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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,

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vs.

Joseph M. Arpaio, et al.,


Defendants.

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DS

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Court Reporter:

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FR

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Phoenix, Arizona
November 9, 2015
3:33 p.m.

(Telephonic Conference)

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No. CV 07-2513-PHX-GMS

BEFORE THE HONORABLE G. MURRAY SNOW

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 1 of 31

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:


Covington & Burling, LLP
By: Stanley Young, Esq.
By: Michelle L. Morin, Esq.
333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
For the Defendant Maricopa County:
Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
By: Charles W. Jirauch, Esq.
SGA Corporate Center
16100 N. 7th Street, Suite 140
Phoenix, Arizona 85254

For the Defendant Joseph M. Arpaio and Maricopa County


Sheriff's Office:
Jones, Skelton & Hochuli, PLC
By: John T. Masterson, Esq.
By: Joseph T. Popolizio, Esq.
2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012

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
U.S. Department of Justice - Civil Rights Division
By: Maureen Johnston, Esq.
601 D. Street NW, #5011
Washington, D.C. 20004

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IEN

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For Executive Chief Brian Sands:


Lewis, Brisbois, Bisgaard & Smith, LLP
By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
Phoenix, Arizona 85012

DS

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 2 of 31

P R O C E E D I N G S

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THE CLERK:

This is civil case number 07-2513,

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

conference.

15:33:15

Counsel, please announce your appearances.

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 3 of 31

MR. YOUNG:

Good afternoon, Your Honor.

Stanley Young

and Michelle Morin, Covington & Burling, for plaintiffs.

MR. KILLEBREW:

Good afternoon, Your Honor.

Paul

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Killebrew and Maureen Johnston for plaintiff intervenors United

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States.

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MR. MASTERSON:

Good afternoon, Judge Snow.

John

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Masterson, Joe Popolizio for Sheriff Arpaio and the individual

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alleged contemnors.

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MR. WALKER:

Richard

THE COURT:

Sands?

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Do we have anybody representing Chief

Where's Mr. Murdy?


MR. YOUNG:

Your Honor, I did include Mr. Murdy and

Mr. Dodd on the e-mail.

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appearance at most of Mr. Zullo's deposition, which is the

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primary topic of this call, so it may be that they've chosen

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DS

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I do know that they waived their

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not to attend, and at least the issues as to Mr. Zullo I don't

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think affect former Chief Sands.

FR

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15:33:44

Walker and Charles Jirauch for Maricopa County.

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Good afternoon, Your Honor.

15:33:30

THE COURT:

Does anybody else want to be heard on

15:34:07

15:34:32

that?

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 4 of 31

Well, can I have -- can I proceed without all the

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parties, or a representation from one of the parties that they

don't have any interest in this subject matter?


MR. YOUNG:

Your Honor, this is Stanley Young.

don't think that the issue as to Mr. Zullo affects Chief Sands.

And I say I don't think because it does affect, possibly,

schedule.

County's proposed witness and an exhibit, which we may raise as

And there is actually another issue relating to the

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well, which I suppose might affect them, so I can't make a

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blanket representation on that.

15:35:19

It might be that we can discuss something this

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afternoon that could help us plan the next few days, but that

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it might need to be reconfirmed tomorrow morning when Chief

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Sands' lawyer is present.


THE COURT:

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bit to see whether I think we can do tentative discussions, in

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light of the nonappearance of Mr. Murdy?


MR. JIRAUCH:

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Your Honor, this is Charles Jirauch.

The County does not have a position on this, but I would make

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an observation.

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is there are certain audiotapes that were presented at the

DS

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IEN

15:35:36

Does anybody object if we proceed a little

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15:35:51

One of the issues that we will be discussing

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deposition of Mr. Zullo today, and then portions were played as

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part of the deposition.

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believe, to two audiotapes that were in excess of an hour each,

FR

15:34:53

For instance, there are references, I


15:36:13

and only a few minutes were played.

I understand, from conversations we had after the

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deposition, that the plaintiffs are going to request the Court

to allow the entire audiotapes to be put into the record based

upon the playing of just a few minutes of it.

that were produced for the very first time last Friday from

Mr. Zullo.

The County has never seen them.

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 5 of 31

These are tapes

I suspect Detective

or Captain Sands' attorneys had not, either.

So it's hard to

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say whether anything we do today will not have an impact on

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him, because we don't know what's in the 57 minutes of each of

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these tapes that weren't played, and that plaintiffs would like

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to put into evidence.

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dark here.

THE COURT:

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All right.

Well, it sounds to me like --

do you want to explain that any further, Mr. Young, before I

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decide whether I can hear anything about that in the absence of

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Chief Sands' attorneys?


MR. YOUNG:

Yes.

