Melendres # 1319 - D.Ariz. - 2-07-cv-02513 - 1319

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 1 of 11
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Cecillia D. Wang (Pro Hac Vice)

cwang@aclu.org
ACLU Foundation
Immigrants Rights Project
39 Drumm Street
San Francisco, California 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Daniel J. Pochoda
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Attorneys for Plaintiffs (Additional attorneys
for Plaintiffs listed on next page)
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
Plaintiff(s),
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v.
Joseph M. Arpaio, et al.,
Defendants(s).
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CV-07-2513-PHX-GMS
PLAINTIFFS MOTION TO
COMPEL TESTIMONY RE:
JULY 17, 2015 MEETING
AND MCSOS NONDISCLOSURE
OF THE 1500 IDS
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Additional Attorneys for Plaintiffs:

Andre I. Segura (Pro Hac Vice)
asegura@aclu.org
ACLU Foundation
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Priscilla G. Dodson (Pro Hac Vice)

pdodson@cov.com
Covington & Burling LLP
1201 Pennsylvania Avenue
Washington, DC 20004
Anne Lai (Pro Hac Vice)

alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
Jorge M. Castillo (Pro Hac Vice)

jcastillo@maldef.org
Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
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Telephone: (202) 662-5996

Facsimile: (202) 778-5996
Facsimile: (213) 629-0266
Stanley Young (Pro Hac Vice)

syoung@cov.com
Michelle L. Morin (Pro Hac Vice)
mmorin@cov.com
Hyun S. Byun (Pro Hac Vice)
hbyun@cov.com
333 Twin Dolphin Drive
Suite 700
Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Tammy Albarran (Pro Hac Vice)
talbarran@cov.com
Lauren E. Pedley
lpedley@cov.com (Pro Hac Vice)
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
Plaintiffs hereby move to compel Defendants and members of the Maricopa
County Sheriffs Office (MCSO) to respond to Plaintiffs questioning about (1)
discussions that occurred between MCSO personnel and counsel on Friday, July 17,
2015 regarding approximately 1,459 identification documents that had been turned in
by Sergeant Jon Knapp (hereinafter the 1,500 IDs); and (2) any other discussions
MCSO had with counsel regarding nondisclosure of the 1500 IDs to the Monitor team
in the lead up to the Monitors site visit on July 20-24, 2015. Counsel for Defendants
have instructed MCSO witnesses not to answer questions about this subject on grounds
of attorney-client privilege. Any privilege that may have existed in those
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communications, however, has been waived.
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I.
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Factual Background
On or around July 8, 2015, MCSO personnel in the Professional Standards
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Bureau (PSB) learned that Sergeant Jon Knapp had attempted to turn in a very large
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number of identification documents to Property and Evidence, apparently for
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destruction. Rough Dep. of Steve Bailey, Lai Decl. Ex. 1 (Bailey Dep.) at 161:2-21;
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Dep. of Kimberly Seagraves, Lai Decl. Ex. 2 (Seagraves Dep.) at 89:22-92:21.
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Given the history of problems involving the handling of identification documents by
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the MCSO in this litigation, Captain Bailey believed that the Monitor would want to
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know about this incident. Bailey Dep. at 164:6-15, 225:11-16, 235:19-25. Further, this
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Court had issued an order on February 12, 2015, of which PSB personnel were aware,
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that required Defendants to produce [c]opies of identification documents seized by
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MCSO personnel from apparent members of the Plaintiff Class. Doc. 881 at 2. See
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Seagraves Dep. at 117:4-119:1 (testifying that she was aware of the order when she
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learned of the 1500 IDs and believed, under the order, that IDs needed to be produced
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to Plaintiffs), 121:22-123:19 (order was discussed at July 17 meeting); Bailey Dep. at
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236:6-19. Captain Bailey of PSB began an initial investigation into Sgt. Knapp and the
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1500 IDs, but then, at the direction of Chief Deputy Gerald Sheridan, suspended the
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investigation. Bailey Dep. at 171:21-172:13, 224:25-225:4, Interview of Captain Steve
Bailey by Chief Donald Anders, Lai Decl. Ex. 3 (Bailey Monitor Interview Tr.) at
WAI 17014:7-17016:14.
On July 17, 2015, MCSO held a meeting to prepare for the Monitors site visit
scheduled for July 20-24, 2015. Bailey Dep. at 181:7-14 (characterizing meeting as a
rehearsal meeting for site visit), 183:2-12. Chief Deputy Sheridan, Captain Bailey,
Lieutenants Seagraves and Kratzer, Sergeants Bone, Sparman, and Bocchino, PSB
administrative assistant Lauren Sanchez, and Defendants counsel Michele Iafrate
were present at the meeting. Bailey Dep. at 181:7-9, 181:15-182:12; Seagraves Dep. at
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104:7-12. During the meeting, the subject of the 1500 IDs was discussed. Bailey Dep.
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at 181:7-9, 207:2-14, 210:5-212:18; Seagraves Dep. at 106:14-109:18.
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Subsequently, on July 20, 2015, MCSO, together with Ms. Iafrate, met with
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members of the Monitor team. Seagraves Dep. at 111:12-21. After discussing two
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other cases involving identification documents, Chief Sherry Kiyler of the Monitor
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team asked if there were any other identifications that had been discovered.
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Seagraves Dep. at 88:11-25 (describing other ID cases), 111:22-112:13 (describing
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colloquy with Kiyler on July 20). Captain Bailey responded no. Seagraves Dep. at
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112:14-20, Bailey Dep. at 224:10-11. Lieutenant Seagraves acknowledged in her
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deposition testimony that this statement was not accurate at the time. Seagraves
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112:24-113:6.1
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Captain Bailey testified that he had been directed not to disclose the existence
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of the 1500 IDs to the Monitor team at the July 17 meeting. Bailey Dep. at 199:10-16,
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204:5-14. However, he stated that neither Chief Deputy Sheridan, nor the lieutenants
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Captain Bailey testified at his deposition that Chief Kiylers question was whether
there were any other pending cases involving IDs. Bailey Dep. at 224:6-14. He
testified that he stands by his answer to Chief Kiyler that there were none. Bailey Dep.
224:17-225:22.
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present, gave the direction, and no one else at the meeting would have given such a
direction. Bailey Dep. at 198:10-202:18. When Captain Bailey was asked if Ms. Iafrate
had given the instruction during his deposition, defense counsel asserted privilege and
instructed Captain Bailey not to respond. Bailey Dep. at 204:15-28. Similarly, during
Lt. Seagraves deposition, she testified that a direction was given not to disclose the
IDs, but that neither Captain Bailey nor any other MCSO personnel gave the direction.
Seagraves Dep. at 115:23-117:3. Defense counsel instructed her not to answer
questions about the instruction and who gave it. Seagraves Dep. at 115:10-20.
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At the close of Lt. Seagraves deposition, Charles Jirauch, who represents

