Melendres # 1491 - Oct 28 TRANSCRIPT (Status Conference)

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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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BEFORE THE HONORABLE G. MURRAY SNOW
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(Telephonic Conference)
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Court Reporter:
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Phoenix, Arizona
October 26, 2015
11:10 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
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No. CV 07-2513-PHX-GMS
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Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 1 of 28
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
A P P E A R A N C E S
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For the Plaintiffs:

American Civil Liberties Union Foundation
Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
39 Drumm Street
San Francisco, California 94111
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Covington & Burling, LLP

By: Stanley Young, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
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For the Defendant Maricopa County:

Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
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Jones, Skelton & Hochuli, PLC

By: A. Melvin McDonald, Jr., Esq.
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
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For the Movants Christine Stutz and Thomas P. Liddy:

Broening, Oberg, Woods & Wilson, PC
By: Terrence P. Woods, Esq.
P.O. Box 20527
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For the Movants Maricopa County Attorney's Office and Maricopa

County Attorney William Montgomery:
Ridenour Hienton, PLLC
By: April M. Hamilton, Esq.
Chase Tower
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Melendres v. Arpaio, 10/26/15 Telephonic Conference
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A P P E A R A N C E S
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For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division
By: Paul Killebrew, Esq.
950 Pennsylvania Avenue NW, 5th Floor
Washington, D.C. 20530
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U.S. Department of Justice - Civil Rights Division

By: Cynthia Coe, Esq.
601 D. Street NW, #5011
Washington, D.C. 20004
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For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
By: Dane A. Dodd, Esq.
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P R O C E E D I N G S
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THE COURT:
Please be seated.
THE CLERK:
This is civil case number 07-2513,
Melendres, et al., v. Arpaio, et al., on for telephonic
conference.
Counsel, please announce your appearances.
MR. YOUNG:
Good morning, Your Honor.
THE COURT:
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MS. WANG:
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Covington Burling, for plaintiffs.
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MR. POPOLIZIO:
Cecillia Wang of
Good morning.
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Joe
Popolizio on behalf of Sheriff Arpaio.
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MR. MASTERSON:
for Sheriff Arpaio.
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THE COURT:
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John Masterson
THE COURT:
Good morning.
MR. WOODS:
Good morning, Judge.
Mel McDonald
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Terry Woods for
Stutz and Liddy.
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THE COURT:
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MS. HAMILTON:
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making a special appearance for Sheriff Joe Arpaio.
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Good morning to you both.
MR. McDONALD:
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11:10:54
the ACLU for plaintiff.

THE COURT:
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Stanley Young,
Good morning.
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Good morning.
April
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Hamilton for the Maricopa County Attorney's Office and Maricopa
County Attorney William Montgomery.
THE COURT:
MR. WALKER:
Good morning.
behalf of Maricopa County.
THE COURT:
MS. COE:
Good morning.
behalf of the United States.
THE COURT:
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Good morning.
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MR. KILLEBREW:
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Killebrew for the United States.

THE COURT:
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MR. DODD:
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Richard Walker on
Cynthia Coe on
Paul
Good morning.
Dane Dodd on
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behalf of former Chief Brian Sands.
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THE COURT:
Good morning.
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All right.
I'm here at the request of the parties.
Do we have anybody else?
Apparently, we've hit a snag in what I had hoped had been an
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understood schedule for discovery?
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Yes, Your Honor.
Thank you very
We did have a schedule for document production by
Mr. Zullo that would be completed on October 20 followed by a
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deposition that was scheduled for October 23.
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much.
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This is Stanley Young.
Let me start off, since I asked for the call.
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MR. YOUNG:
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We did receive a number of documents actually before
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the 20th.
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Thank you to Mr. Popolizio and his office for that.