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I think by the time we got to that part of the deposition,

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Mr. Dodd had left, and Mr. Murdy had left prior to that.

IEN

DS

entireties of those conversations, those recordings available.

15:37:31

So it may be that you wouldn't be able to decide the

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entire issue.

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entireties of those recordings -- and I don't know that we've

FR

15:37:14

Well, we did have CDs with the

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15:36:56

So we're all sort of shooting in the

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15:36:33

We would, obviously, if we plan to introduce the


15:37:56

reached the final conclusion in that regard yet; there's still

some further work on that.

them we would move the introduction of the entirety.

that, I think we would play the entirety in court.

It may well be that as to some of

If we did

The reason we thought it -- or I thought it, anyway,

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it might be helpful to have the conversation today is that it

would allow us to tell Mr. Zullo what we're going to do with

him tomorrow.

We did take a deposition.

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hours.

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not have been inadvertent, took the Fifth Amendment with

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respect to every question, and that included many questions

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about documents; it included questions about five audio

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recordings which were provided to us on Friday.

Mr. Zullo, with one or two exceptions, which may or may

It would be plaintiffs' proposal that we could simply

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introduce the deposition testimony, or portions of the

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deposition testimony, in order to allow the Court to draw

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inferences that would allow the e-mails and the recordings to

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be put into evidence.

DS

Those e-mails are to or from Mr. Zullo, mostly

involving Mr. Montgomery.

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dispute as to the e-mail addresses or, frankly, to the

IEN

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15:38:32

15:39:01

15:39:24

I don't really think there's any

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authenticity of the documents.

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questions that Mr. Zullo, you know, would say that those

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documents are authentic.

FR

15:38:14

It lasted for about three

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 6 of 31

I think if he were to answer

The audio recordings are almost

15:39:47

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 7 of 31

self-authenticating, and I think that Mr. Zullo's refusals to

answer based on Fifth Amendment would allow inferences that

would allow those documents also to get into evidence.

The transcript itself seems to me to be something that

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would be admissible as prior testimony.

And given the fact

that he's unavailable because of his invocation of the Fifth

Amendment, those would be -- that testimony -- those portions

of it that we would introduce would be admissible.

32(a)(4)(E) also provides a basis for that.

Rule

And I suppose the purpose of the call would be to seek

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the Court's guidance.

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might not compel Mr. Zullo to answer each -- you know, to

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invoke as to each and every question.

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now of a number of questions that relate to documents that we

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would want to introduce.

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Fifth Amendment on other questions as to which I'm sure we'll

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have a chance to argue later on as to inferences.

15:40:35

I know the Court earlier stated that he

We do have a long record

There are other invocations of the

15:40:57

But our proposal would be to put those in to the Court

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in order to get the documents and the audio introduced, and put

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more of it in in order to provide the Court with those refusals

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to answer as to matters other than documents and audio

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recordings.

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DS

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I did discuss this issue briefly with Mr. Masterson

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earlier today, and also Mr. Jirauch, and it may well be that

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they would want to have more of a chance to review the

FR

15:40:11

15:41:17

15:41:37

documents.

them -- well, they probably did not have them before today,

and -- some of them, anyway -- and as to Mr. Masterson, his

firm may have had them for longer than we have, but it may be

that they'll want a chance to review those, too.

I think Mr. Jirauch and the County may not have had

stipulation, we may or may not be in a position to reach that

today, but I thought it would be helpful to get the Court's

guidance as to how it would proceed on the general issue of

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whether the deposition transcript by itself would suffice, or

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whether we should tell Mr. Zullo that he should appear in

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person.

THE COURT:

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about which I'm going to have to have all parties present if

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the other --

call?

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Craig Murdy, Your Honor.

THE COURT:

All right.

Sorry I'm late.

Mr. Murdy, you're here

representing Chief Sands?

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Who just joined the

MR. MURDY:

DS

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15:42:38

Did somebody just join the call?

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15:42:50

MR. MURDY:

Correct.

THE COURT:

All right.

Do you want to restate

everything, please, Mr. Young?

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MR. YOUNG:

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So I think, Mr. Murdy, you were part of the deposition

FR

15:42:22

Well, it seems to me that that is an issue

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15:42:02

So it may be that there's -- if there's room for a

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Yes.

Hi, Mr. Murdy.


15:42:58

earlier today, and Mr. Dodd came in for a while as well,

that -- let me recap our proposal here.

With all but one or two exceptions, Mr. Zullo invoked

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the Fifth Amendment and refused to answer questions.

those questions related to documents as to which we believe

there should be really no genuine dispute as to their

authenticity or provenance.

Many of

some of which were played in part.

Well, actually, as to each

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one, I guess; all of them were played in part.

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I don't think we played any of them in its entirety.