Maricopa County, elicited the following testimony from Lt. Seagraves:
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Q. Okay. And let me talk about one other issue that came up, and
that's the 1500 IDs and the conversation on July 17th among the
employees, the other deputies, and -- and sergeants, et cetera, about
those IDs. And then my question to you is, did you hear anything
from the sheriff's office suggesting that they wanted to hide or
destroy those, permanently hide or destroy those IDs?
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A. No.
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Q. Nothing at all?
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A. No.
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Q. So what you heard, and correct me if I'm wrong, is conversation

about, we don't know what we got here, and we got to figure it out.
Is that what you heard?
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A. Yes.
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Seagraves Dep. at 315:6-21.2
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Though counsel for Maricopa County conducted this portion of the examination,
counsel for Sheriff Arpaio was also present and did not object.
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II.
Argument
The attorney-client privilege is strictly construed and the burden of proving
that it applies rests with the party asserting it. Weil v. Inv./Indicators, Research &
Mgmt., Inc., 647 F.2d 18, 2425 (9th Cir. 1981). In this case, Defendants have waived
any privilege that existed as to communications about the 1500 IDs at the July 17,
2015 meetingas well as any other communications with counsel about nondisclosure
of the IDs to the Monitor teamby voluntarily disclosing the content of counsels
advice and statements of MCSO personnel during the July 17 meeting.3
A.
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Defendants waived any attorney-client privilege by disclosing the

contents of counsels advice on July 17, 2015
It is well established that voluntary disclosure of privileged communication