THE COURT:
Do you know, Mr. Young, you're very
difficult to hear.
Could you please speak up?
We do have
persons in the courtroom who may wish to hear you.
MR. YOUNG:
Is this better if I speak at this volume?
THE COURT:
Yes, you can be heard.
MR. YOUNG:
Okay.
We had a schedule that called for document production
I apologize.
I'll start over again.
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by Mr. Zullo that would be completed on October 20th followed
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by a deposition on October 23.
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documents before the 20th.
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document last week stating that there were additional documents
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that he would -- that were in his possession that would not be
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produced --
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However, Mr. Popolizio filed a
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Yes, I have read that.
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MR. YOUNG:
Yes.
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THE COURT:
We filed and then served a subpoena
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on the Jones, Skelton firm.
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objection to that that cites the same concerns by Mr. Zullo
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that were reflected in the filing.
Subsequently, there's been an
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We then had a deposition, or a start of a
deposition --
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We did receive a number of
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Thank you.
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Yes.
THE COURT:
Can I interrupt?
Can I interrupt,
Mr. Young?
MR. YOUNG:
Yes.
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THE COURT:
Did you have the deposition without
receiving the documents?
MR. YOUNG:
We received some documents but --
THE COURT:
No, no, no.
I understood you received
some documents, but I'm talking about the documents that
Mr. Masterson and Mr. Popolizio indicated they would not
produce because of Mr. Zullo's instruction not to do so.
MR. YOUNG:
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MR. YOUNG:
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those documents.
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THE COURT:
All right.
Thank you.
I did send to your assistant, Your Honor, with copies
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Basically, Mr. Zullo refused to answer substantive questions,
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saying that he wanted to talk to an attorney and have the
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advice of an attorney before he did so.
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to the parties, the transcript of what took place on Friday.
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He said that prior to two days before the deposition,
he had understood that the Jones, Skelton firm would be
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representing him; that some issue arose as to that that caused
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him some concern.
He indicated that he would attempt yesterday
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matter; that he did intend to answer questions, but just was
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not able to on Friday.
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to meet with an attorney who might represent him in this
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-- so we started the deposition without
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We have not received those documents
yet --
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So I don't know whether there's any information among
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any of the other participants on this call as to that.
obviously have a concern about the effect on the schedule of
this development, and because it does affect the schedule, we
wanted to inform the Court of what is happening and get the
Court's guidance.
We
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THE COURT:
Mr. Masterson and Mr. Popolizio, who's speaking?
MR. POPOLIZIO:
Very good.
I'll speak, Your Honor.
THE COURT:
This is Joe
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Popolizio.
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Well, Mr. Popolizio, you represented to me
that you were representing Mr. Zullo, at least for purposes of
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Lang and 4.2, and so, I mean, it's kind of like being -- you
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can't be half in or half out: you're either representing him or
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you're not representing him.
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representing him on the basis that Mr. Zullo's statements
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and/or admissions could be imputed to the organization.
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And I assume that you were
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MR. POPOLIZIO:
Well, Your Honor, no, because I
specifically stated that I represent Sheriff Arpaio, and
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inasmuch -- I would represent Mr. Zullo inasmuch as I protect
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the privilege Sheriff Arpaio is a holder of.
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He wished to
comply with the subpoena --
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Have you reversed field on that?
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THE COURT:
Now, wait a minute.
I asked you
specifically for Lang purposes and you said yes, right?

MR. POPOLIZIO:
For Lang, it's about ex parte
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communications, I believe, Your Honor.
THE COURT:
It is.
And it is because -- as I
understood Lang, at least in shorthand -- Mr. Young couldn't
speak with Mr. Zullo if in fact his statements or admissions
could be imputed to the organization.
the organization?
MR. POPOLIZIO:
THE COURT:
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MR. POPOLIZIO:
Your Honor.
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THE COURT:
from?
Well, where do you get that understanding
Can I have the authority, please?
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MR. POPOLIZIO:
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works, and --
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My understanding is that I am not,
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Then you're representing
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Mr. Zullo, are you not?
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I cannot take that position.
All right.
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11:17:28
With all due respect, Mr. Popolizio, I
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THE COURT:
Well, from my understanding of how it
don't mean to make light of your understanding, I want to
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understand it completely, but as I sometimes tell my law
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clerks, it's not that I'm uninterested if their impressions; I
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authority.
MR. POPOLIZIO:
Well, the legal authority that I
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would -- I would cite, or at least what I thought was
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controlling, Your Honor, would be --
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want legal authority to back it up, and so I want your legal
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Is it now your position that they cannot be imputed to
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THE COURT:
Well, let's look at 4.2.
in front of you?
MR. POPOLIZIO:
THE COURT:
I do not, Your Honor.
MR. POPOLIZIO:
THE COURT:
MR. POPOLIZIO:
I am not.
I am at a client's office, Your Honor.
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That's why I wanted to do this at
1:00, but that wasn't a possibility.
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THE COURT:
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day.
I'll read it to you.