I'm not sure --

15:43:48

But our proposal or thought as to all of those

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documents and recordings is that Mr. Zullo's invocation of the

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Fifth Amendment would suffice to provide inferences that would

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allow those documents to be admitted in evidence in this

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proceeding.

15:44:09

And we raise the issue now so that we can tell

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Mr. Zullo whether we need him to come.

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attend tomorrow afternoon, I think, after Captain Skinner's

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testimony is completed.

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that it might not require him to actually invoke the Fifth on

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the stand as to each and every question.

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He is prepared to

But I know the Court earlier indicated

15:44:29

It's our belief for

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plaintiffs that the deposition testimony, which we believe

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could be admitted as an exception to the hearsay rule or under

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a section of Rule 32, and that would suffice to get the

FR

15:43:25

There were also questions about five audio recordings,

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 10 of 31

documents in.

There are other questions that Mr. Zullo refused to

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answer, invoking the Fifth Amendment, which would provide, we

believe, a basis for making inferences on other issues other

than the admission of exhibits.

later, but obviously, for the purposes of this week, we need to

have, I guess, answers as to the documents and audio

recordings.

And we can argue about that

I think Mr. Jirauch raised an issue, Mr. Murdy, that

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not all of the sound recordings were played in their entirety.

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And as I expressed earlier, to the extent we move for the

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admission of an entire recording, we would obviously play that

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entire recording in court.


MR. MURDY:

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THE COURT:

Was that Mr. Murdy?

on the line, when you're appearing telephonically, you need to

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identify yourself before you speak, please.


MR. MURDY:

I'm sorry, Your Honor.

That was Craig

Murdy on behalf of Chief Sands.

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who else was on the line and what position they've taken so

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far.

IEN

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MR. JIRAUCH:

I was just trying to find out

15:46:12

Counsel for the County, Mr. Walker and

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myself, Chuck Jirauch, are on the line.

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observation but haven't taken a position yet.

FR

15:45:58

Because when you're

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15:45:36

And is everybody else -- is everybody else

on the line, and what positions have they taken?

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15:45:19

I made an earlier
The County's

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position will be that Mr. Zullo will need to appear to testify

about these materials, and I can explain why to the Court at an

appropriate time.

THE COURT:

All right.

MR. JIRAUCH:

Go ahead, Mr. Jirauch.

Your Honor, the problem with -- and I'm

going to speak principally to the audio recordings.

Mr. Young may have underspoke when he said that not all of the

recordings were presented during the deposition.

would suspect that less than 5 percent of it was presented.

I think

In fact, I

And in that recording it is impossible to determine

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who's speaking.

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was advised that Mr. Zullo was taping the conversations.

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it's -- when asked who was speaking, he again took the Fifth

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Amendment.

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even present are Mr. Young asking questions on the assumption

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that certain people are there, without testimony to support

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that.

There are multiple parties present.

No one

So

The only thing that we've got that identifies who's

privileged, confidential information.

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officers, law enforcement officers involved in some of the

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conversations, so we don't know what's in the material that may

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deal with law enforcement investigations that are ongoing.

IEN

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15:47:33

There are police

DS

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15:47:08

There are also concerns about the material having

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15:46:45

15:47:50

There are questions we simply don't have answers to.


The County, like the plaintiffs, didn't get these

materials -- well, actually, we got them in the deposition.

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I've spoken to the people in our office.

None of this, either

the written exhibits or the tape recordings, have been provided

to us.

deposition.

So all we've got is what was given to us during the

We don't know if there are other tape recordings that

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may be relevant to the various issues.

County has a position, necessarily, on the propriety of this

material; we simply aren't in a position to know what's there.

I will observe, however, that it's clear that much of

It's not that the

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the material, not all of it, is hearsay, maybe hearsay upon

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hearsay; hearsay upon hearsay upon hearsay.

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what people are saying with an inability to determine who's

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even talking.

15:48:39

People surmising

The recordings are not the best.

So there are substantive issues that are significant,

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particularly when you've got a witness who won't testify as to

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the substance of it.

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observations as to what he thinks they relate to.

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candidly, much of the information on there is likely to be

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irrelevant.

And

We simply don't have time to come to -- to review this

material and have conclusions as to what's proper and not.

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a consequence, we believe Mr. Zullo needs to come and be

IEN

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FR

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15:49:00

So all we've got is Mr. Young's

DS

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15:49:17

As

prepared to testify about it.


And certainly, Mr. Young has not given us any legal

authority for the suggestion that this material is admissible

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based upon inferences because Mr. Zullo refused to testify,

particularly not as to my client.


THE COURT:

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All right.

Mr. Masterson, do you have

anything to say on this issue?


MR. MASTERSON:

Just generally, Judge.

First off, I

join in Mr. Jirauch's comment at the very end there about the

inference.

