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11 Robert J. Moossy, Jr.
Deputy Assistant Attorney General
22 Steven H. Rosenbaum (NY Bar No. 1901958)
33 Timothy D. Mygatt (DC Bar No. 1021564)
Jennifer L. Mondino (NY Bar No. 4141636)
44 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
Cynthia Coe (DC Bar No. 438792)
66 Maureen Johnston (WA Bar No. 50037)
U.S. Department of Justice, Civil Rights Division
Special Litigation Section
88 601 D St. NW, Suite 5200
Washington, D.C. 20004
Attorneys for the United States
13 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
14 behalf of himself and all others similarly
situated; et al. UNITED STATES’
18 United States of America RENEWED MOTION FOR
Plaintiff-Intervenor, DISCOVERY OF EX PARTE
21 Joseph M. Arpaio, in his official capacity as
22 Sheriff of Maricopa County, AZ; et al.
22 Defendants.
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2 The motion for discovery of the Court and the Monitor submitted by Sheriff
3 Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa (collectively “Movants”), like their
4 motion for recusal, is untimely and unsupported by law, and it is also procedurally
5 defective. Accordingly, both the motion for discovery and the related motion for leave to
6 move for discovery should be denied.
8 A. The Appointment of the Monitor to Supervise Implementation of the
First Supplemental Injunction.
10 This Court issued the first supplemental permanent injunction on October 2,
11 2013. 1 See Supplemental Permanent Injunction/Judgment Order (October 2, 2013) (Doc.
12 606). The Court recognized that proper implementation of the relief was critical to
13 success. Accordingly, the relief included the appointment of an independent monitor
14 who would oversee and assess the progress of the Maricopa County Sheriff’s Office
15 (MCSO) in putting the reforms into place. See generally Doc. 606, ¶¶ 119-150. While
16 the Monitor would manage the on-the-ground implementation of the relief, the Court’s
17 order made clear that “[t]he Monitor shall be subject to the supervision and orders of the
18 Court, consistent with this Order,” and that the “ultimate arbiter of compliance is the
19 Court.” Doc. 606, ¶¶ 126, 128. Since appointment, the Monitor has worked closely with
20 the Parties on the details of implementation. In nine quarterly reports, all filed with the
21 Court and made publicly available, the Monitor described and evaluated MCSO’s
22 progress in coming into compliance.
24 1
The relevant facts concerning Movants’ motion for leave to move for discovery are
25 substantially similar to the facts relevant to the motion for recusal. The United States
26 incorporates by reference the facts section from its opposition to the motion for recusal.
United States’ Opposition to Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant
27 Sousa’s Motion for Recusal of the Court and its Monitor (“Opposition to Motion for
28 Recusal”), Doc. 1908 at 2-7.

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1 The communications Movants seek leave to discover are a part of the compliance
2 process and concern the Court’s supervision of the Monitor in carrying out his duties in
3 this case. Both in open court and in its orders the Court has made clear that the Court is
4 very much aware of, and keenly engaged in, supervising the monitor’s work in this case.
5 See generally Opposition to Motion for Recusal, Doc. 1908 at 3-5. Indeed, Movants have
6 known for years that the Court communicates regularly with the Monitor about
7 compliance issues, and only now do Movants seek discovery of ex parte communications
8 between the Court and the Monitor. (Doc. 1885 at 2).
9 B. The Motion for Leave to File Discovery
Movants filed a motion for leave to file a motion for discovery of ex parte
communications between the Court and its Monitor, along with a lodged motion for
discovery, on October 26, 2016. (Docs. 1855, 1856). The Court denied without
prejudice the motion for leave and stated that, “if necessary,” the motion for leave could
be “refiled after consulting with Plaintiffs.” Order, ¶ 2 (Nov. 10, 2016), Doc. 1877. At
the status conference on November 10, the Court also directed Movants to provide the
parties with “specific” discovery requests and to consult with Plaintiffs and the United
States with respect to the requested discovery. Transcript of Status Conference at 19:24-
20:14 (Nov. 10, 2016) (“So if you have specific requests . . . I think you do need to give
[the United States] those requests, and I’m denying the motion, I’m denying your motion
1855 [motion for discovery] without prejudice to your consultation with the parties
regarding what discovery it is you’re seeking.”). The Court also indicated that Movants
must comply with Local Rule 7.2(j), requiring that parties meet and confer before moving
for discovery, with respect to their motion for discovery. Id. at 18:8-14.
The parties engaged in limited discussions about the requested discovery both
briefly in person following the November 10 status conference and in a series of e-mails
on November 10, 11, and 14. But Movants did not provide the specific discovery
requests as the Court had indicated was necessary. Instead, Movants sent an email