MR. POPOLIZIO:
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THE COURT:
I understand that.
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It says:
"In representing a client, a
lawyer shall not communicate about the subject of the
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representation with a party the lawyer knows to be represented
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by another lawyer in the matter unless the lawyer has the
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consent of the other lawyer or is authorized by law to do so."
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And then the comment goes into whether or not
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statements can be attributed to the party by -- statements of
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those to you.
"In the case of an organization, this rule prohibits
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communications by a lawyer for one party concerning the matter
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and representation with persons having managerial
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the person can be attributed to the party; I'll be glad to read
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Oh, I'm sorry, but I have sentencing all
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Where are you?
I don't have that with me.
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It won't be
Are you in your law office?
Do you have it
Well, why don't you pull it?
hard for you to find.
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responsibility on behalf of the organization and with any
person whose act or omission in connection with that matter may
be imputed to the organization for purposes of civil or
criminal liability, or whose statement may constitute an
admission on the part of the organization.
employee of the organization is represented in the matter by
counsel, the consent by that counsel to communication will be
sufficient for purposes of this rule."
If an agent or
And so I must say that I assumed that what you were
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telling me is that because that was the case with Mr. Zullo,
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you were asserting the representational rights with respect to
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Mr. Zullo, and you're telling me now that's not what you were
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saying.
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that's not what I was saying.
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or wrong, what I meant when I stated what I stated last time we
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were on the phone.
I've explained, no matter right
THE COURT:
Well, let me have a full understanding of
that so -- so I cut you off a little bit because I wanted legal
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authority, and if you don't have any, then let me understand
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MR. POPOLIZIO:
My understanding of what I was doing,
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Your Honor, is that I represent Sheriff Arpaio.
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that Mr. Zullo was served the subpoena, that I was going to
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review whatever he produced in response to the subpoena for
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what your understanding is of what you were doing.
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I'm telling you, Your Honor, that
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MR. POPOLIZIO:
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To the extent
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privilege, work product, and then produce it on a rolling basis
to the plaintiffs instead of waiting until the 20th, which we
did.
plaintiffs in response to the subpoena, the authority to do
that was revoked by Mr. Zullo and he did not want those to go,
and he cited Fourth Amendment, Fifth Amendment, and due process
protections that he claimed that he has, and he is, as of -- as
late as last night had asserted that also.
available, I know, to participate in this, because he is --
And at some point during our rolling out documents to
He is not
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right now I believe he is on a plane.
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that, but --
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THE COURT:
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MR. POPOLIZIO:
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THE COURT:
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MR. POPOLIZIO:
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THE COURT:
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MR. POPOLIZIO:
So I inform the Court of
To Phoenix, Your Honor.
From where?
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THE COURT:
I believe Georgia.
That is my understanding.
All right.
So let me just clarify what
you're telling -- what you were trying to tell me and what I
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misunderstood before.
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You don't claim any right to represent Mr. Zullo.
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Is
that correct?
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And he was seeking counsel in Georgia?
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MR. POPOLIZIO:
Your Honor, I did not, and my
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reservation is if I was wrong, then I don't want to do anything
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to jeopardize anything.
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Where is he on a plane to or from?
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I did not claim that I was
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representing Mr. Zullo.
THE COURT:
All right.
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Apparently, then, you have
reviewed for privilege certain materials, and you have withheld
some materials from Mr. Young based on the instruction you
received from Mr. Zullo but not based on your conclusion that
they were attorney-client privileged, is that correct?
MR. POPOLIZIO:
THE COURT:
Yes.
All right.
I would like you to make a
privilege log and identify every communication or document
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which you're claiming is privileged and maintain copies of
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those documents and provide a copy of the privilege log to all
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parties.
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All right?
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MR. POPOLIZIO:
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MR. YOUNG:
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We did receive a privilege log that had one document
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Your Honor, may I be heard on that issue?
on it that states it's in between Ms. Iafrate's office and the
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MCSO.
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his filing with the Court, which he was withholding based on
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Mr. Zullo's objection, are not on that log --
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THE COURT:
Well, that's what I just told him he has
basis.
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MR. YOUNG:
Yes.
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THE COURT:
All right.
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to identify on a docu- -- or communication-by-communication
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The other documents that Mr. Popolizio referred to in
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Yes, sir.
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Thank you.
And are you clear what I'm
directing you to do, Mr. Popolizio?
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MR. POPOLIZIO:
THE COURT:
Yes, Your Honor.
All right.
that.
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So I'm going to ask you to do
And then if Mr. Zullo's taking the position that he's
not representing Mr. Zullo, then I think you can re-notice up
his deposition.
been quite a while ago, there is no assertion that the Fifth
Amendment applies to documents.
Mr. Zullo a chance to say that the Fifth Amendment applies to
I will say the last I looked at this, and it's
document production.
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But I'm willing to provide
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a chance to make that assertion as well, but I'm not going to
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give him very long.
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MR. YOUNG:
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already looked at this for narrowed scope, but I will give him
Yes, Your Honor.
I would note one -- if I
may -- one additional thing, which is that the documents in the
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hands of the Jones, Skelton law firm, I don't believe their
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production via our subpoena would implicate a Fifth Amendment
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concern, and I would cite Fisher versus United States in that
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regard, which is --
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I can't imagine how the Fourth Amendment applies, I've
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THE COURT:
You're being very faint again, Mr. Young.
MR. YOUNG:
Oh, I apologize.
Let me start all over
again.
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Jones, Skelton law firm which we have now subpoenaed, I don't
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think those, the production of those documents from the Jones,
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The documents that are currently in the hands of the
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Skelton law firm would implicate Mr. Zullo's Fifth Amendment
concerns.
Fisher versus United States, 425 U.S. 391 (1976).
And I would refer the Court and the parties to
THE COURT:
Okay.
Well, I will take a look at that.
And then if you want -- I don't know that you're going to
respond, Mr. Popolizio.
because you're not representing Mr. Zullo, is that correct?
MR. POPOLIZIO:
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11:25:13
It's my understanding that you won't
My understanding -- that was my
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understanding, Your Honor, but I also just stated that if I was
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wrong -- I'm going to have to confer with my co-counsels in
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this to determine where I'm going from here.
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you've stated to do the privilege log and to provide these, but
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I need to speak with my partners on this.
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All right.
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THE COURT:
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I know that
I'm also directing you to
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maintain copies of all communications that you've been provided
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by Mr. Zullo.
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I guess I'm going to -- what do I need to do, then?
guess what I will say is, Mr. Young, it seems to me that you
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can re-notice up the deposition of Mr. Zullo, and he doesn't
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have any basis on refusing to be imposed because he's not
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represented, and he's been well aware that he was going to be