constitutes a waiver of privilege, not only as to the communication that is disclosed,
but as to all other communications on the same subject. See United States v. Richey,
632 F.3d 559, 566 (9th Cir. 2011) (Voluntary disclosure of privileged
communications constitutes waiver of the privilege for all other communications on
the same subject.); In re Sealed Case, 877 F.2d 976, 980-981 (D.C. Cir. 1989)
(disclosure of one of six documents related to same subject matter waived disclosure to
all). Federal Rule of Evidence 502(a) provides where that a disclosure made during a
federal proceeding waives attorney-client privilege, the waiver extends also to
undisclosed communications if (1) the waiver is intentional, (2) the disclosed and
undisclosed communications or information concern the same subject matter; and (3)
they ought in fairness to be considered together. Fed. R. Evid. 502(a); see also Chiron
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By filing this motion, Plaintiffs do not waive any other arguments, based on positions
Defendants may take in the future or additional information that may come to light,
including that Defendants have waived attorney-client privilege by relying on advice
of counsel as a defense, see Rock River Commcns, Inc. v. Universal Music Grp., Inc.,
745 F.3d 343, 353 (9th Cir. 2014), or that any attorney-client communications on this
subject are discoverable under the crime-fraud exception, see In re Grand Jury
Proceedings, 87 F.3d 377, 381 (9th Cir. 1996).
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Corp. v. Genentech, Inc., 179 F. Supp. 2d 1182, 1186 (E.D. Cal. 2001) ([T]he scope
of the waiver is governed by a rule of fairness.) (internal quotation omitted).
As Defendants have attempted to do before in this lawsuit, they seek to gain an
improper advantage here through a selective waver. Both Captain Bailey and Lt.
Seagraves reported that they were advised during the July 17, 2015 meeting not to
reveal their discovery of the 1500 IDs to the Monitor team during the site visit meeting
on July 20. Supra at 2-3. They also reported that this direction did not come from any
other MCSO personnel. Id. The only other person in the room was Ms. Iafrate. Id.
Though Defendants continue to assert privilege over who gave the direction, the
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identity of the speaker in an attorney-client communication is not itself privileged. For
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example, courts have held that, under Fed. R. Civ. P. 26(b)(5), that when a party
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withholds otherwise discoverable information on grounds of privilege, the party must
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provide a detailed privilege log that consists of a description of responsive material
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withheld, the identity and position of its author, the date it was written, the identity and
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position of all . . . recipients, and other information. United States v. Union Pac. R.
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Co., No. CIV06-1740FCDKJM, 2007 WL 1500551, at *3 (E.D. Cal. May 23, 2007)
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(emphasis added); see also Robinson v. Cnty. of San Joaquin, No. 2:12-CV-2783 MCE
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GGH, 2014 WL 3845775, at *1 (E.D. Cal. July 31, 2014) (citing W.W. Schwarzer,
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A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial 11:1919). It is
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instead the underlying advice that is privileged.
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Defendants have effectively disclosed the core of the advice that Ms. Iafrate
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gave MCSO during the July 17 meeting. Having opted to disclose the substance of
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that instruction from her, Defendants cannot now obstruct Plaintiffs discovery into the
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details of what she said or what explanation or qualifications she might have
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communicated in connection with her instruction by refusing to confirm that it was
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Ms. Iafrate who gave the direction. There is no question here that the disclosure of Ms.
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Iafrates instruction was intentional and that Plaintiffs seek to question MCSO
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witnesses on information about the same subject matter as the communications that
were disclosed, i.e., whether the existence of the 1500 IDs should be revealed to the
Monitor team. As the Ninth Circuit has made clear, a party may not use attorney-client
communications both as a sword and a shield. Chevron Corp. v. Pennzoil Co., 974
F.2d 1156, 1162 (9th Cir. 1992). Fairness also requires that the disclosed and non-
disclosed information be considered together.
B.
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Defendants waived any attorney-client privilege by selectively

