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Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 1 of 23

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Cecillia D. Wang (Pro Hac Vice)
cwang@aclu.org
Nida Vidutis*
nvidutis@aclu.org
ACLU Foundation
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950

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Daniel J. Pochoda
dpochoda@acluaz.org
Brenda Muñoz Furnish
bmfurnish@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376

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*Application for admission pro hac vice forthcoming

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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.,

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Plaintiffs,

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v.
Joseph M. Arpaio, et al.,
Defendants.

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CV-07-2513-PHX-GMS

PLAINTIFFS’ SUPPLEMENTAL
MOTION FOR AWARD OF
ATTORNEYS’ FEES AND RELATED
NON-TAXABLE EXPENSES

Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 2 of 23

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Additional Attorneys for Plaintiffs:
Andre I. Segura (Pro Hac Vice)
asegura@aclu.org
ACLU Foundation
Immigrants’ Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654

Julia Gomez (Pro Hac Vice)
jgomez@maldef.org
Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266

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

James B. Chanin (Pro Hac Vice)
jbcofc@aol.com
Law Offices of James B. Chanin
3050 Shattuck Avenue
Berkeley, CA 94705
Telephone: (510) 848-4752
Facsimile: (510) 848-5819

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Stanley Young (Pro Hac Vice)
syoung@cov.com
Covington & Burling LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Tammy Albarran (Pro Hac Vice)
talbarran@cov.com
Lauren E. Pedley (Pro Hac Vice)
lpedley@cov.com
Covington & Burling LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566

Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 3 of 23

TABLE OF CONTENTS

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2

I.

Introduction ...................................................................................................................... 1

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II.

The Court Should Award Supplemental Fees and Costs to Plaintiffs as the
Prevailing Party ................................................................................................................ 2

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III. The Court Should Award Fees and Costs Incurred in Litigating the Civil
Contempt Proceedings Against All Contemnors and the County. ................................... 2
IV. The Court Should Award Fees and Costs Incurred in Overseeing Compliance
with this Court’s Orders, Including the October 2, 2013 Supplemental
Injunction.......................................................................................................................... 7
V.

The Court Should Award Fees and Costs Incurred in Preparing and Litigating
Their Original Fee Application and the Present Fee Application .................................... 8

VI. The Amount of Plaintiffs’ Requested Award Is Reasonable. ........................................ 10

11

A.

The Hours Requested by Plaintiffs’ Counsel Are Reasonable. .......................... 10

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B.

The Hourly Rates Sought by Plaintiffs’ Counsel Are Reasonable. .................... 11

C.

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The Amount of Non-Taxable Expenses Sought by Plaintiffs’ Counsel Is
Reasonable.......................................................................................................... 13

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VII. Conclusion ...................................................................................................................... 14

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Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 4 of 23

TABLE OF AUTHORITIES

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Page(s)

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Cases

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Anderson v. Director, OWCP,
91 F.3d 1322 (9th Cir. 1996) ............................................................................................... 9

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Bernardi v. Yeutter,
951 F.2d 971 (9th Cir. 1991) ............................................................................................... 9
Clark v. City of Los Angeles,
803 F.2d 987 (9th Cir. 1986) ............................................................................................... 9
Commodity Futures Trading Comm’n v. Premex, Inc.,
655 F.2d 779 (7th Cir. 1981) ............................................................................................... 3
Cook v. Ochsner Found. Hosp.,
559 F.2d 270 (5th Cir. 1977) ............................................................................................... 3
Dang v. Cross,
422 F.3d 800 (9th Cir. 2005) ............................................................................................. 13
Donovan v. Burlington N., Inc.,
781 F.2d 680 (9th Cir. 1986) ............................................................................................... 3

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Gates v. Rowland,
39 F.3d 1439 (9th Cir. 1994) ............................................................................................... 9
Gonzalez v. City of Maywood,
729 F.3d 1196 (9th Cir. 2013) ............................................................................................. 9
Harcourt Brace Jovanovich Legal & Prof’l Publications, Inc. v. Multistate
Legal Studies, Inc.,
26 F.3d 948 (9th Cir. 1994) ................................................................................................. 3
Harley–Davidson, Inc. v. Morris,
19 F.3d 142 (3d Cir. 1994) .................................................................................................. 3
Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y,
774 F.3d 935 (9th Cir. 2014) ............................................................................................... 6
John Zink Co. v. Zink,
241 F.3d 1256 (10th Cir. 2001) ........................................................................................... 3
Jones v. Espy,
10 F.3d 690 (9th Cir. 1993) ................................................................................................. 6
Keith v. Volpe,
833 F.2d 850 (9th Cir. 1987) ........................................................................................... 7, 8