deposed in this matter and that subpoenas were going to be
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requested, that subpoenas were issued for his information.

And I will say, Mr. Popolizio, that I did read the
transcript of the deposition.
I gather that he made some
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objection that he was under the impression that he was going to
be provided representation by the County and that he wasn't
aware of that until two days before.
Mr. Popolizio, if you want to address that.
MR. POPOLIZIO:
I don't know,
I was not at the deposition, Your
Honor, and I did not see the transcript.
MR. YOUNG:
Actually, Your Honor, if I could -- this
is Stanley Young.
two days before the deposition, he thought that he would be
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I believe what Mr. Zullo said was that until
provided counsel, and then that was either with Jones, Skelton
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directly or otherwise through the County, and that he found out
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to his surprise two days before the deposition that in fact he
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was not being provided counsel, and that's why he went to
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Georgia to seek out counsel.
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THE COURT:
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All right.
Well, nothing is going to
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prevent you, then, from re-noticing his deposition and taking
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it.
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I'll expect you to comply with ethical rules, which I am sure
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you will, in taking that deposition.
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appropriately noticed, given the current schedule.

MR. YOUNG:
We tried to do that on Friday, Your Honor,
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and -- now, I don't know whether he has succeeded in retaining
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counsel.
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deposition again would give us the same result, which he would
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But let's talk about when that would be best and most
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Whether he has counsel or whether he doesn't, of course,
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If he has not, then I think that having him come for

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refuse to answer questions based on his concern about possible
criminal issues.
So we do have that issue.
We also have, as plaintiffs, Your Honor, a concern
about the schedule in the case.
hold up the conclusion of the current order to show cause
proceeding.
Court has and will have plenty of information on which to
proceed.
useful, and it may be that it is relevant to some other things
We don't really want this to
We do have some remedy issues that we think the
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We do think that Mr. Zullo's testimony will be
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that we may need to do or see fit to ask the Court to do
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subsequently.
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he will answer questions, I'm not sure we would want that to
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unduly delay the conclusion of the current OSC proceeding.
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counsel and therefore there's a delay in any deposition where
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11:29:02
So that is an issue on which we do seek the Court's

guidance, and I don't have any information from Mr. Zullo now
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as to whether he has succeeded in obtaining counsel, and if so,
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when he would be willing to come in for a deposition.
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don't really think that a repetition of Friday where he is
And I
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under a trial subpoena as well, and he simply refuses to answer
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questions, I don't know -- well, it won't give the Court any
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more information; it won't give us any more information.
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subpoenaed in -- he's actually under a subpoena now, and he's
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But if it takes a while for Mr. Zullo to obtain
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THE COURT:
Well --
11:29:43