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1 indicating that they would seek “(i) all written communications, electronic and hard copy,
2 between the Monitor’s office and the Court relating in any way to the Melendres case
3 since the appointment of the Monitor through to the present day; and (ii) a deposition of
4 the Monitor concerning all communications, written and oral, that he or members of his
5 office have had with the Court relating in any way to the Melendres case since his
6 appointment as Monitor through to the present day.” (Nov. 10, 2016, e-mail from
7 Michael W. Kirk and defense counsel to counsel for Plaintiffs and the United States.)
8 The United States objected that Movants have not “remotely met the burden for this
9 discovery request,” and that the “purported justification for this request is not only
10 without merit, but is untimely and has been long waived.” (Nov. 11, 2016, e-mail from
11 Plaintiffs’ counsel (Andre Segura)). The United States also objected to Movants’ failure
12 to provide “specific discovery requests” and to the scope of the description of the
13 requested discovery. (Nov. 14, 2016 e-mail from United States’ counsel (Cynthia Coe)).
14 Movants did not attempt to cure these deficiencies, and instead determined that the
15 parties were at impasse. See Nov. 14, 2016, e-mail from Charles Cooper to United
16 States’ counsel (Cynthia Coe); Docs. 1884, 1885.
The motion for discovery and the related motion for leave should be denied for the
same reasons as the motion for recusal: they are untimely and baseless. Moreover, the
instant motion for discovery and the related motion for leave seek discovery of
communications protected by quasi-judicial immunity and did not comply with this
Court’s orders and the local rules on discovery, each separately providing a basis to deny
the motions.
A. The Motion Should Be Denied as Untimely.
26 As this Court has acknowledged in its most recent Order (Doc. 1900), and as we
27 more fully discuss in our opposition to the pending motion for recusal, the motion for
28 recusal is untimely. Movants have presented this motion after being aware of the

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1 communications between the Court and the Monitor that they now present as a basis for
2 seeking recusal of the Court, and after they “have literally let years, millions of dollars
3 and thousands of hours of effort go by despite” their knowledge of those
4 communications. (Doc. 1900 at 3). That untimeliness is fatal to a motion for recusal, and
5 Movants’ recusal motion should be denied on that basis. See Opposition to Motion for
6 Recusal, Doc. 1908 at 7-9.
7 By the same reasoning, the instant motion for discovery is untimely. Movants
8 cannot seek discovery before establishing a need for that discovery, for example by
9 presenting a basis for their motion for recusal. See, e.g., In re Brooks, 383 F.3d 1036,
10 1044 (D.C. Cir. 2004) (refusing to allow discovery of ex parte communications between
11 the judge and special masters where there had been no prior showing of a ‘clear and
12 indisputable right’ to such discovery); Poppe v. U.S., No. 2:14-cv-02103, 2015 WL
13 4979618 (D. Nev. 2015) (granting motion to stay discovery pending ruling on motion to
14 dismiss asserting that opposing party’s claim is time-barred); St. Andre v. Henderson, No.
15 00-17398, slip op. at 447 (9th Cir. April 30, 2002) (finding that it was not abuse of
16 discretion to deny plaintiff’s request for continuance to conduct additional discovery
17 where plaintiff’s suit was time-barred and “[t]here does not appear to be any reason why
18 [plaintiff], had he ‘diligently pursued discovery,’ could not have obtained” evidence
19 supporting its claim). As the Court stated in its most recent Order, “[b]ecause the Sheriff
20 cannot obtain the recusal of this court or the vacation of its orders when it did not timely
21 seek such recusal . . . he cannot seek to achieve discovery into a matter that he has
22 forfeited the opportunity to timely raise. The Sheriff cannot achieve through misdirection
23 what the law otherwise prohibits.” (Doc. 1900 at 5). Thus, just as with the motion for
24 recusal, the Court should deny the motion for discovery as untimely.
25 In addition, Movants failed to meaningfully meet and confer with the parties
26 before moving for discovery and for leave to move for discovery. Pursuant to both
27 Paragraph 6(a) of the Court’s Case Management Order, Local Rule 7(j), and the Court’s
28 own instructions in open court, Movants were required and clearly directed to provide the

