yesterday.
12
THE COURT:
That was my intention.
No, no.
It was discussed
I believe that's your intention.
13
I do believe that's your intention.
14
Deputy Sheridan's testimony can clarify testimony from Sheriff
15
Arpaio.
16
you and Mr. Liddy and/or Ms. Clark, representing Mr. Casey, are
17
going to have to clarify it.
TH
I'm not sure that Chief
I think he's going to have to clarify that himself, or
OF
18
MS. IAFRATE:
20
Arpaio and Chief Deputy Sheridan after I finished my
DS
explored the discrepancies between the testimony of Sheriff
discrepancies.
Each individual testified as to what they
23
believed to be true.
24
and more on point regarding the individual examinations.
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17:45:13
examination of Chief Deputy Sheridan and you saw that there was
IEN
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17:44:55
Well, Your Honor, I think that you
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17:44:37
THE COURT:
Chief Deputy Sheridan was more articulate
Ms. Clark, do you have copies of the
17:45:36
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1027
letter in question?
MS. CLARK:
Yes, Your Honor, I do.
THE COURT:
Okay.
I'm going to ask you to retain
those, and --
MS. CLARK:
Judge, I provided them via e-mail to
Ms. Iafrate and Mr. Liddy last night.
MS. IAFRATE:
copy of it until this morning.
I'm sorry.
I did not receive a
I inadvertently forgot to
EF
OG
MS. CLARK:
That's incorrect.
10
attach it to the e-mail forwarding them my letter, which I then
11
corrected this morning before court.
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counsel.
15
TH
Mr. Casey has provided to Ms. Iafrate before she became
THE COURT:
All right.
Well, I will tell you what my
inclination is, and we can deal with this -- well, here's my --
17
I guess we don't have time for inclinations.
17:46:10
OF
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If Sheriff Arpaio made a misstatement, then Sheriff
Arpaio is going to have to correct it or his attorneys will
20
have to correct it.
DS
19
And I guess that what we will have to do
magistrate judge drawn in this matter, and he can inform me, if
23
he believes that the correction is sufficient, that the letter
24
need not be disclosed.
FR
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17:46:28
is provide the letter to Magistrate Judge Boyle, who is the
IEN
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17:45:59
In addition, that letter is part of the client file
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17:45:48
Does that meet with your ethi- -- with your view of
17:46:52
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your ethical responsibilities, Ms. Clark?
MS. CLARK:
It's Mr. Casey's ethical obligations --
THE COURT:
Yes, I'm sorry.
MS. CLARK:
-- and I believe that that does.
THE COURT:
Any last words from you, Mr. Liddy, on
MR. LIDDY:
Yes, Your Honor.
this?
7
8
letters that are probative.

THE COURT:
10
MR. LIDDY:
Oh.
I believe there are two
EF
OG
One from Mr. Casey to the investigator,
which would shed light on the facts of Mr. Casey's retention of
12
the investigator; and the second, the letter that has been
13
referred to by Ms. Clark that is an attorney-client letter, if
14
I've got the right one, from Mr. Casey to Mr. Sheridan --
15
excuse me, to Sheriff Arpaio, which lays out the results of the
16
interview and Mr. Casey's thought processes about it and why he
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proceeded the way he did.
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Do you disagree with that, Ms. Clark?
MS. CLARK:
I'm not exactly sure which the second
letter is that he's mentioning.