MR. McDONALD:
Mel McDonald.
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Your Honor?
Your Honor, this is
Can I address this issue briefly?
THE COURT:
MR. McDONALD:
You may.
I conferred by e-mail with an attorney
in Atlanta, Georgia, who Mr. Zullo apparently met with
yesterday.
and indicated to him that I would share the call-in information
if he was going to be involved.
morning that indicated that -- my understanding is that he
11:29:54
I had encouraged him to join this conference call
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I got an e-mail back this
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would not be joining the call, and it was my impression that he
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has not been retained by Mr. Zullo.
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I know that his interest, his desire, was to have the
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Court order Mr. Zullo to testify under 18 U.S.C. 6002, use
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immunity grant.
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I did converse by e-mail, not in person, with this attorney in
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Georgia.
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or not, but I do know that he had an interest in this, which
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makes sense to me.
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testimony, and the court order requiring him to testify would
20
eliminate any objection that he could possibly have.
TH
11:30:49
OF
THE COURT:
I think the sheriff would like Mr. Zullo's
11:31:16
Well, thank you, Mr. McDonald.
I'll tell you, this is what I'm inclined to do.
IEN
22
And I just wanted to share with the Court that
And I don't know whether he will be coming on board
DS
21
11:30:20
believe that Mr. Zullo has had plenty of opportunity to obtain
24
counsel if he wants it, and so I'm disinclined -- while I am
25
inclined to give him reasonable opportunity to obtain counsel,
FR
23
11:31:36
19
BO
W
. CO
M

I'm disinclined to give him much more than that.
And so if you feel like, Mr. Young, you're not going
to get anything other than an invocation of the Fifth Amendment
to your question, then you can decide whether or not you want
to take his deposition or not.
11:31:54
I will note that it's my understanding that I can draw
a negative inference in civil proceedings to an invocation of
the Fifth Amendment in civil proceedings.
going to sit there -- while I'm not going to require Mr. Zullo
10
to repeatedly invoke the Fifth Amendment, I think that certain
11
questions can be asked to Mr. Zullo in which -- which may be
12
relevant to whatever you want to establish through his
13
testimony, which would allow me then to draw a negative
14
inference if he invokes the Fifth Amendment, or otherwise gives
15
him the opportunity to answer the question.
TH
EF
OG
And while I'm not
16
18
proceeding that isn't criminal without the input of the
19
prosecutors, and they have not -- I mean, while I invited them
20
to be involved in this proceeding if they wish to be, just as
DS
OF
and I may do that; but I'm unlikely to grant use immunity in a
wish to be, they haven't been present, and I don't think
23
they're really much interested in this case unless and until I
24
do a criminal referral, so I'm unlikely to grant any sort of
25
use immunity for testimony.
FR
11:32:50
I've invited Mr. McDonald and others to be involved if they
IEN
22
11:32:28
I haven't looked at the use immunity grant statute,
17
21
11:32:09
I mean, if you're asking my
11:33:07
20
BO
W
. CO
M

guidance, those are my inclinations as I sit here as to how to
proceed.
MR. YOUNG:
Well, as to timing -- and Mr. McDonald, thank you for
Yes, Your Honor.
Thank you.
that information -- we can certainly notice up his deposition
again.
prepared to do it on Friday, and then we would call him in.
It may be -- well, we could do it any time, we were
There is a witness scheduling issue since I think we
EF
OG
might be poised to complete our case for plaintiffs -- and I
10
would invite Ms. Wang to speak on this -- on Wednesday.
11
have, I think, Olson, Mackiewicz, and the completion of Bailey
12
left, and with that we may be done.
13
We
15
I'm not sure we'll be able to squeeze in a deposition and also
16
then bring him in to testify at the hearing for Wednesday.
TH
testify at the hearing out of order or do something, because
17
MS. WANG:
19
All right.
Just to -- sorry, Your Honor.
Go ahead.
DS
THE COURT:
MS. WANG:
23
Who is this?
This is Cecillia Wang.
11:34:29
I was just going to
flesh out what Mr. Young said.
IEN
22
11:34:16
Well --
OF
THE COURT:
18
21
11:33:50
So it may be that we would need to have Mr. Zullo
14
20
11:33:27
We advised the plaintiff last week that we do not
intend to call Deputy Garcia or Mr. Soto Gonzalez.
25
two of the last witnesses in plaintiffs' case in chief.
FR
24
Those were
We've
11:34:50
21
BO
W
. CO
M