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1 parties with specific discovery requests and to meet and confer with the parties about
2 those requests, and to do so before renewing their motions for discovery and for leave to
3 file discovery. Case Management Order, ¶ 6(a) (Oct. 21, 2009), LRCiv 72.(j); Doc 201;
4 Transcript of Status Conference at 19:24-20:14 (Nov. 10, 2016). Movants have not done
5 so. Accordingly, the motions for discovery and for leave to file discovery are both
6 untimely and do not comply with the local rules and orders of this Court; they should be
7 denied on that basis.
8 B. Movants Are Not Entitled to Discovery Into the Communications
Between the Court and the Monitor.
10 Even if the Court were to overlook the procedural flaws of the motion for
11 discovery, the motion should be denied as without merit. Movants have not established a
12 right to discovery into the Court’s communications with its Monitor: Movants have
13 presented no evidence of bias or impropriety by the Court or the Monitor. See, e.g., In re
14 Brooks, 383 F.3d 1036, 1044 (D.C. Cir. 2004) (finding no showing of a ‘clear and
15 indisputable right’ to discovery of the ex parte communications between the judge and
16 special masters); AMAE v. State of California, 231 F.3d 572, 590-91 (9th Cir. 2000)
17 (refusing to allow discovery of court-appointed technical advisor “in the absence of any
18 evidence even suggesting an impropriety on the part of the district judge” in interaction
19 with court-appointed technical advisor). Rather, as the Court stated in its most recent
20 Order, Movants have presented only an “inaccurate generality of the [ ] assertion that any
21 communication between the Court and the Monitor would require recusal on any
22 implementation decision.” (Doc. 1900 at 5-6). Without “any evidence even suggesting
23 an impropriety” by the Court and its Monitor, Movants are not entitled to seek discovery
24 of the Court and its Monitor. AMAE, 231 F.3d at 590-91.
25 The only potential impropriety articulated in the motion for discovery – that the
26 Court’s order limiting the parties’ access to the Monitor’s billing records “impairs
27 Movants’ ability to determine the extent to which the Monitor has met ex parte with
28 Plaintiffs or the Court” (Doc. 1885, at 3) – is both baseless and is raised too late to be

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1 credible as an allegation of harm to Movants. The Order referenced by Movants was
2 issued on May 15, 2014. (Doc. 696) (“Billing Order”). The contents of this Order –
3 addressing the distinction between the Monitor’s public bills submitted to Maricopa
4 County and its more detailed bills submitted privately to the court – was discussed in
5 detail with the parties in open court on November 14, 2014, and the parties expressly
6 accepted its terms. Transcript of Status Conference at 18:8-27:5 (Nov. 14, 2014). If
7 Movants took issue with the Billing Order, they could, as contemplated by FRCP Rule
8 46, have stated the action they wanted the court to take or object to, along with the
9 grounds for this request or objection; instead, they waited more than 2 years to raise it, in
10 passing, in a motion for discovery. Even if Movants had raised this objection in a timely
11 and appropriate manner, however, the objection has no merit. The Billing Order does not
12 impair Movants’ ability to access necessary information about the Monitor’s activities;
13 rather, it entitles Maricopa County to receive from the Monitor “publicly available bills to
14 Maricopa County which includes a narrative description of all monitoring activities,”
15 (Doc. 1885, at 1), and provides a process by which the Deputy County Manager of
16 Maricopa County, who is designated to receive and review the more detailed time entries
17 submitted by the Monitor to the Court, can raise any concerns about those bills with the
18 Monitor and the Court or even, with the consent of the Monitor and the parties, publicly
19 dispute a charge. Doc. 1885, at 2-3. 2 Sheriff Arpaio has not exercised its option to
20 review the more detailed bills.
21 Movants assert a blanket rule that discovery of the court is permitted whenever the
22 court has engaged in substantive ex parte communications with its monitor. There is no
23 such blanket rule, and the cases cited by Movants in support of this rule are all
25 2
Indeed, as the Court noted in the October 28, 2015 hearing, Movants have not exercised
26 the option, presented repeatedly to them by the Court, to review the Monitors’ more
detailed invoices. Transcript of Hearing (Oct. 28, 2015), at 9:06:18 – 9:07:19. It
27 therefore strains credulity for Movants to now claim to be disadvantaged by limited
28 access to the Monitor’s bills.