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Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc.,
539 F.3d 1039 (9th Cir. 2008) ............................................................................................. 6
McGrath v. Co. of Nevada,
67 F.3d 248 (9th Cir. 1995) ............................................................................................... 10
Missouri v. Jenkins,
491 U.S.274 (1989) ........................................................................................................... 13
Motley v. Yeldell,
664 F. Supp. 557 (D.D.C. 1987) ......................................................................................... 3
Oviatt v. Pearce,
954 F.2d 1470 (9th Cir. 1992) ........................................................................................... 10
Pennsylvania v. Delaware Valley Citizens’ Council,
478 U.S. 546 (1986) ............................................................................................................ 7
Perry v. O’Donnell,
759 F.2d 702 (9th Cir. 1985) ....................................................................................... 3, 5, 8
Portland Feminist Women’s Health Center v. Advocates for Life, Inc.,
877 F.2d 787 (9th Cir. 1989) ........................................................................................... 3, 6
Prison Legal News v. Schwarzenegger,
608 F.3d 446 (9th Cir. 2010) ............................................................................................... 7
TWM Mfg. Co. v. Dura Corp.,
722 F.2d 1261 (6th Cir. 1983) ............................................................................................. 3
United States v. United Mine Workers of Am.,
330 U.S. 258 (1947) ............................................................................................................ 3

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Statutes

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42 U.S.C. § 1988 .............................................................................................................. passim

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42 U.S.C. § 1988(b)............................................................................................................. 2, 14

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PLAINTIFFS’ SUPPLEMENTAL MOTION FOR AWARD
OF ATTORNEYS’ FEES AND RELATED NON-TAXABLE EXPENSES

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I.

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Introduction
Plaintiffs respectfully submit this motion to request a supplemental award

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pursuant to 42 U.S.C. § 1988 for fees and nontaxable costs incurred by Plaintiffs’

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counsel from October 3, 2013 through May 31, 2016 in the total amount of

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$5,985,727.74.1 The great majority of the fees and costs were incurred during a lengthy

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contempt proceeding necessitated by contemnors’ refusal to admit the fact that they had

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intentionally violated the Court’s orders. See Doc. 1027 [4/23/15 Tr. 590:3] (Sheriff

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Arpaio testifying that “it wasn’t intentional”). Plaintiffs were required to prove the

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intentional nature of the violations and succeeded in doing so. See, e.g., Doc. 1677, ¶ 65

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(“Sheriff Arpaio knowingly and intentionally ensured that the MCSO did not comply

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with the preliminary injunction”), ¶ 229 (“Sheridan was intentionally untruthful to the

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Monitor” about the May 14, 2014 order), 20:27-28 (former Chief Sands “[k]nowingly

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and [i]ntentionally [f]ail[ed] to [c]omply with the [p]reliminary [i]njunction”), ¶ 127

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(‘[i]t is not possible for the Court to discern how Lieutenant Sousa thought that the HSU

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practice in this regard was permissible under the injunction”). Contemnors, as well as

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the County (for whom the Sheriff and his subordinates acted) should now be jointly and

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severally liable to the prevailing parties for attorneys’ fees and costs. The Court should

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award the reasonable fees requested by Plaintiffs for the contempt proceeding, for their

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necessary efforts to secure compliance with the Court’s order, and for their attorney fee

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applications.

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A bill of costs for taxable costs in the amount of $88,662.74 is submitted separately.

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1

Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 7 of 23

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II.

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In its September 11, 2014 Order (the “Fees Award”) [Doc. 742], this Court
previously awarded attorneys’ fees and related non-taxable expenses to Plaintiffs
pursuant to 42 U.S.C. § 1988. The Court found that, as prevailing parties on their civil
rights claims, Plaintiffs were entitled to an award of attorneys’ fees under § 1988. The
Court awarded fees and costs incurred by Plaintiffs’ counsel in litigating this case, for
the period ending October 2, 2013. Plaintiffs now respectfully request a supplemental
award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988(b) for the period
between October 3, 2013 and May 31, 2016. See the accompanying
Declarations of Stanley Young, Cecillia D. Wang, Daniel J. Pochoda, Jorge M. Castillo,
Anne Lai and James B. Chanin, and Exhibits thereto. The following table summarizes
the amounts sought:

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The Court Should Award Supplemental Fees and Costs to Plaintiffs as the
Prevailing Party

ACLU-AZ

ACLU-IRP

Covington

MALDEF

Anne Lai

James B.
Chanin

FEES (By Year)

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2013

$26,917.50

$27,798.55

$198,017.50

$13,035.00

$10,157.50

$0.00

2014

$85,546.50

$67,135.41

$283,598.50

$21,752.50

$56,559.50

$0.00

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2015

$371,341.00

$1,099,664.41

$2,458,919.50

$69,480.00

$91,234.81

$84,456.00

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2016

$47,460.50

$150,982.98

$244,259.00

$90,687.50

$10,769.66

$110,263.00

Subtotal

$531,265.50

$1,345,581.35

$3,184,794.50

$194,955.00

$168,721.47

$194,719.00

$13,634.02

$52,632.68

$297,592.68

$1,831.54

$0.00

$0.00

$13,634.02

$52,632.68

$297,592.68

$1,831.54

$0.00

$0.00

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$5,620,036.82

COSTS

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TOTAL

Subtotal

Grand Total:

III.