decided not to call them, and that's why we do anticipate that
we will be resting earlier, about a day earlier than we
anticipated.
THE COURT:
All right.
Well, it does seem to me that
there isn't any -- I mean, Mr. Popolizio, I'll allow you to
think about this, but it doesn't seem to me, in the interest of
allowing Mr. Zullo a few additional days if he needs it to try
to arrange counsel, but not many, it doesn't seem to me to harm
your case.
EF
OG
At least much of your rebuttal case doesn't have
10
anything to do -- or much of your case; I shouldn't say
11
"rebuttal case" -- doesn't seem to me to have anything to do
12
with Mr. Zullo, but it was designed to demonstrate the
13
MCSO's -- the extent to which it's gone to comply with the
14
Court's order.
15
Mr. Zullo's testimony, so I don't know why we couldn't take him
16
out of order in light of the circumstances.
17
TH
OF
THE COURT:
11:35:39
No, Your Honor, I don't.
Okay.
Well, it seems to me that
DS
plaintiffs could rest their case and then defendants could
that's what needs to happen.
23
MR. McDONALD:
24
other comment.
25
invoke.
FR
11:35:53
begin their case and we can take Mr. Zullo out of order, if
IEN
22
I'm not sure that any of that really bears on
MR. POPOLIZIO:
19
21
11:35:22
Do you have any immediate reaction to that?
18
20
11:35:03
Judge, Mel McDonald again, just one
It was my impression that Mr. Zullo is going to
When you speak about the negative inference, I'm
11:36:11
22
BO
W
. CO
M

hoping that you're interpreting that as only against Mr. Zullo,
not against the sheriff, because the sheriff actually wants his
testimony, and the way to get that is through the order of the
Court under use immunity to go forward.
If the government really isn't interested in a
prosecution, anyway, the whole thing that triggered this was a
footnote in the memorandum from the plaintiffs that gave all of
these potential crimes that he might be facing, and it would, I
think, go a long way to solving everybody's problem if he
10
EF
OG
appeared and you ordered him to testify.
11
11:36:49
I don't think the Department of Justice has a real
12
interest in pursuing Zullo.
13
of his testimony.
14
and he's compelled to answer.
15
THE COURT:
And this way, we get the benefit
TH
There's no negative inferences to anybody
Well, you can -- I mean, we've got the
Department of Justice on the line; you can discuss that with
17
them and I'll certainly consider that option.
18
at the statute in the meantime and we can discuss that first
19
thing tomorrow morning if you wish to.

But otherwise, you know, I think -- I'm not sure that
your briefing on the issue of how far the negative inference
23
can go.
24
question posed presents is an inference that I can draw, but
25
I'm not -- you know, I'm not interested in drawing any more
FR
11:37:20
the negative inference is limited, although I certainly welcome
IEN
22
11:37:04
I'll take a look
DS
21
OF
16
20
11:36:30
But in terms of -- it seems to me that whatever the
11:37:45
23
BO
W
. CO
M

negative inferences than are necessary, if any.
MR. McDONALD:
Judge, it's my understanding that the
fear of Zullo is the potential criminal liability relating to
his relationships with Montgomery, not the sheriff, and that's
why on the negative inference I was concerned that if he -- if
you don't order him to testify and you do a negative inference,
that I felt it would be unfair to draw it against the sheriff,
because the sheriff has authorized me to ask you to order him
to testify --
EF
OG
10
THE COURT:
11
MR. McDONALD:
12
out.
13
THE COURT:
Well --
11:38:20
-- because he would want the testimony
Well, I mean, we can wait and see how this
all rolls out; it may not be an issue.
15
you can discuss that with the Department of Justice, whose
16
representatives are on the line, and see if you can arrive at
17
some sort of understanding about whether or not they have any
18
desire to pursue Mr. Zullo.
19
person for criminal contempt; nor, at least to date, in the
that they may be subject to a criminal contempt notice.
But of
23
course, I haven't heard his testimony yet, so I'm really
24
reluctant in this case to proceed on facts that I just do not
25
know.
FR
11:38:51
testimony has testimony developed, as it has with some others,
IEN
22
11:38:33
I certainly haven't noticed him up as a possible
DS
21
But in the meantime,
OF
TH
14
20
11:38:02
11:39:11
24
BO
W
. CO
M