THE COURT:
All right.
You give the first letter.
IEN
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THE COURT:
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17:47:16
17:47:34
OF
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17:47:05
17:47:50
Well, here's what we'll do.
You give the second letter.
And we
can let -- I will give instructions to Magistrate Judge Boyle
24
how I view it before -- well, before you give the second
25
letter, why don't you identify it to Ms. Clark and to all other
FR
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17:48:08
parties, just what it is.
MS. WANG:
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1029
Your Honor, may plaintiffs be heard on
this?
THE COURT:
MS. WANG:
You may.
Your Honor, it's clear from Ms. Clark's
17:48:18
presentation that the letter that she's referring to and the
letter -- the second letter that Mr. Liddy is referring to
would tend to impeach Sheriff Arpaio's testimony, and we would
therefore ask to have a copy of both letters.
10
EF
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MR. McDONALD:
11
one moment?
12
THE COURT:
13
MR. McDONALD:
Judge, can I be heard on this just for
Yes.
What happened, Your Honor yesterday
handed the sheriff a document that we hadn't prepared for, he
15
hadn't looked at.
16
you investigate a member of my family?
TH
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And you asked -- directed the question:
Did
OF
Mr. -- it's how you try to define it.
19
covered it today.
20
only reason they were interviewing the lady is because of the
And Chief Sheridan
DS
They went and interviewed the lady, but the
And so the alarm or the flags that everybody's sending
23
you up the pole is, Oho, Mr. -- the sheriff misstated because
24
he's talking about investigating your wife when they're really
25
interviewing the lady that made it.
FR
17:49:16
accusations she'd made about your wife.
IEN
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17:48:51
There was engagement letters that addressed -- that
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17:48:38
But the reason that they
17:49:35
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1030
interviewed the lady that did the Facebook was because it
applied to your wife.
So I think this whole thing is an absolute mountain
over a minute molehill.
out there looking.
fact it is that simple that he -- when you were asking very
pointedly, "Has my family ever been investigated?" they're
questioning this lady that made the information to their
office, and it was about your wife.
He wasn't doing the investigation, but in
EF
OG
10
It's his perception of it when they're
So that is his understanding of it, but to now have
11
these hearings and waiving attorney-client privilege, I think
12
that what he said and what Chief Sheridan clarified --
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at the letter.
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MR. McDONALD:
I honestly haven't seen the letters
16
yet.
17
back and I've been involved in the proceeding, I haven't
18
studied the letters.

THE COURT:
deal.
Well, we're not going to -- here's the
We're not going to resume testimony on this till June.
chance to think about it, to review it if you have a right to
23
review it.
24
Mr. McDonald, although you can consult with him on that, and
25
you can show it to him since -- if you choose to.
FR
17:50:43
So we probably need to take this up when everybody's had a
IEN
22
But since I was late getting
DS
21
They were handed to me.
17:50:30
OF
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17:50:11
Well, I take it you don't want me looking
TH
THE COURT:
17:49:53
And that would be you, Ms. Iafrate, not
17:51:06
MR. McDONALD:
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1031
I've just been handed copies, I
think --
THE COURT:
Okay.
So you've already got it.
And then I'll decide how to proceed.
But likely, what
I'm going to do is I will consult with Magistrate Judge Boyle.
He will determine whether, A, anything needs to be done to
correct the record; B, if it does need to be done, what needs
to be done; C, if plaintiffs are entitled to copies, and it
seems to me like those are the relevant questions.
10
MS. CLARK:
EF
OG
I believe also a relevant question is
11
whether if there is no privilege, or even if there is
12
privilege, it comes within the documents that you have ordered
13
to be provided to the monitor.
14
15
Ms. Iafrate has a right to review those documents for
16
privilege.
17
I had asked Ms. Iafrate to either agree to
18
disclose the letter or to produce a privilege log for the
19
Court.
21
Well, do you want to review it and see if
MS. IAFRATE:
23
THE COURT:
Of course, Your Honor.
All right.
And if it's not privileged, it
24
seems to me then this is -- this truly is a tempest in a
25
teapot.
FR
17:52:10
you think it's privileged?
IEN
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THE COURT:
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17:51:58
OF
MS. CLARK:
17:51:45
Well, I think I made clear, though, that
TH
THE COURT:
17:51:19
You can provide the letter and on we'll go, determine
17:52:21
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1032
whether or not there needs to be any corrective statement and
the monitor will have the access to the document.
If you determine that this is privileged, then we can
take up this matter.
let's tee it up so that we can address it on May 8th.
All right?
MS. CLARK:
And if you have any questions on it,
Judge, just so I'm clear, I've heard
discussion about a deposition of Mr. Casey, and I'm assuming
that that would be put off until after May 8th so there would
be a ruling?
11
THE COURT:
12
MS. CLARK:
13
THE COURT:
EF
OG
10
Okay.
May 8th is the earliest date I'm going to
15
giving depositions.
16
MS. CLARK:
Thank you for that.
17
THE COURT:
Okay.
MR. LIDDY:
Your Honor, I just want to make perfectly
17:53:00
OF
TH
rule on whether or not Mr. Casey and/or Mr. Liddy will be
18
clear for the record that it is my perception that the sheriff
20
made a mistake when he answered the question in a way that I
DS
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17:53:08
believe is not accurate, and that I in no way am implying to

this Court that the sheriff intentionally answered that
IEN
22
17:52:51
Oh, yes.
14
21
17:52:37
question in a way that I deem to be inaccurate.