$365,690.92
$5,985,727.74

The Court Should Award Fees and Costs Incurred in Litigating the Civil
Contempt Proceedings Against All Contemnors and the County.
In addition to being prevailing parties in this litigation and entitled to

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supplemental fees under 42 U.S.C. § 1988, Plaintiffs should also receive fees and costs

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as a remedy for the civil contempt that they proved. See also Doc. 606, ¶ 157 and p. 58

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at lines 18-22 (providing for attorneys’ fees to be paid by Defendants, which includes

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the County, for successful litigation to enforce the Supplemental Permanent Injunction,

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which incorporates the preliminary injunction). “An award of attorney’s fees for civil
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Case 2:07-cv-02513-GMS Document 1755 Filed 07/20/16 Page 8 of 23

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contempt is within the discretion of the district court.” Harcourt Brace Jovanovich

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Legal & Prof’l Publications, Inc. v. Multistate Legal Studies, Inc., 26 F.3d 948, 953 (9th

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Cir. 1994). Civil contempt sanctions may be designed to compensate for actual losses

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caused by noncompliance with the underlying order, and may include fees, imposed as a

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“fine” payable to the complainant, based on evidence of the complainant’s actual loss.

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Portland Feminist Women’s Health Center v. Advocates for Life, Inc., 877 F.2d 787, 790

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(9th Cir. 1989); United States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947).

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Sheriff Arpaio and Chief Sheridan have already admitted that “a court may assess

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attorneys’ fees as a sanction for the willful disobedience of a court order.” Doc. 1687 at

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11:11-16 (quoting Chambers v. NASCO, Inc., 501 U.S. 32 (1991) and Fleischmann

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Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967)) (internal quotation marks

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omitted). But, of course, such remedial sanctions may be awarded even where civil

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contempt is not “willful.” Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir. 1985) (citing

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Cook v. Ochsner Found. Hosp., 559 F.2d 270, 272 (5th Cir. 1977)). 2

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Plaintiffs have been forced to incur significant legal costs in this matter, due to

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Sheriff Arpaio’s and MCSO’s failure to comply with this Court’s injunctive and other

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orders and their refusals to admit the willfulness of such violation. A compensatory

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See also Donovan v. Burlington N., Inc., 781 F.2d 680, 684 (9th Cir. 1986). Most of
the circuits that have addressed the question have found that willfulness is not a
prerequisite for an award of attorneys’ fees. See Harley–Davidson, Inc. v. Morris, 19
F.3d 142, 148-49 (3d Cir. 1994) (no finding of willful contempt necessary for an award
of fees); Cook v. Ochsner Found. Hosp., 559 F.2d 270 (5th Cir. 1977) (same); TWM
Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983) (same); Commodity Futures
Trading Comm'n v. Premex, Inc., 655 F.2d 779 (7th Cir. 1981) (same); John Zink Co. v.
Zink, 241 F.3d 1256 (10th Cir. 2001) (same); Motley v. Yeldell, 664 F. Supp. 557
(D.D.C. 1987) (same).

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award of Plaintiffs’ requested fees, which comprise only a reduced-rate subset of

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Plaintiffs’ actual fees,3 is reasonable and justified under the circumstances of this case.

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Much of the cost resulted directly from Defendants’ repeated failure to comply

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with discovery obligations in relation to the civil contempt proceedings. Defendants’

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obstructionist tactics and unreasonable delays multiplied the need for status conferences,

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meet-and-confer telephone calls and related correspondence, motions practice, and,

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ultimately, the use of additional attorneys to complete parallel review of Defendants’

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massive email archive production days before relevant depositions were to take place.

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For instance, by August 2015, Defendants had yet to produce discovery which this Court

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had ordered produced at least seven months earlier, in February. See Doc. 881 at 3 (Feb.

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12, 2015 order requiring production of responsive materials by February 27, 2015); Doc.

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1208 at 2-3 (July 31, 2015 order requiring production of responsive categories of

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documents by dates certain); Doc. 1271 at 1 (Aug. 26, 2015 order requiring rolling

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production, after Defendants failed to produce documents by earlier ordered dates).

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Between April and September 2015, fourteen status conferences were held, many of

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which included argument regarding Defendants’ failure to provide discovery. Then, on

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September 2, 2015, MCSO produced over 5,000 archived email files, and two days later,

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produced over 9,000 more. Defendants’ document dump, just days before the relevant

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depositions and less than a month before the evidentiary hearing was to resume on

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September 24, 2015, required Plaintiffs to enlist multiple staff and junior attorneys to

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complete document review on the short turnaround times necessary to complete

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numerous depositions and maintain the schedule of evidentiary hearing dates subsequent

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Plaintiffs have omitted a number of actual costs and fees from their present fee request,
including fees pertaining to the appeals filed by Mr. Montgomery and by Mr. Zullo, and
other fees and costs omitted in the exercise of billing judgment.

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4

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to the initial dates in April 2015.4 See Young Decl. ¶ 6. The Court may award fees and

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costs incurred in such circumstances as damages resulting from Defendants’ contempt.

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Perry, 759 F.2d at 705 (award of fees appropriate because the “cost of bringing the

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violation to the attention of the court is part of the damages suffered by the prevailing

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party”).

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Moreover, Plaintiffs incurred even more fees and costs because Defendants

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attempted to obstruct Plaintiffs’ efforts to obtain relief by unsuccessfully seeking

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recusal of the Court notwithstanding their earlier waivers of the grounds that they

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asserted for recusal. See Doc. 1164 (Order Denying Motion for Recusal or

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Disqualification); Young Decl. Ex. B, 9th Cir. Case No. 15-72440, Doc. 14 (Order

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denying Sheriff Arpaio and Chief Deputy Sheridan’s petition for mandamus relief).

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Plaintiffs were required to incur these costs in order to obtain relief for the intentional

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violation of their rights and should be compensated for them.