And I certainly understand Mr. Zullo's desire to
proceed cautiously, and I'm willing to accommodate that within
limits.
about use immunity unless and until you've discussed that with
the Department of Justice and I've looked at it myself.
I said, we can discuss that if you wish tomorrow morning.
But I'm not going to necessarily make any decisions
MR. YOUNG:
Your Honor, this is Stanley Young.
So as
We
would certainly like the opportunity at some appropriate time
to address negative inferences, should the need for that or the
EF
OG
10
occasion for that arise.
11
THE COURT:
11:39:47
Well, and certainly there will be
12
occasion, probably there will be an occasion if in fact anybody
13
ever invokes the Fifth Amendment.
It has not yet been invoked.
14
MR. YOUNG:
15
On the issue of scheduling, obviously we would like to
TH
Yes, Your Honor.
16
have the documents that we have not yet received prior to the
17
deposition.
18
whether there could be a schedule for the log that
19
Mr. Popolizio's office will prepare, and then for any motion
20
relating to the production of those documents.
OF
THE COURT:
So I wonder
How many documents are there, Mr. Popolizio?
24
MR. POPOLIZIO:
FR
11:40:25
Well, I'm going to make it a very
23
25
11:40:01
expedited schedule.
IEN
22
That would be the most efficient way.
DS
21
11:39:28
I have no idea, Your Honor.
are -- it's a substantial amount, I believe.
There
11:40:36
THE COURT:
So how long is it going to take you to
prepare that privilege log?
MR. POPOLIZIO:
Two days?
Sure.
I don't think it will take
long, Your Honor.
THE COURT:
MR. POPOLIZIO:
goes both ways also.
25
BO
W
. CO
M

All right.
So I'll give you --
We're in trial, and I understand it
I will endeavor to get it done.
THE COURT:
privilege log to all parties.
Okay.
I'll give you two days to give the

So what is today, the 26th?
EF
OG
10
I'll have you have that privilege log to them by the 28th.
11
And I will direct Mr. Zullo's attorney, if he's got
12
one, to assert any Fourth or Fifth Amendment privileges that
13
apply to those documents by the 30th.
14
will be due by the 3rd of November.

MR. McDONALD:
Judge, to communicate -- this is
16
Mel McDonald.
17
to the Atlanta attorney?
18
number, but I want to make sure, because you've given him a
19
deadline, and I want to make sure Zullo gets that information.
21
OF
THE COURT:
That would be great.
MR. McDONALD:
24
THE COURT:
FR
11:41:54
attorney?
23
25
I don't even have Zullo's phone
Would you like me to reach out to the Atlanta
IEN
22
11:41:38
To communicate that, do you want me to reach out
DS
20
11:41:06
And then the responses
TH
15
11:40:49
Atlanta attorney.
What would you like me to do?
Go ahead and communicate that to the
And Mr. Zullo, it is my understanding,
11:42:03
remains the director of the Cold Case Posse at MCSO, and so I
imagine that you can communicate with him through the MCSO.
26
BO
W
. CO
M

And I'll direct you to do that as well, Mr. Popolizio.
Communicate those deadlines to Mr. Zullo.
MR. POPOLIZIO:
THE COURT:
Absolutely.
11:42:27
Mr. Zullo, if you're going to take the
position that you do represent -- Mr. Popolizio, I might be
mixing up my names here -- if you're going to take the position
now that you do represent Mr. Zullo, I'm going to require you
10
EF
OG
to tell me that within today.
11
MR. POPOLIZIO:
12
THE COURT:
13
today?
14
Yes, Your Honor.
Anything else that we need to address
Yes, for plaintiffs, just to clarify, the
TH
MR. YOUNG:
November 3rd date for response that you mentioned, Judge, is
16
that a deadline for a motion to compel, or -- and then how do
17
we --
OF
15
18
THE COURT:
already requires production, right?
20
request that there be some sort of protective order, I'm giving
DS
So if they're going to
order.
If they don't file a motion for protective order, then
23
the documents will be order -- I will order the documents to be
24
provided to you.
25
protective order.
FR
11:43:12
them till October 30th to file such a motion for protective
IEN
22
11:42:55
Well, it seems to me that the subpoena
19
21
11:42:43
So it will be a response to the motion for