THE COURT:
I understand that, and I'm not going to --
you know, I don't have any intention of making a bigger matter
17:53:25
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1033
out of this than it is.
I also don't have any intention of
making a smaller matter out of it than it is.
MS. CLARK:
Judge, if I may be heard on that.
THE COURT:
Yes.
MS. CLARK:
Mr. Liddy informed me -- in the presence
of Mr. Casey, who heard it, too -- that it was his opinion that
the testimony was false, although he believed that it was not
intentionally false.
it's also what he told me -- he, Mr. Liddy -- at the start of
EF
OG
That's what he told me yesterday, and
10
court today.
11
similar statement to Mr. McDonald.
12
that.
13
I've been informed that he also made a very
THE COURT:
14
All right.
But we're not really here
TH
dealing with the credibility of Mr. Liddy.

No.
16
THE COURT:
And so --
17
MS. CLARK:
But it does guide the remedial measures
MR. LIDDY:
Your Honor, the credibility of Mr. Liddy
18
duties.
is important on the record, and I came before this Court
DS
19
it needed to be corrected.
It was not accurate.
23
THE COURT:
24
Anything else that we need to raise?
25
MS. IAFRATE:
FR
17:54:11
moments ago to say that when I heard the testimony, I believed
IEN
22
17:54:03
OF
MS. CLARK:
21
17:53:51
Mr. McDonald informed me of
15
20
17:53:37
Okay.
Aren't you glad it's the weekend.
No, Your Honor.
17:54:33
MS. WANG:
MR. WALKER:
MR. McDONALD:
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1034
No, Your Honor.
Thank you.
No, Your Honor.
Judge, one last question.
move that hearing on the 8th up earlier?
10:30 hearing.
your schedule would accommodate.
I notice that I had a
If we could go at 9:00 instead of 10:00, if
THE COURT:
8th as opposed to 10 o'clock?

MS. WANG:
Yeah, that's fine, Your Honor.
10
THE COURT:
11
(Proceedings recessed at 5:55 p.m.)
12
13
15
16
OF
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IEN
22
DS
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20
9 o'clock.
TH
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FR
25
17:54:46
Does anybody object to 9 o'clock on the
EF
OG
Could we
17:55:03
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1035
1
2
C E R T I F I C A T E
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7
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.
EF
OG
10
I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
TH
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2015.
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IEN
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DS
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OF
DATED at Phoenix, Arizona, this 27th day of April,
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FR
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s/Gary Moll

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1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega

Joseph M. Arpaio, et al.,

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

(Evidentiary Hearing Day 4, pages 1019-1035)

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 1 of 17

Proceedings taken by stenographic court reporter

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 2 of 17

For the Plaintiffs:

Cecillia D. Wang, Esq.

Stanley Young, Esq.

Daniel J. Pochoda, Esq.

For the Defendants:

Michele M. Iafrate, Esq.

For the Defendant Maricopa County:

Andre I. Segura, Esq.

Richard K. Walker, Esq.

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 3 of 17

For the Defendant Arpaio:

A. Melvin McDonald, Esq.

For Chief Deputy Sheridan: Lee D. Stein, Esq.

For Executive Chief Sands:

Greg S. Como, Esq.

For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.

For Lieutenant Sousa:

David S. Eisenberg, Esq.

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 4 of 17

Thank you, Your Honor.

Judge Snow, as you're aware, Tim Casey is under this

Court's order to assist in the transition of this case to

Ms. Iafrate and to cooperate, essentially, in regard to the

comply with this Court's order.

And in that regard you'd asked

him to assist Ms. Iafrate in a continuing way in this case, and

that order is still in effect.

copy of his client file in this case.

aware of Sheriff Arpaio's testimony yesterday regarding the

officer of the court to be candid with this tribunal and to

cooperate with the Court, while at the same time remaining in

absolute and strict compliance with his ethical obligations to

his former clients, Sheriff Joe Arpaio, as well as the MCSO.

There is a letter in the file that he provided to

Ms. Iafrate from Tim Casey concerning Sheriff Arpaio.

me, a letter from Tim Casey to Sheriff Arpaio.

Tim Casey and I are

Tim Casey is aware of his obligations as an

Mr. Casey has provided Michele Iafrate with a complete

was copied on that letter, as was counsel for MCSO in this

matter, Mr. Liddy.

Based on this Court's ruling regarding communications

Case 2:07-cv-02513-GMS Document 1041 Filed 04/27/15 Page 5 of 17

we believe that privilege may be waived as it concerns this

letter, not only because of that ruling you have made as to

Chief MacIntyre, but also as well by the testimony of Sheriff

Tim Casey takes the position that this document needs

to be provided to the Court and/or to the monitor.

two reasons why he believes this is so.

ethical obligations under Ethical Rule 3.3 concerning candor to

One involves his

interpreting Ethical Rule 3.3, and that opinion makes it very