Fifth Amendment rights during questioning at the deposition can

be utilized to obtain any inferences at all against my client

I don't think that Mr. Zullo's invocation of his

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in this matter.

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to take up.

So that's an issue the Court's going to have

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needs to be personally there.

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this morning -- the questions asked, anyway, and certainly the

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audiotapes we listened to -- contained hearsay.

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foundational problems with every single one of them.

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don't know who was -- who was making statements.

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as to some of the people; some people I have no idea.

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have hearsay concerns, hearsay upon hearsay concerns as

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Mr. Jirauch just stated.

Much of the testimony we heard

There's

15:50:37

We really

I can guess

DS

So we do

So I think Mr. Zullo's going to have to be there.

15:50:58

And

there may even be situations in which his attempted invocation

IEN

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of the Fifth Amendment based upon a particular question might

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not be well taken.

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time, but that's certainly something that could happen upon

FR

15:50:19

I think his testimony is going to be -- I think he

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15:49:51

I'm not taking a position on that at this


15:51:15

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 14 of 31

questioning by the parties during trial.

So I guess that's about all I have to say.

I mean, I

am -- I do have a concern that people are saying they don't

have the information that Mr. Zullo was talking about or the

documents Mr. Young provided to Mr. Zullo this morning.

I'm looking at an e-mail from Friday at 4:51 p.m. --

THE COURT:

Do you know what?

starting to fade, Mr. Masterson.

MR. MASTERSON:

I can't -- you're

I can't hear you.

I was looking at my screen.

I'm looking at an e-mail from Friday at 4:51 p.m.

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where the parties were given all the documents that were sent

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out to plaintiffs, so that should have all the Zullo documents

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contained in that e-mail.


THE COURT:

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MR. MASTERSON:

15:52:06

I see -- let's see here.

Ms. Wang,

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Mr. Young, Mr. Murdy, Ms. Iafrate, Mr. Walker, Mr. Jirauch,

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Mr. Dodd, Mr. Killebrew, Ms. Coe, and Mr. Zullo.


THE COURT:

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MR. JIRAUCH:
THE COURT:

IEN

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All right.

So it would appear that all

the documents were sent out on Friday afternoon to all parties.

DS

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I'm sorry, what?

As I've indicated now

several times, if you're going to speak up, you need to

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identify who you are, please.

FR

MR. JIRAUCH:

15:52:31

May I ask a question of John Masterson?

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15:51:49

To plaintiffs and other parties or just to

plaintiffs, Mr. Masterson?

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15:51:32

I apologize, Your Honor.

This is Chuck

15:52:49

Jirauch.

e-mail -- because I just went through my e-mails and I

apparently didn't get it -- whether that included the

audiotapes.

I was just going to ask John whether or not that

MR. MASTERSON:

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Yeah, I guess -- I don't really know

how this works, I will tell everybody up front that.

Masterson.

seeing is Zullo 005, Zullo 006, Zullo 007, and then there's a

link to each one of those, which I understand is a Dropbox that

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This is

I think they went into Dropbox, and the heading I'm

contains all of that information.


THE COURT:

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15:53:23

Mr. Masterson, let me ask you another

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question that is more related to scheduling than it is to the

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substantive question of whether or not we're going to have to

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have Mr. Zullo testify.

Is Chief Deputy Sheridan doing well enough that we

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could have him begin testimony after the testimony of

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Captain Skinner?

MR. MASTERSON:

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I can answer it this way.

And in fact, I've met with

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him now and he is up and about and I discussed that with

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Mr. Young this morning.

DS

Chief Sheridan is doing quite well.

15:54:00

IEN

The answer to your question about testifying as soon

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as Captain Skinner is done, the answer to that is no.

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unfortunately, he's going in tomorrow for -- under general

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anesthesia one more time -- well, I don't know if one more

FR

15:53:41

First off,

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15:53:03

And

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time, but again for more injections.

But I've met with him, I've talked to him, he's up and

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about now, so unless something goes wrong tomorrow, he's going

to be ready to testify.
THE COURT:

Well, it seems to me, Mr. Young, that

15:54:36

while things may be clear to you, since you were present

throughout the deposition, things aren't clear enough to me to

determine that Mr. Zullo can be excused from attending the

trial.

It does seem to me that -- you know, I have indicated

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before I don't want to have Mr. Zullo standing up here invoking

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the Fifth as to every question if there's no purpose to it.

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you believe that an adverse inference can be drawn sufficient

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to admit documentary evidence, that may be a different

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question.

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question and whether or not an inference is fair under the

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circumstances.

If

But it will depend, of course, on the nature of the

that hearsay was admissible.

And to do that, we would have to

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have the stipulation by all parties in order to convenience

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Mr. Zullo, and it doesn't sound like we're going to get that.