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Sheriff Arpaio’s and Chief Sheridan’s “multiple intentional misstatements of fact

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while under oath” (Doc. 1677 at 3:2) during the civil contempt hearing further

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multiplied the costs that Plaintiffs needed to incur in order to uncover the truth about the

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violations of Plaintiffs’ rights, which included improper detentions, seizures of property,

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the concealment of evidence of the same and the manipulation of the MCSO’s internal

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affairs investigation function to protect wrongdoers within the department. Other

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executives and employees of MCSO were also less than candid in their communications

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with the Court and the Court’s Monitor. See, e.g., Doc. 1677, ¶¶ 342-348, 654. A fuller

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list of contemnors’ intentional, willful and purposeful violations of the Court’s orders

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and of their and MCSO’s intentional lies and misstatements to the Court is attached to

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this memorandum as Appendix A.

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The first deposition in preparation for the continued contempt hearing took place on
September 3, 2015 (Lt. Seagraves), and depositions continued until September 23, 2015.

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The manifold malfeasance in the MCSO’s internal affairs system, which

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continued through the contempt proceeding, meant that Plaintiffs’ litigation efforts were

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necessary to bring the many MCSO violations to light. Id. at ¶¶ 387-875, 875 (IA

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“policies and practices were used by the Defendants to avoid appropriate accountability

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for their treatment of members of the Plaintiff class”); 488-89 (“The Court finds that as a

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matter of fact, Sheriff Arpaio achieved what he desired in appointing Chief Olson to the

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position—a biased decision-maker who imposed no discipline on anyone for the

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MCSO’s 17 month violation for their Court’s orders. The assignment of Chief Olson to

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make the disciplinary decision in IA #2014-543 in light of his partiality, his failure to

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acceptably perform that function, and his dismissal of all of the charges without

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individually considering them, constitutes unacceptable internal affairs practices. These

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practices both violate and threaten continued violations of the rights of the Plaintiff class

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that this Court’s orders have sought to vindicate”); 690 and 692 (“Sergeant Tennyson’s

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investigation ended up being what he and Chief Deputy Sheridan intended it to be: a

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perfunctory whitewash . . . The Court finds that Defendants engaged in a cursory and

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bad faith investigation, and therefore IA #2014-295 is void.”). The Court should grant

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Plaintiffs’ request for the fees and costs that they had to incur as a result.

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All contemnors should be jointly and severally liable for the attorney fee award,

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along with the County. Portland Feminist Women’s Health Ctr. v. Advocates for Life,

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Inc., 877 F.2d 787, 790 (9th Cir. 1989) (defendants can be jointly and severally liable for

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a plaintiff’s costs of bringing a contempt proceeding, including reasonable attorneys’

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fees); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935,

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958-59 (9th Cir. 2014) (holding that plaintiffs could recover attorneys’ fees incurred in

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litigating contempt proceedings, and suggesting that defendants could be jointly and

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severally liable for such award); Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 539

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F.3d 1039, 1041-42 (9th Cir. 2008) (discussing with approval district court’s order

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holding defendants jointly and severally liable for attorneys’ fees assessed as civil

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contempt sanction); Jones v. Espy, 10 F.3d 690, 691-92 (9th Cir. 1993).
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IV.

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The Court Should Award Fees and Costs Incurred in Overseeing
Compliance with this Court’s Orders, Including the October 2, 2013
Supplemental Injunction.
Some portion of Plaintiffs’ work on the contempt issues can also be attributed to

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their efforts to ensure and secure compliance with the Court’s orders, including the

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October 2, 2013 Supplemental Injunction. Independent of their victory in the contempt

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proceeding, their compliance-related fees and costs should also be awarded because 42

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U.S.C. § 1988 authorizes an award of attorneys’ fees for post-judgment monitoring

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activities. Such an award is therefore a proper fee award to Plaintiffs for having

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prevailed in this Court’s 2013 judgments. Docs. 579, 606. See Prison Legal News v.

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Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (holding that § 1988 authorized

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recovery of attorneys’ fees for monitoring state officials’ compliance with a settlement

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agreement); Keith v. Volpe, 833 F.2d 850, 860 (9th Cir. 1987) (affirming an award of

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attorneys’ fees under § 1988 for services rendered in monitoring implementation of a

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consent decree); see also Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S.

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546, 559 (1986) (“Several courts have held that, in the context of the Civil Rights

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Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, post-judgment monitoring of a

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consent decree is a compensable activity for which counsel is entitled to a reasonable

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fee.”).

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Post-judgment monitoring is a “necessary aspect of plaintiffs’ prevailing in the

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case,” as it will lead to relief occurring “more speedily and reliably.” Keith, 833 F.2d at

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857; see also Prison Legal News, 608 F.3d at 451-52 (“monitoring serves the same

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purpose: causing defendants to fulfill their obligations ‘more speedily and reliably’”;

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“the common purpose of both § 304(d) and § 1988 [is] to promote citizen enforcement

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of important federal policies”). Because of this, the Ninth Circuit has expressly rejected

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the idea that only monitoring that leads to a court-issued judgment or contempt finding

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is compensable. See id. at 451; Keith, 833 F.2d at 857.