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1 distinguishable from the one at hand. Guenther v. Commissioner of Internal Revenue,
2 889 F.2d 882 (9th Cir. 1989), for example, involved a situation in which the court had
3 made substantive decisions affecting the rights of the plaintiffs based on a memo
4 provided to it ex parte, and which the plaintiffs had not had an opportunity to address
5 until after the conclusion of the trial. Faced with that scenario, the Guenther court
6 permitted discovery to determine the substance of the memo. This is distinguishable
7 from the instant situation, however, in which Movants have not presented any evidence
8 that the court has made substantive decisions based on information provided to it through
9 communications with the Monitor. To the contrary, at any point where a dispute has
10 arisen where the Court may order additional relief, the Court has convened an evidentiary
11 hearing and has not relied upon any information provided by the Monitor in rendering its
12 decision.
13 In re Brooks, 383 F.3d 1036, 1044 (D.C. Cir. 2004), another of the cases relied on
14 by Movants, is similarly distinguishable. Movants cite this case for the proposition that
15 discovery will be allowed whenever the court and its monitor have discussed substantive
16 matters ex parte. The Brooks court found that petitioners had “not shown a ‘clear and
17 indisputable right’ to discovery of the ex parte communications between the judge and
18 special masters, matters the judge has expressly stated are procedural and non-
19 substantive.” Brooks, 383 F.3d at 1043. This is not the same, however, as stating that
20 discovery will be allowed in any instance where ex parte communications between the
21 Court and its Monitor go beyond strictly procedural matters. Indeed, the court’s
22 reasoning in Brooks counsels against discovery in the instant case. For one, the Brooks
23 court agreed that it was “not only appropriate but necessary” for the court to have
24 extensive and frequent communications with the special master. Id. at 1041. Moreover,
25 weighing in favor of denial of discovery into the ex parte communications between and
26 the court and the special master was the fact that the court had been forthright about the
27 nature and extent of those communications – just as the court has been transparent about
28 the nature and extent of its communications with the Monitor in this case. In other