DS

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MR. YOUNG:

This is Stanley Young, Your Honor.

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understand that.

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heard in this conference, than they were earlier today.

FR

15:55:34

So in answer to your question --

IEN
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15:55:20

So I guess I'd have to see the question and determine

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22

15:54:53

Things are clearer now, based on what I've


So I

15:55:48

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17

think what we will do is tell Mr. Zullo that he should come to

court tomorrow and we will do that examination.

There are a couple of things that I should note.

One,

a change in our time estimate for Mr. Zullo.

Based on the

documents we received on Friday, I think we estimated two and a

half hours earlier; it might be closer to four hours at this

point for our direct examination, and the audio, actually, is

part of that.

The other thing I suppose I should say at this point

9
10

is that our belief is that Sheriff Arpaio is on some of those

11

audios.

12

know.

13

identification, at least as to those audio recordings, we would

14

certainly call him back, and we reserve the right to do that

15

based on subsequent discovery.

If there's really an objection as to voice

15:56:56

I did tell Mr. Zullo we

would let him know, since I believe that after Captain Skinner

18

finished tomorrow that that might be the time, based on what

19

Chief Sheridan is doing tomorrow, so we will go ahead and do

20

that.

DS

17

THE COURT:

15:57:17

All right.

Now, my advice would be, just

out of -- I guess it's more than my advice; it's an order.

IEN

22

23

would order the parties to review the documents and determine

24

whether there's any that can be stipulated to, A; B, if there

25

are not any that can be stipulated to, absent whatever

FR

15:56:33

And it may well be that we would call him back, you

So we will plan to do that.

16

21

15:56:11

15:57:36

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 18 of 31

evidentiary and foundational basis that Mr. Young is going to

put forward, I would take a look, Mr. Young, to see -- to

provide me with authority, and Mr. Masterson, Mr. Jirauch,

Mr. Murdy, contrary authority to allowing inferences that would

admit evidence.

15:57:59

And then if that is met, whether or not there can be

6
7

stipulations.

And if not, let us pare down the exhibits to

which -- or the exhibits or evidence that you believe may

require recalling witnesses so that we can focus on whether or

10

not there is a basis for such recall.

11

work on that and simplify it prior to tomorrow, that would be

12

helpful to all of us.

13

that you can't simplify, and away we'll go.

Your Honor, Charles Jirauch.

I have a

15

related issue that would, I think, save us all a lot of time

16

and a lot of heartache and argument in court, and that is if

17

plaintiffs could identify from each of the tape recordings by

18

the end of the day or first thing in the morning, so we have a

19

chance to look at what they intend to introduce.

We've now got over three hours of this material, and

DS

20

there's no way that we could digest that sufficiently so that

22

we could make objections and protect the interest of our

IEN

21

23

clients if we don't know which parts they're going to offer

24

into evidence.

FR

25

THE COURT:

15:58:18

And if you can't simplify, you'll know

MR. JIRAUCH:

14

And maybe if you can

Well, it sounds to me like you've had the

15:58:38

15:58:56

15:59:11

material as long as they have, Mr. Jirauch, is that correct?


MR. JIRAUCH:

Well, Your Honor, I have to tell you,

I've looked at my e-mails and I didn't get that.

review of it, it appears Mr. Walker may have.

idea what it was and we got it late Friday.

a thousand people to work on it like the Covington firm does,

and we had no knowledge that they were going to use it.


MR. YOUNG:

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9

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 19 of 31

Based upon my

But we had no

And we don't have

Your Honor, this is Stanley Young.

to fill the picture out -- and we'll do our best.

Just

I understand

10

Mr. Jirauch's request.

11

specific as to the five recordings that we did play parts of at

12

the deposition, we will do that.

And certainly if we can be more

15:59:46

There were many, many more hours of audio and video

13
14

that we did not play at the deposition and which I currently

15

believe we will not attempt to introduce.

16

Mr. Jirauch, there are many more than what we went over, and I

17

won't address the thousands of people comment.


THE COURT:

18

So, you know,

Well, do your best, Mr. Young.

20

suggestion, but to the extent he suggests that they didn't have

21

it, they're Maricopa County.

22

action.

DS

Mr. Jirauch -- you know, I don't mean to cut off his

IEN

16:00:07

I found

19

16:00:31

That is the defendant in this

They clearly had it to the extent -- well, I don't

23

know.

24

Mr. Masterson having it and Mr. Jirauch having it.

25

is in this case.

FR

15:59:27

I don't know that there's a distinction between


Maybe there
16:00:47

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But in any event, if you can try and specify the

1
2

exhibits that you're interested in, Mr. Young, that's what

Mr. Jirauch wants.

have to start playing it tomorrow, it's not an unreasonable

request to the extent that you can get your arms around that

and communicate it to the parties.