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The existence of a separate Monitor does not preclude an award of attorneys’ fees
to the prevailing party for monitoring activities where, as here, the monitoring services
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are not duplicative. Id. at 858. Plaintiffs’ counsel have spent hundreds of hours in

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overseeing Defendants’ compliance with the Supplemental Injunction. Plaintiffs’

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counsel have actively participated in Court-ordered training programs, attended

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numerous hearings before the Court on various issues that have arisen post-judgment,

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worked closely with the Monitor and provided feedback and input on various topics,

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including the Monitor’s quarterly reports.

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An award of fees is particularly justified where, as here, Sheriff Arpaio’s and

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MCSO’s lack of candor with this Court, and their demonstrated, repeated and willful

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non-compliance with this Court’s orders, triggered and prolonged the civil contempt

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proceeding. Perry, 759 F.2d at 705 (award of fees may be appropriate as a remedial

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measure because “cost of bringing the violation to the attention of the court is part of the

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damages suffered by the prevailing party”) (quoting Cook, 559 F.2d at 272). As the

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Monitor noted in his Seventh Report, dated April 19, 2016, “[Defendants] have stalled . .

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. in their operational, or Phase 2, compliance.” Doc. 1667 at 3. Under the

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circumstances, Plaintiffs’ counsel have had to pay particularly close attention to

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enforcing the terms of the Court’s Supplemental Permanent Injunction and, indeed,

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found it necessary to augment the Plaintiffs’ counsel team by associating new co-

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counsel in order to cover necessary work to enforce Defendants’ compliance. See

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Wang. Decl. ¶ 8. Plaintiffs’ counsel therefore need to continue their compliance

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activities in order to prevent Defendants from continuing to defy the Court and violate

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the rights of Plaintiffs. They should be compensated for that work in order to avoid

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removing a needed safeguard on Defendants’ behavior and rewarding Defendants for

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their defiance.

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V.

The Court Should Award Fees and Costs Incurred in Preparing and
Litigating Their Original Fee Application and the Present Fee Application
This Court has already determined that Plaintiffs are prevailing parties on their

civil rights claims and are accordingly entitled to an award of fees pursuant to 42 U.S.C.
§ 1988. Doc. 742. Accordingly, Plaintiffs are also entitled to an award for the time
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spent in preparing and litigating their fee application. “‘[I]t’s now well established that

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time spent in preparing fee applications under 42 U.S.C. §1988 is compensable.’”

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Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) (quoting Anderson v.

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Director, OWCP, 91 F.3d 1322, 1325 (9th Cir. 1996); Gates v. Rowland, 39 F.3d 1439,

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1448-49 & 1451 (9th Cir. 1994) (affirming an award of attorneys’ fees for preparing and

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litigating the fee application); Bernardi v. Yeutter, 951 F.2d 971, 977 (9th Cir. 1991)

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(awarding fees and costs incurred in litigating the fee petition); Clark v. City of Los

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Angeles, 803 F.2d 987, 992 (9th Cir. 1986) (“We, like every other court that has

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considered the question, have held that the time spent in establishing entitlement to an

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amount of fees awardable under section 1988 is compensable.”); see also Anderson, 91

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F.3d at 1325 (“Such compensation must be included in calculating a reasonable fee

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because uncompensated time spent on petitioning for a fee automatically diminishes the

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value of the fee eventually received.”). “This is so, even where the district court does

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not award the applicant the full amount of fees he requests.” Gonzalez, 729 F.3d at

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1210.

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Plaintiffs’ counsel spent a substantial number of hours in compiling their

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December 20, 2013 fee application (the “Original Fee Application”), which required

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accounting for nearly six years of work, across multiple organizations. The application

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required reviewing and tabulating voluminous detailed time records and invoices,

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drafting a full set of opening and reply briefs, including numerous declarations and

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exhibits, and arguing the issue before the Court. See Docs. 639, 655. The time spent on

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those activities, which occurred after the October 2, 2013 cutoff date for the Original Fee

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Application, is included in the present application.5

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Plaintiffs’ counsel spent some time in 2014 and January-February 2015
preparing materials which were then contemplated for a fee application that would
include the time spent on the Original Fee Application. As the contempt proceeding
developed in early 2015, however, Plaintiffs decided to wait until the conclusion of the

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(continued…)

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VI.

The Amount of Plaintiffs’ Requested Award Is Reasonable.
Plaintiffs have calculated their fee request by multiplying the number of hours

reasonably expended by reasonable hourly rates, according to the lodestar method. See,
e.g., McGrath v. Co. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). This fee calculation
method is strongly presumed to be reasonable. See Oviatt v. Pearce, 954 F.2d 1470,
1482 (9th Cir. 1992).
A.

The Hours Requested by Plaintiffs’ Counsel Are Reasonable.

As was the case for the Original Fee Application, and consistent with their
general practice, each member of Plaintiffs’ counsel kept and maintained detailed daily
records showing the time he or she worked on this case and a brief description of that
work. Those records are included in the present application. Plaintiffs’ counsel have
carefully scrutinized their records and reduced the number of hours for each lawyer to
exclude time entries that are redundant, excessive or otherwise unnecessary, including
time spent by, for example, paralegals, summer associates and interns, as well as
attorneys new to the litigation in coming up to speed on the status and background of the
case, and other time that was duplicative. While counsel have represented Plaintiffs
throughout this litigation on a pro bono basis, the billing records submitted to the Court
reflect the same exercise of billing judgment and discretion accorded to typical billable
matters. Young Decl. ¶ 36; Pochoda Decl. ¶ 8; Wang Decl. ¶ 12; Castillo Decl. ¶ 12;
Chanin Decl. ¶¶ 18-19. In the exercise of billing judgment, Plaintiffs also have omitted
time spent in traveling for this litigation, a significant compensable cost. See Young
Decl. ¶ 36; Wang Decl. ¶ 12; Chanin Decl. ¶ 19.