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1 words, the deciding factor for the Brooks court in denying the discovery request was not
2 that the ex parte communications at issue addressed only procedural matters; rather, the
3 court considered that fact along with the relationship between the court and the special
4 master, the need for the court and the master to communicate regularly, and the extent to
5 which the court had made the parties aware of its communications with the master.
6 Brooks, 383 F.3d at 1043-4. The same factors considered by the Brooks court are
7 applicable here, regardless of whether the communications between the Court and the
8 Monitor addressed substantive matters, and weigh in favor of denying the instant motion
9 for discovery.
10 Movants also rely on the case of In re Kensington International, Ltd., 335 F.3d
11 211 (3d Cir. 2003), as support for their proposition that discovery into a Court’s ex parte
12 communications with its Monitor is warranted as a rule. Their reliance on this case,
13 however, is also misplaced. In Kensington, the court permitted discovery of ex parte
14 communications between the court and its advisors for several reasons, including that two
15 of the advisors already appeared to have a conflict of interest, and therefore the nature of
16 the communications they had with the court about the merits of the case informed
17 whether recusal was appropriate. See Kensington, 335 F.3d at 223. The court reasoned
18 that it needed to allow discovery in order to enable the parties to engage in the primary
19 inquiry of 28 U.S.C.A. §455(a), as to “’whether a reasonable person knowing all the
20 circumstances would harbor doubt concerning the judge’s impartiality,’” an inquiry that
21 the court reasoned “necessarily requires that we know all the circumstances.” Id. In the
22 instant case, Movants have not alleged any conflict of interest by the Monitor. Indeed, as
23 the Court noted in its most recent Order, MCSO “has acknowledged to the Court the
24 recent assistance of the Monitor as it pertains to his own reports showing continuing
25 systemic bias within the MCSO, and offers no assertion that such assistance resulted in
26 its harm.” (Doc. 1900 at 5, citing Doc. 1890 at Hr’g Tr. 27-28). The reasons guiding the
27 court in Kensington to permit discovery are simply not present in the situation before us.

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1 Movants’ reliance on Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), is similarly
2 unavailing. That case does not hold that discovery was appropriate. Instead, it stands for
3 the proposition that recusal is appropriate where there was evidence of ex parte
4 communications between the court and a panel of court-appointed advisors before trial
5 that went to the merits of the case, and where there was significant evidence that the
6 advisors had taken partisan positions on the disputed issues, influencing the court. Id. at
7 259-62. Here, the Monitor is charged with overseeing compliance with the Court’s
8 orders after a trial on the merits, not advising the Court on the merits of the case, and
9 there are no allegations or indications in this case of partiality by the Court or its Monitor.
10 Neither Edgar nor the other cases cited by Movants should control the court’s
11 determination of the instant motion.
12 C. Communications between the Court and its Monitor Are Protected by
Judicial Immunity.
14 The Monitor functions, both pursuant to the court’s orders establishing the
15 Monitor position and in practice, as an arm of the court. Order Appointing Monitor
16 (January 17, 2014), Doc. 649; Permanent Injunction, Doc. 606, ¶¶ 1(dd), 122, 126, 128-9.
17 The Monitor is therefore subject to quasi-judicial immunity for the actions it takes in
18 carrying out its assigned duties for overseeing MCSO’s compliance with the Court’s
19 orders. See, e.g., Marn v. McCully Associates, No. 14-15169, 2016 WL 4151230, at *1
20 (9th Cir. 2016) (court-appointed receiver “was entitled to absolute quasi-judicial
21 immunity for actions undertaken pursuant to, and approved by, court orders.”); Young v.
22 Bishop Estate, 2009 WL 3763029, at *9 (D. Haw. Nov. 6, 2009) (special master had
23 judicial immunity from claims “that related to and arise out of his performance of his
24 duties as a special master” to the court). As this Court has previously suggested to the
25 parties, that quasi-judicial immunity extends to requests for discovery about the
26 Monitor’s communications with the Court. See, e.g., Gary W. v. Louisiana Dep’t of
27 Health & Human Res., 861 F.2d 1366 (5th Cir. 1988) (special master was performing a
28 quasi-judicial function and thus was not subject to discovery); Coleman v.