MR. YOUNG:

In light of the fact that you're going to

16:01:02

We will do our best, Your Honor.

I would note that, you know, most of the voices

8
9

20

involved are either Mr. Zullo or I believe Mr. Mackiewicz, or

10

the sheriff.

There is one recording involving a witness who

11

will not be appearing, but I don't think there should be a

12

dispute over who that is, and that's Timothy Blixseth.


THE COURT:

13

16:01:21

Well, I mean, to the extent that you don't

14

believe there's going to be a dispute, that's helpful now.

15

if there is an actual dispute, there's going to be an actual

16

dispute, and it won't come in absent some sort of foundation or

17

inference sufficient to bring it in, so you better think about

18

those things.

MR. YOUNG:

19

Understood, Your Honor.

But

And that's why --

you know, it may be that we will -- and actually, I should add

21

to the list.

22

Detective Mackiewicz, in order to lay that foundation and get

IEN

DS

20

23

16:01:53

We may recall Sheriff Arpaio, we may recall

those recordings into evidence.

24

THE COURT:

25

MR. JIRAUCH:

FR

16:01:39

All right.
Your Honor, Chuck Jirauch again.

Two

16:02:13

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 21 of 31

comments.

First of all, as to the written exhibits, I suspect

that we'll be able to resolve that very easily this afternoon,

and I suspect that there won't be any major dispute as to the

vast majority of those, if any.

I would suggest that it may be a prudent thing to do

5
6

in this case with respect to the tape recordings, because of

the number of them, and the lack of notice on our part that

they were going to be used and now offered into evidence, that

if possible, we postpone Mr. Zullo until later in the week or

10

when we reconvene.

THE COURT:

11

16:02:49

Well, that's why I was trying to get Chief

12

Deputy Sheridan in, but apparently we can't get Chief Deputy

13

Sheridan in.

Can we replace him with somebody else who will testify

14
15

similarly, Mr. Masterson?


MR. MASTERSON:

16

16:03:03

Judge, this is John Masterson.

And

17

I'm glad you brought that up, because I was going to bring this

18

up, which may be good news, but I don't want to -- I don't want

19

raise false hopes here.

Over the weekend I have thought long and hard.

DS

20

I've

examined testimony of Chief Sheridan from the April hearing,

22

from our hearing that we've been going through the last month

IEN

21

23

and a half, and I also looked at the transcripts regarding the

24

Court's statements on Chief Sheridan's testimony and am

25

considering not calling him.

FR

16:02:28

16:03:18

16:03:45

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 22 of 31

Now, I don't want to get everybody's hopes up because

1
2

I still may, but the -- I kind of reached a tentative decision

that whether I call him may well depend on what Mr. Zullo had

to say or what Mr. Zullo testifies about during -- well, if he

testifies.

16:04:13

So I'm not sure we would need to call a substitute

6
7

witness, or even call Chief Sheridan at this point, based upon

what I've read in the transcript of Chief Sheridan's prior

testimony, and then the Court's statements concerning Chief

10

Sheridan's proposed or upcoming testimony.

So I wanted to raise that so everyone knows that's

11
12

16:04:29

my -- that's my line of thought at this point.


THE COURT:

13

All right.

Well, I take it your answer

14

would be you don't know whether you're going to call anybody,

15

but you don't have any replacement testimony as a result of the

16

fact that you may not call anybody in the first place.
MR. MASTERSON:

17

Well, here -- yeah.

I mean, I wish I

18

could -- I wish I could make it more clear, Judge, but I really

19

can't.

20

inferences the Court may rule are appropriate in the case, I

21

would call Chief Sheridan to testify based upon Zullo testimony

22

or inferences.

Depending upon the testimony of Mr. Zullo, or what

DS

IEN
23

16:05:06

But at this point I don't see going forward with the

24

originally intended areas that I was originally intending to go

25

over with Chief Sheridan and have discussed with the Court,

FR

16:04:47

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23

because I've gone through the testimony and I've gone through

the Court's statements concerning that, and I think we'd

have -- we may well have redundancy, which I want to avoid.


THE COURT:

MR. MASTERSON:

5
6

Okay.

So that's about as much as I can tell

you at this point.

THE COURT:

Well, of course, I want to be reasonable

in dealing with your testimony, Mr. Masterson, but we're going

to approach a point pretty quickly where you're going to need

10

to make a decision one way or another.

11

that.

MR. MASTERSON:

12

I'm sure you realize

Oh, I understand that, Judge.

13

just trying to -- I didn't want to spring any surprises.

14

I'm hopeful that what we're doing here is shortening the

15

proceeding.

THE COURT:

16

And

16:06:14

All right.