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contempt proceeding to file their next fee application, so the material prepared in 2014
and early 2015 relating to the time spent on the Original Fee Application was saved for
use in the present application. The time spent in 2014-15 in preparing that material is
included in the present application. (Plaintiffs’ time spent after May 31, 2016 in
preparing and briefing the present application will be included in a future fee
application.)

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Plaintiffs’ counsel at the Covington & Burling firm have further reduced their

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requested hours by completely omitting the time of more than 30 attorneys and staff

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members, totaling more than 600 hours, who assisted with various projects when

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needed, including several attorneys and staff who were called upon to assist as a result

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of Defendants’ delays in document production until the eve of depositions and the

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resumed contempt hearing dates in September. Young Decl. ¶ 36. Plaintiffs’ counsel at

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the ACLU Immigrants’ Rights Project have further reduced their requested hours by

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excluding all time spent on this litigation by paralegals, junior attorneys who were added

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to the case during the contempt proceeding, and legal interns. Wang Decl. ¶ 12. The

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remaining hours in the fee request are reasonable because they represent the work of a

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core team of attorneys, assisted by a small number of additional staff attorneys retained

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for document review (described above, Section II). Young Decl. ¶ 6.

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B.

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Plaintiffs’ counsel’s hourly rates are fully consistent with, if not lower than, the

The Hourly Rates Sought by Plaintiffs’ Counsel Are Reasonable.

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billing rates of other attorneys of similar experience, within their particular markets. See

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Docs. 639, 639-3, 639-4, 639-5, 639-6, 639-7; Chanin Decl. ¶¶ 15-16. Although the

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lodestar calculation is typically based upon the reasonable hourly rates of the forum

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district, the Court based its prior Fees Award on Plaintiffs’ counsel’s higher outside

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forum rates because no local law firm was able or willing to undertake representation of

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Plaintiffs. Doc. 742. Counsel for Plaintiffs have mostly based their requested hourly

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rates in the present application on the rates already awarded by the Court in the Fees

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Award and deemed to be reasonable, and not on their otherwise standard billing rates,

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which are in many cases substantially higher. The rates previously awarded by the

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Court for 2013 have been adjusted slightly upward for 2014, 2015 and 2016 and/or are

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applied as appropriate. Young Decl. ¶¶ 13-35; Pochoda Decl. ¶¶ 9-13; Wang Decl. ¶¶

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16-19; Castillo Decl. ¶¶ 5-7, 13; Chanin Decl. ¶ 16. In several instances, however, the

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rates found by the Court in the September 11, 2014 Fees Award are not appropriate

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starting points for the fees to be awarded now, and are therefore not used in the present

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application.

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Dan Pochoda:

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In the Court’s earlier fee award, Mr. Pochoda was awarded a rate of $350 in this

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case for work from 2008 to 2013. Since the time of that decision, Mr. Pochoda has had

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two determinations of his Phoenix market rate given his senior status and over forty

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years of litigation experience. As set out in his attached Pochoda Declaration, the

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Honorable Susan R. Bolton, U.S. District Court Judge for the District of Arizona, and

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Peter L. Shaw, Appellate Commissioner for the Ninth Circuit Court of Appeals, found a

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rate of $525 for Dan Pochoda to be reasonable. See Pochoda Decl. ¶¶ 17-18 (citing

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Lopez-Valenzuela v. Maricopa County, No. 08-660, Doc. 289 (D. Ariz. June 25, 2015)

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(attached as Ex. A to Pochoda Decl.); Lopez-Valenzuela v. Arpaio, No. 11-16487, Doc.

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124 (9th Cir. Dec. 3, 2015) (attached as Ex. B to Pochoda Decl.). Mr. Pochoda is

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seeking that same rate for the work in this case from late 2013 through the first half of

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2016. See Pochoda Decl. ¶ 15-16.

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Andre Segura and Anne Lai:

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Plaintiffs request a rate of $425 for 2013 for Mr. Segura and Ms. Lai, and

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reasonable projected rates of $445 for 2014, $465 for 2015, and $485 for 2016. See

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Wang Decl. ¶¶ 18-19; Lai Decl. ¶¶ 8-13. Plaintiffs request that the rates for Mr. Segura

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and Ms. Lai for 2013 be the same as that which the Court already awarded to Lesli

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Gallagher of the Covington & Burling firm, i.e., $425. Doc. 742 at 3. Like Mr. Segura

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and Ms. Lai, Ms. Gallagher graduated from law school in 2006. During the relevant

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time period, Ms. Gallagher was based in San Diego, California. The Court earlier

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granted Andre Segura, a 2006 law school graduate, a rate of $350 for 2013. Doc. 742.