disclosing discussions with counsel about the 1500 IDs on July 17,
2015
Attorney-client privilege has been waived for the additional reason that
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Defendants have selectively disclosed statements made by MCSO personnel in Ms.
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Iafrates presence during the July 17, 2015 meeting.
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During Lt. Seagraves deposition, defense counsel elicited testimony from Lt.
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Seagraves that she did not hear anything from her colleagues at MCSO on July 17
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suggesting that they wanted to . . . permanently hide or destroy those IDs, only
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statements to the effect of we dont know what we got here, and we got to figure it
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out. Seagraves Dep. at 315:6-21. The goal of that testimony was to imply that there
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was no wrongdoing on the part of the Sheriffs Office. Ms. Iafrate was present at the
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meeting during this discussion. Though Defendants counsel had previously asserted
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privilege over statements made by MCSO personnel about the IDs in the meeting
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based on the fact that Ms. Iafrate was present and there to render legal advice, see, e.g.,
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Bailey Monitor Interview Tr. at WAI 17018:22-17020:20; Seagraves Dep. at 109:6-16;
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see also Bailey Dep. 201:7-184, during Lt. Seagraves deposition, counsel did not limit
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During Captain Baileys deposition, taken five days later, counsel initially instructed
Captain Bailey not to answer any questions about statements made by MCSO
personnel while Ms. Iafrate was present. Bailey Dep. 186:20-22. Counsel later revised
his instruction to include just communications made or between the witness and Ms.
Iafrate and other persons present at [the July 17] meeting. Bailey Dep. at 205:18-23.
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his questioning to statements made by MCSO not for the purpose of obtaining legal
advice. He specifically asked if she had heard anything from the Sheriffs Office
suggesting they wanted to hide or destroy the IDs.
Defendants voluntary decision make representations about the entirety of what
was and what was not said by MCSO personnel during the July 17 meeting waives
privilege not only as to MCSO personnels statements, but all other communications
during the meeting. Fed. R. Evid. 502(a); Richey, 632 F.3d at 566. Defendants cannot
limit Plaintiffs discovery to only the portions of the discussion that they have self-
servingly sought to bring to the Courts attention while concealing the other portions
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behind the cloak of privilege.
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III.
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Conclusion
In the effort to absolve themselves of wrongdoing, Defendants have disclosed a
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great deal about the July 17 discussion of the 1500 IDs. [W]hen [the privilege
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holders] conduct touches a certain point of disclosure, fairness requires that his
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privilege shall cease whether he intended that result or not. He cannot be allowed,
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after disclosing as much as he pleases, to withhold the remainder. He may elect to
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withhold or disclose, but after a certain point his election must remain final. Weil,
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647 F.2d at 24 (quoting VIII J. Wigmore, Evidence s 2291, at 636 (McNaughton rev.
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1961)). For the foregoing reasons, the Court should grant Plaintiffs motion.
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Dated this 10th day of September, 2015.
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By:
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Anne Lai (Pro Hac Vice)
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/s/ Anne Lai
Cecillia D. Wang (Pro Hac Vice)

Andre I. Segura (Pro Hac Vice)
ACLU Foundation
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Daniel Pochoda
ACLU Foundation of Arizona
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Stanley Young (Pro Hac Vice)

Tammy Albarran (Pro Hac Vice)
Michelle L. Morin (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Hyun S. Byun (Pro Hac Vice)
Priscilla G. Dodson (Pro Hac Vice)
Covington & Burling, LLP
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Jorge M. Castillo (Pro Hac Vice)

Mexican American Legal Defense and
Educational Fund
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Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on September 10, 2015, I electronically transmitted the
attached document to the Clerks Office using the CM/ECF System for filing. Notice
of this filing will be sent by e-mail to all parties by operation of the Courts electronic
filing system or by mail as indicated on the Notice of Electronic Filing.
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Dated: September 10, 2015

Irvine, CA
/s/ Anne Lai
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Case 2:07-cv-02513-GMS Document 1319-1 Filed 09/10/15 Page 1 of 65
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres,