Well, it doesn't sound like we

18

get together and stipulate to exhibits, you may figure out what

19

you're not going to stipulate to and what your position's going

20

to be as a result, Mr. Young, but it sounds to me like we need

21

to do all of those things.

DS

can accomplish much else here this afternoon.

IEN

MR. YOUNG:

23
24

FR

25

16:06:03

I'm

17

22

16:05:48

You parties may

16:06:27

We will work on that and we'll have some

further conversations about those issues among the parties.


I do want to make it clear that as to the sound

recordings, we may well need to call Detective Mackiewicz back

16:06:44

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 24 of 31

if we can't reach agreement on some of these things, so I

suppose I would give notice to Mr. Masterson and Mr. Popolizio

on that.

There is one further issue relating to a document that

4
5

Mr. Walker has asked us to stipulate to.

It relates to some

alleged cost figures, and we do not know how the figures were

arrived at, we don't know what the numbers encompass, and we,

number one, actually object to the document as late; number

two, we did have some discussion, and Ms. Wang actually had

10

this discussion over e-mail, which I've seen so I'm reporting

11

on that.

12

able to answer questions about that document, and how it was

13

created, and what's included in the various numbers that are

14

listed in it.

16

that we had -- I don't think we had heard of her before, who

17

Mr. Walker says is available on Wednesday for deposition.

16:07:54

It's our view, actually, that the document should not

18

be allowed.

It's late.

20

testify to it because she's late as well.

21

unfair for the plaintiffs to have to scramble at this last

22

minute to deal with that set of issues, and I think our request

IEN

DS

19

The witness should not be allowed to

We think it would be

23

would be that the document and the witness be excluded from the

24

case.

25

want to raise that issue now since it will affect what we might

FR

16:07:37

There was some discussion about, Well, who would be

We did receive this morning an e-mail naming someone

15

16:07:04

16:08:20

And if not, then we need to proceed otherwise, but I do


16:08:46

have to do later this week.


THE COURT:

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3

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 25 of 31

All right.

Any response, Mr. Walker or

Mr. Jirauch, that you want to make right at the moment?


MR. WALKER:

Yes, Your Honor.

This is Richard Walker.

The document is simply a compilation of costs that

5
6

have been incurred by the County in relation to this matter.

We intend to offer it solely for purposes of the Court's

consideration in connection with a devising of an appropriate

remedy, if the Court deems a remedy be necessary.

The information in the document is -- it is a

10
11

compilation, but it's derived from all -- all from sources that

12

are accessible to the public.

13

as of the date the document was created, which was just a few

14

days ago, the cumulative costs that have been incurred have

15

been with the breakout for, you know, categories of costs.


THE COURT:

16

18

a victim of the violation of my preliminary injunction is

19

entitled to relief.

DS

I don't want to make a -- I don't want to make a

21

definitive ruling without giving you more opportunity to think

22

about that, but -- and I appreciate that this matter has been

IEN

16:10:00

Well, it does seem to me like that may not

be particularly relevant to whether or not anybody who has been

23

expensive to the County.

24

that is relevant to whether or not I order relief for members

25

of the plaintiff class whose rights have been violated by a

FR

16:09:33

And it just simply shows what,

17

20

16:09:01

16:10:20

But I'm not sure whether that -- how

16:10:39

violation of the preliminary injunction.

Can you explain that to me, or do you want to wait a

2
3

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 26 of 31

day or two?

I'll give you a day or two.

MR. WALKER:

Well, actually, I can respond now, Your

Honor.

The document would not be offered for purposes of

suggesting that any alleged victims of violations of the

preliminary injunction not be accorded relief.

fact, the negotiations, as we mentioned previously, on a victim

compensation program continue, and I think we're continuing to

As a matter of

10

make progress.

11

likelihood that what we're going to be in a position to do

12

before very long is present the Court with a program that is

13

largely agreed to between the County and the plaintiffs.

And I think there's a -- there's a very good

15

to get the Court to make a determination where we're not able

16

to reach closure.

17

broad-brush respects, we're on track to present to the Court a

18

program that we think is a sensible program to provide an

19

avenue for relief for anyone who has been adversely affected by

20

violations of the preliminary injunction.

23
24

FR

25

16:11:50

DS

But I think in most of its at least

16:12:24

So this goes more to any potential injunctive relief

and costs associated with injunctive relief, not to a program

IEN

22

16:11:25

There may well be a few issues as to which we'll have

14

21

16:10:56

for compensation of alleged victims.


THE COURT:

Well, I guess I don't know that it's

helpful now, and I understand that you're sequestering out the

16:12:46

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 27 of 31

alleged victims, but in terms of the future injunctive relief,

how that relates to any argument, you'll have to make it at

that -- I mean, you'll have to tell me how that is relevant,

too.