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As with Mr. Pochoda, the Ninth Circuit Appellate Commissioner and U.S. District Court

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awarded Mr. Segura a higher rate, $405, for work performed in years prior to 2013. See

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Wang Decl. ¶ 18; Pochoda Decl. Ex. B at 12 (Appellate Commissioner awarding rate of

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$405 for work performed in 2011-12); Pochoda Decl. Ex. A at 6-7 (District Court
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awarding rate of $405 for work performed in 2009-11). Mr. Segura remains based in

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New York City at the National Legal Department of the American Civil Liberties Union.

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Ms. Lai, a 2006 law school graduate, was earlier awarded a variety of rates, including

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$275 for 2011, $300 for 2012 and $310 for 2013, based on the Maricopa County market.

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Doc. 742. For a majority of the time covered by Plaintiffs’ previous fee application, Ms.

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Lai had been employed by the ACLU of Arizona in Maricopa County. Lai Decl. ¶¶ 2,

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12. For the entire time period covered by the current application, by contrast, Ms. Lai

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has been based in Irvine, California; she therefore requests hourly rates that are within

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the range of reasonable market rates for lawyers of comparable experience in Southern

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California. Lai Decl. ¶¶ 5, 8-13. The requested rate for Mr. Segura and Ms. Lai of $425

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for 2013 and projected rates for subsequent years are thus reasonable based on prior fee

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awards and comparable market rates.

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C.

The Amount of Non-Taxable Expenses Sought by Plaintiffs’ Counsel
Is Reasonable.

Non-taxable costs are also recoverable under § 1988, as part of the “reasonable
attorney’s fee.” Missouri v. Jenkins, 491 U.S.274, 285 (1989). Such costs include
Plaintiffs’ out of pocket expenses which “would normally be charged to a fee paying
client.” Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005) (quotations omitted) (citing
Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)).
Plaintiffs have calculated their non-taxable costs and provided supporting
documentation for them. Young Decl. ¶ 37 and Ex. L; Pochoda Decl. ¶ 20-21 and Ex.
D; Wang Decl. ¶ 15 and Exs. C and D; Castillo Decl. ¶ 15 and Ex. 2. The amount
requested by Plaintiffs for non-taxable expenses is therefore reasonable.

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VII.

Conclusion
Based on the foregoing, Plaintiffs respectfully request an award of $5,985,727.74

pursuant to 42 U.S.C. §1988(b) and the Court’s power to compensate Plaintiffs for the
contempt, allocated as set forth in the table at page 2, supra.
By: /s/ Stanley Young
Cecillia D. Wang (Pro Hac Vice)
Andre I. Segura (Pro Hac Vice)
Nida Vidutis*
ACLU Foundation
Immigrants’ Rights Project

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Daniel Pochoda
Brenda Muñoz Furnish
ACLU Foundation of Arizona

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Anne Lai (Pro Hac Vice)

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Stanley Young (Pro Hac Vice)
Tammy Albarran (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Covington & Burling, LLP

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Julia Gomez (Pro Hac Vice)*
Mexican American Legal Defense and
Educational Fund

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James B. Chanin (Pro Hac Vice)

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*Application for admission pro hac vice
forthcoming

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CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2016, I electronically transmitted the attached

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document to the Clerk’s office using the CM/ECF System for filing. Notice of this filing

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will be sent by e-mail to all parties by operation of the Court’s electronic filing system

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or by mail as indicated on the Notice of Electronic Filing.

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Dated this 20th day of July, 2016
By: /s/ Stanley Young

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Appendix A (all citations are to the Court’s May 13, 2016 Findings of Facts, Doc. 1677)
Intentional, Willful, Purposeful Violations of Court Orders
● Sheriff Arpaio’s failure to implement the preliminary injunction “was both knowing and
intentional.” ¶ 11
● “Sheriff Arpaio’s insistence that the MCSO retained the authority to detain unauthorized
persons without any state grounds for detention, does not indicate a failure to understand
the preliminary injunction, but rather a refusal to abide by it.” ¶ 31
● “Sheriff Arpaio knowingly ignored the Court’s order because he believed his popularity
resulted, at least in part, from his enforcement of immigration laws.” ¶58
● “Sherrif Arpaio’s press releases indicate an awareness that the injunction was entered
and that Arpaio nevertheless continued to enforce all federal immigration laws.” ¶62
● “The Court finds that Sheriff Arpaio knowingly and intentionally ensured that the
MCSO did not comply with the preliminary injunction.” ¶ 65
● “The Court thus finds that Chief Deputy Sheridan was fully apprised of the terms of the
preliminary injunction and fully informed of Sherrif Arpaio’s decision to ignore it. He
was responsible for implementing its terms, and he did nothing to do so.” ¶ 92
● “Instead of directing the HSU to cease such operations, or at least to conduct them
within the bounds of the preliminary injunction, Chief Sands, together with Sheriff
Arpaio, pressured the HSU to increase the number of unauthorized aliens they arrested
in their operations.” ¶108
● Chief Sands “misled at least counsel for Arpaio, if not his own subordinates, about the
actual nature and effect of the injunction on the MCSO’s operations. As such, he was
aware of the Court’s order and did not take reasonable steps to implement it.” ¶ 117.
● “Chief Deputy Sheridan was intentionally untruthful to the Monitor” ¶ 229
● “Sheridan again intentionally and untruthfully stated that neither he nor Chief Trombi
remembered who directed Trombi to send the email, and that Trombi stated it was a
collective decision of all parties.” ¶ 230
● “[T]he Court finds that in the July 20 meeting between the PSB staff and the Monitor
Team, the Monitor Team asked if any further IDs had been found. The MCSO thus
violated the Court’s orders when Captain Bailey responded that no further IDs had been
found and no member of the MCSO disclosed the existence of the Knapp IDs during the
meeting. The MCSO did so with the intention of concealing the existence of the IDs
from the Monitor, the Parties, and the Court.” ¶ 330
● “The Court therefore finds that when Chief Deputy Sheridan ‘suspended’ the IA
investigation, he did so in a knowing and bad faith attempt to avoid the Court’s order
requiring the MCSO to disclose the newly found IDs to the Monitor.” ¶ 341
● “When Captain Bailey answered ‘no’ to the Monitor’s question pertaining to
identifications, regardless of the phrasing of the question, he knowingly violated the
orders of the Court. Chief Deputy Sheridan, Captain Bailey, and Ms. Iafrate violated the
specific and direct orders of this Court without a justifiable basis for doing so.” ¶ 348