et al.,
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Plaintiff(s),
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v.
Joseph M. Arpaio, et al.,
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Defendants(s).
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CV-07-2513-PHX-GMS
[PROPOSED] ORDER GRANTING
PLAINTIFFS MOTION TO
COMPEL TESTIMONY RE:
JULY 17, 2015 MEETING
AND MCSOS NONDISCLOSURE
OF THE 1500 IDS
The Court, having considered Plaintiffs Motion to Compel Testimony Re: July
17, 2015 Meeting and MCSOs Nondisclosure of the 1500 IDs, and for good cause
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appearing,
IT IS ORDERED that Plaintiffs Motion to Compel Testimony Re: July 17, 2015
Meeting and MCSOs Nondisclosure of the 1500 IDs is granted.
IT IS FURTHER ORDERED that Defendants and members of the MCSO shall
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forthwith respond to Plaintiffs questioning about (1) discussions that occurred between
MCSO personnel and counsel on Friday, July 17, 2015 regarding approximately 1,459
identification documents that had been turned in by Sergeant Jon Knapp (hereinafter the
1,500 IDs); and (2) any other discussions MCSO had with counsel regarding
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nondisclosure of the 1500 IDs to the Monitor team in the lead up to the Monitors site
visit on July 20-24, 2015.
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Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 1 of 11

Cecillia D. Wang (Pro Hac Vice)

IN THE UNITED STATES DISTRICT COURT

Manuel de Jesus Ortega Melendres,

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 2 of 11

Additional Attorneys for Plaintiffs:

Priscilla G. Dodson (Pro Hac Vice)

Anne Lai (Pro Hac Vice)

Jorge M. Castillo (Pro Hac Vice)

Telephone: (202) 662-5996

Facsimile: (213) 629-0266

Stanley Young (Pro Hac Vice)

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 3 of 11

Plaintiffs hereby move to compel Defendants and members of the Maricopa

County Sheriffs Office (MCSO) to respond to Plaintiffs questioning about (1)

of attorney-client privilege. Any privilege that may have existed in those

communications, however, has been waived.

number of identification documents to Property and Evidence, apparently for

Dep. of Kimberly Seagraves, Lai Decl. Ex. 2 (Seagraves Dep.) at 89:22-92:21.

Given the history of problems involving the handling of identification documents by

that required Defendants to produce [c]opies of identification documents seized by

to Plaintiffs), 121:22-123:19 (order was discussed at July 17 meeting); Bailey Dep. at

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 4 of 11

investigation. Bailey Dep. at 171:21-172:13, 224:25-225:4, Interview of Captain Steve

administrative assistant Lauren Sanchez, and Defendants counsel Michele Iafrate

at 181:7-9, 207:2-14, 210:5-212:18; Seagraves Dep. at 106:14-109:18.

Seagraves Dep. at 88:11-25 (describing other ID cases), 111:22-112:13 (describing

112:14-20, Bailey Dep. at 224:10-11. Lieutenant Seagraves acknowledged in her

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 5 of 11

Seagraves Dep. at 115:23-117:3. Defense counsel instructed her not to answer

At the close of Lt. Seagraves deposition, Charles Jirauch, who represents

Q. So what you heard, and correct me if I'm wrong, is conversation

Seagraves Dep. at 315:6-21.2

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 6 of 11

The attorney-client privilege is strictly construed and the burden of proving

advice and statements of MCSO personnel during the July 17 meeting.3

Defendants waived any attorney-client privilege by disclosing the

It is well established that voluntary disclosure of privileged communication

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 7 of 11

of the waiver is governed by a rule of fairness.) (internal quotation omitted).

As Defendants have attempted to do before in this lawsuit, they seek to gain an

identity of the speaker in an attorney-client communication is not itself privileged. For

withholds otherwise discoverable information on grounds of privilege, the party must

provide a detailed privilege log that consists of a description of responsive material

instead the underlying advice that is privileged.

communicated in connection with her instruction by refusing to confirm that it was

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 8 of 11

disclosed information be considered together.

Defendants waived any attorney-client privilege by selectively

Defendants have selectively disclosed statements made by MCSO personnel in Ms.

Iafrates presence during the July 17, 2015 meeting.

Bailey Monitor Interview Tr. at WAI 17018:22-17020:20; Seagraves Dep. at 109:6-16;

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 9 of 11

suggesting they wanted to hide or destroy the IDs.

Defendants voluntary decision make representations about the entirety of what

behind the cloak of privilege.

after disclosing as much as he pleases, to withhold the remainder. He may elect to

Dated this 10th day of September, 2015.

Anne Lai (Pro Hac Vice)

/s/ Anne Lai

Cecillia D. Wang (Pro Hac Vice)

Case 2:07-cv-02513-GMS Document 1319 Filed 09/10/15 Page 10 of 11

Stanley Young (Pro Hac Vice)