And I'll let you do that.

Are you saying in terms of costs of having monitors

5
6

assume responsibilities, or something like that?

the case, then how would you expect the plaintiffs to be in a

condition at this point to validate those costs?


MR. WALKER:

And if that's

Well, I think the additional expansion of

10

the role of the monitor and costs associated with that would be

11

part of it.

12

position to argue is that given the costs that have been

13

shouldered so far by the taxpayers of Maricopa County, that it

14

is important for the Court to take that into account in

15

fashioning relief, again, with the exception of the victims'

16

compensation scheme, and in recognizing that to the extent that

17

there has been contemptuous conduct, there is a point at which

18

it seems unfair to burden the taxpayers of this county with yet

19

more additional costs in what Your Honor has correctly observed

20

has already been a very expensive case.


THE COURT:

16:14:33

Well, I'm not going to rule on that right

23

what that is relevant to and why it is not unfair to introduce

24

it over the objection of plaintiffs if they haven't had a

25

sufficient opportunity to look into the matter, and I'm not

FR

16:14:00

now, either, but I'd suggest that you consider with specificity

IEN

22

16:13:28

I think the -- what we would like to be in a

DS

21

16:13:07

16:14:50

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 28 of 31

sure that I am willing to postpone this matter even further to

provide them that opportunity.

That being said, I am aware, at least generally, I

3
4

don't think the plaintiffs will contest that it costs money to

have a monitor, and that Maricopa County has spent some money

in the lawsuit that is not inconsiderable.

the monitor's billings, at least their amount, are public

record, so I can't understand -- I'm not sure that I would

object to you submitting those monthly bills as a matter of my

10

And I believe that

judicial notice.

16:15:38

And you might consider that, Mr. Young, that it seems

11
12

to me that even though there has been some protection of some

13

of the details of the monitor's billing, there hasn't been any

14

protection of the amount of the monitor's billing, and that is

15

a matter of public record.

16:15:54

So I don't know what else may be involved other than

16
17

the monitor's billing, but certainly the monitor's billing I'm

18

willing to consider and take judicial notice of, it seems to

19

me.

21

MR. YOUNG:

Your Honor, this is Stanley Young.

We

The document that Mr. Walker has very recently given

23

us is different from that, though, and we don't know what's in

24

there.

25

the purpose Mr. Walker describes, since it's only about the

FR

16:16:07

certainly don't have any argument with that.

IEN

22

So you might consider --

DS

20

16:15:09

And in any case, I'm not sure it's even relevant for
16:16:25

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 29 of 31

past and does not have any information about what any

particular future change to the injunction might cost.


So both on fairness grounds, notice grounds,

3
4

foundation grounds, and relevance grounds, we would object to

that document and ask for its exclusion.


THE COURT:

All right.

16:16:47

Well, why don't you see if you

can come up with something you can agree with, and if not, I'll

deal with it as it comes up.

Before I let everybody go, I just need to check with

9
10

my staff for one moment and make sure I don't have additional

11

matters to raise.

(Pause in proceedings.)

12

THE COURT:

13

You know, Mr. Young, my court reporter's

14

just asking, basically, do you have transcripts prepared of the

15

recordings that you're going to try to admit into evidence?

16
17
18

MR. YOUNG:

We do not as of the moment, Your Honor.

THE COURT:

Okay.

Is it your anticipation, then, that

MR. YOUNG:

Well, that would be ideal.

I suppose that

if we -- and I suppose we could work with the other parties to

21

develop transcripts, or just do -- have them prepared ourself.

22

But they are sound recordings -- excuse me -- involving in some

IEN

DS

20

23

cases multiple parties, three or four parties, and currently we

24

do not have transcripts.

FR

16:17:48

he would be taking down the text of these recordings?

19

25

16:17:01

THE COURT:

All right.

Well, think about that, and it

16:18:07

16:18:31

may be, even when transcripts are prepared, ofttimes the --

even assuming it's admitted into evidence, it's the recording

that is the evidence and not the transcript.

where we go from there, and you might consider how and if

you're going to present those matters, and we will take this

all up in the morning.

7
8
9

morning.

11
12
13
14
15
16
17
18

20
21

IEN

22
23
24

FR

25

We will do that, Your Honor.

THE COURT:

Thank you all.

DS

19

So we'll see

MR. YOUNG:

Thank you.

We'll see you in the

(Proceedings concluded at 4:18 p.m.)

10

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16:18:51

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Case 2:07-cv-02513-GMS Document 1547 Filed 11/11/15 Page 31 of 31

C E R T I F I C A T E

2
3
4
5
6

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

7
8

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

10
11

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.

15
16

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

17
18

2015.

20
21

IEN

22

DS

19

23
24

FR

25

s/Gary Moll