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● “Sheriff Arpaio personally did nothing to implement the Court’s order, and the MCSO
did not produce the 50 hard drives that Mr. Montgomery had given to the MCSO.” ¶ 355
● “Sheriff Arpaio did not follow the order of the Court that he personally direct the
preservation and disclosure of all the Montgomery documents. By failing to do so, he
violated the Court’s direct order.” ¶ 364

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Intentional Lies or Misstatements to the Court
● “Sheriff Arpaio testified that he did not intentionally violate this Court’s orders because
he delegated the responsibility of the MCSO’s compliance with the preliminary
injunction to his subordinates and to his legal counsel. (Doc. 1051 at Tr. 479, 482, 484–
85; see also Ex. 2219 at MELC209836 (“I don’t give the guidance. I have my lawyers
and subordinates that give guidance.”).) . . . . In light of the evidence and testimony at
the evidentiary hearing, that explanation is neither credible nor acceptable as a matter of
fact or law.” ¶¶ 32-33
● “Nevertheless, on April 23, 2015, the third day of the hearing, Sheriff Arpaio testified
that not only had the MCSO never been involved in investigating this Court but that he
was not aware that the Court or any of the Court’s activities had ever been investigated
by anyone. (Doc. 1083, Ex. 1.) He reaffirmed this statement three weeks after his initial
testimony in a statement made under penalty of perjury filed with the Court. (Id., Ex. 1
¶¶ 5, 7 (Sheriff Arpaio stating: “Judge Snow asked if I was aware of anyone
investigating him. I responded, ‘No[,]’ . . . [a]t no time was an investigation initiated
against Judge Snow or any of his family members.”).) These statements, made while
Arpaio was under oath, constitute deliberate misstatements of fact made in bad faith.” ¶
378
● “In his October testimony, Sheriff Arpaio attempted to explain his earlier testimony by
asserting that he simply did not think of Mr. Montgomery’s timelines when he was
asked the questions. (Doc. 1457 at Tr. 2457.) In light of the extent of Arpaio’s personal
participation in the Montgomery investigation, this testimony is not credible. Arpaio
further testified that what Montgomery was doing for him could not be called an
“investigation.” (Doc. 1458 at Tr. 2580.) This testimony is also not credible.” ¶ 379
● “Despite his position as second in command at the MCSO, Chief Deputy Sheridan
testified that he remained ignorant of the preliminary injunction until March 27, 2014. . .
This testimony is demonstrably false.” ¶ 68
● “[D]espite overwhelming evidence to the contrary, Chief Deputy Sheridan denies having
any knowledge of the injunction until March 2014.” ¶ 87
● “Chief Deputy Sheridan further testified that he was not involved in trial preparation,
and does not believe that he ever spoke to Mr. Casey until after the Melendres trial. The
Court finds these to be knowing misstatements.” ¶ 87
● “It is not credible that Chief Deputy Sheridan, as Arpaio’s immediate subordinate in
charge of all of MCSO’s operations, would have been wholly ignorant of a matter of
such importance to Arpaio.” ¶ 89

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“On the night the Court ordered the U.S. Marshalls to take custody of the IDs, Chief
Deputy Sheridan told the press that the IDs had never been disclosed by the MCSO
because nobody had ever asked for those IDs. In his testimony during the evidentiary
hearing, he was confronted with this statement and he indicated that he stands by it.
Chief Deputy Sheridan’s statement to the press was a knowing misstatement of fact. His
reassertion of that statement during the evidentiary hearing was also a knowing
misstatement of fact.” ¶¶ 325-26 (Citations omitted)
● “In his September testimony, Chief Deputy Sheridan testified that Mr. Montgomery
suggested investigating the Court only after the MCSO threatened to stop paying him to
investigate other matters, and that the MCSO rejected Montgomery’s invitation to
investigate the Court. . . The Court finds that Chief Deputy Sheridan’s testimony, made
under oath, constitutes deliberate misstatements of fact made in bad faith.” ¶¶ 383, 385
● “In his April 24, 2015 testimony, Chief Deputy Sheridan testified that he did not believe
there were any matters referred to the PSB for investigation related to the Seattle
investigation. . . the Court finds that he had intentionally concealed in his April 24
testimony the existence of such investigation.” ¶ 814

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