11:43:34
MR. YOUNG:
MS. WANG:
Thank you.
27
BO
W
. CO
M

Your Honor, it's Cecillia Wang.
Just two
other issues, briefly.
think I stated a few minutes ago that we advised defendants of
our withdrawal of the two witnesses, Garcia and Soto Gonzalez,
last week.
First, just a minor correction.
It was actually, I think, the week before.
Second, Your Honor, it has come to our attention
recently that there are some documents relating to spreadsheets
prepared by Lieutenant Jakowinicz noting people who were
EF
OG
10
detained and not charged with any state crime during worksite
11
raids by the Criminal Enforcement Unit.
12
that Your Honor ordered to be produced on July 20th.
13
We've corresponded with defendants repeatedly since
15
and I understand that Ms. Iafrate is the one who will address
16
that for defendants.
17
raise that with the Court first thing tomorrow morning.
TH
then to try to get those particular spreadsheets to no avail,
THE COURT:
19
MS. WANG:
DS
THE COURT:
She is not on this call so we hope to
23
24
FR
25
All right.
Thank you.
I will expect that, then.
MR. POPOLIZIO:
IEN
22
11:44:40
OF
18
21
11:44:14
Those were documents
14
20
11:43:52
Anything else?
No, Your Honor.
MR. YOUNG:
Not from plaintiffs, Your Honor.
THE COURT:
Hearing nothing else, I'll see you all
tomorrow morning.
(Proceedings concluded at 11:45 a.m.)
11:44:54
28
BO
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. CO
M

1
2
C E R T I F I C A T E
3
4
5
6
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
11
15
16
17
18
2015.
20
21
IEN
22
DS
19
OF
DATED at Phoenix, Arizona, this 26th day of October,
23
24
FR
25
s/Gary Moll

Melendres # 1491 - Oct 28 TRANSCRIPT (Status Conference)

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Melendres # 1491 - Oct 28 TRANSCRIPT (Status Conference)

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1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres,

Joseph M. Arpaio, et al.,

BEFORE THE HONORABLE G. MURRAY SNOW

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 1 of 28

Proceedings taken by stenographic court reporter

For the Plaintiffs:

Covington & Burling, LLP

For the Defendant Maricopa County:

Jones, Skelton & Hochuli, PLC

For the Movants Christine Stutz and Thomas P. Liddy:

For the Movants Maricopa County Attorney's Office and Maricopa

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 2 of 28

For the Intervenor United States of America:

U.S. Department of Justice - Civil Rights Division

For Executive Chief Brian Sands:

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 3 of 28

This is civil case number 07-2513,

Melendres, et al., v. Arpaio, et al., on for telephonic

Counsel, please announce your appearances.

Good morning, Your Honor.

Covington Burling, for plaintiffs.

Good morning, Your Honor.

Good morning, Your Honor.

Popolizio on behalf of Sheriff Arpaio.

Good morning, Your Honor.

Good morning, Judge.

Terry Woods for

Stutz and Liddy.

Good morning, Judge.

making a special appearance for Sheriff Joe Arpaio.

Good morning to you both.

the ACLU for plaintiff.

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 4 of 28

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 5 of 28

Hamilton for the Maricopa County Attorney's Office and Maricopa

County Attorney William Montgomery.

Good morning, Judge.

behalf of Maricopa County.

behalf of the United States.

Killebrew for the United States.

Good morning, Your Honor.

Good morning, Your Honor.

Good morning, Your Honor.

behalf of former Chief Brian Sands.

I'm here at the request of the parties.

Do we have anybody else?

Apparently, we've hit a snag in what I had hoped had been an

understood schedule for discovery?

Yes, Your Honor.

Thank you very

We did have a schedule for document production by

Mr. Zullo that would be completed on October 20 followed by a

deposition that was scheduled for October 23.

This is Stanley Young.

Let me start off, since I asked for the call.

We did receive a number of documents actually before

Case 2:07-cv-02513-GMS Document 1491 Filed 10/26/15 Page 6 of 28

Thank you to Mr. Popolizio and his office for that.

Do you know, Mr. Young, you're very