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1 Schwarzenegger, 2007 WL 4276554 (E.D. Cal. 2007) (denying request for discovery of a
2 receiver based on immunity); Transcript of Status Conference at 28 (Aug. 21, 2015).
3 Gary and Coleman are analogous to the case at bar, in terms of the role of the
4 judicial officers involved in those cases and the nature of the communications between
5 those judicial officers and the court, and these cases should guide the Court’s reasoning
6 here. In Gary, the special master had “assigned functions as fact finder, monitor, and
7 hearing officer,” and was involved in presiding over the remedial phase of a class action
8 involving the rights of persons in out-of state institutions. Id. at 1367. Similarly, in
9 Coleman, the relationship at issue was that of a receiver in a litigation concerning the
10 reform of a prison health care system. These roles are similar to that of this Court’s
11 Monitor, who is charged with overseeing implementation of court orders governing large-
12 scale reforms and affecting the civil rights of a large class of persons. Furthermore, the
13 nature of the communications between the courts and the judicial officers in Gary and
14 Coleman are similar to the communication between this Court and its Monitor. In Gary,
15 the special master was providing recommendations to the court, and later preparing a
16 written report on those recommendations, relating to the parties’ implementation of court-
17 ordered remedies; and in Coleman, the receiver produced a series of reports about its
18 recommendations, which were a matter of public record. In sum, in Gary and in
19 Coleman, as in the case at issue, the judicial officers were functioning as an arm of the
20 court, and providing information to and communicating with the court as a necessary and
21 expected part of that function. Accordingly, that communication was protected by quasi-
22 judicial immunity – and the communication between this Court and its Monitor should
23 be, as well.
24 Movants do not dispute that the Monitor is subject to quasi-judicial immunity, but
25 rather attempt to distinguish Gary and Coleman as being about “requests to discover the
26 work product of a court-appointed officer for purposes of issues related to the merits of
27 the case.” (Doc. 1885 at 5 (italics omitted)). In so doing, however, they misconstrue the
28 reasoning of these decisions and their relevance to the case at hand. In neither case was

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1 the fact that the discovery sought “work product” dispositive. In both cases, the
2 discovery included requests both to depose the special master or receiver and to require
3 responses to a subpoena duces tecum. Gary, 861 F.2d at 1368; Coleman, 2007 WL
4 4276554, at *1. In both cases, the courts held that the discovery was inappropriate
5 because the special master or receiver was performing a quasi-judicial function. Gary,
6 861 F.2d at 1369; Coleman, 2007 WL 4276554, at *1. Moreover, the discovery requests
7 proposed by Movants do include requests for the Monitor’s work product; they are
8 seeking, among other things, copies of all written communications between the Monitor
9 and the Court, so Gary and Coleman cannot be distinguished on the grounds Movants
10 urge.
11 Movants also argue that Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), “makes clear
12 that the refusal of discovery on the ground of judicial privilege is itself strong evidence
13 that recusal is required.” (Doc. 1885 at 6). Here, of course, the Court has not yet ruled
14 on the instant motion for discovery; thus it seems that the Movants raise this argument to
15 warn the Court that asserting judicial privilege as a basis for denying their discovery
16 requests will invite Movants to redouble their efforts to seek recusal of the Court. This is
17 a manifestly circular, and flawed, argument. See, e.g., Brooks, 383 F.3d 1036, 1044
18 (D.C. Cir. 2004) (noting the “manifest” “circularity” of the petitioner’s argument in
19 Edgar that the court’s “refusal to permit discovery regarding the nature of ex parte
20 contacts” “creates an appearance of partiality that can be dispelled only by allowing
21 discovery”). Furthermore, Edgar does not address whether quasi-judicial immunity is
22 appropriate for communications between a court and its agent overseeing compliance
23 with a court order after trial, which is what is at issue here. Instead, as described above,
24 Edgar is a case about communications between the court and advisors about the merits of
25 the case before trial, and where there was strong evidence that the advisors had taken
26 partisan positions on the disputed issues. Edgar, 93 F.3d at 259-61. Indeed, the advisors
27 were likely to be witnesses at trial. Id. at 259. The relationship between the court and its
28 advisors in Edgar bears little resemblance to that between the Court and the Monitor,

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11 where the Court is supervising the Monitor as it ensures compliance with the Court’s
22 orders, and there is no allegation of impropriety by the Court or the Monitor.
For the foregoing reasons, the United States respectfully requests that the Court
deny both the motion of Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa for
discovery of ex parte communications between the Court and the Monitor and the related
motion for leave to file the motion for discovery.
99 Respectfully submitted this 16th day of December, 2016.
Robert J. Moossy, Jr.
11 Deputy Assistant Attorney General
12 Civil Rights Division
13 Steven H. Rosenbaum
14 Chief, Special Litigation Section
15 Timothy D. Mygatt
16 Deputy Chief

17 /s/ Jennifer L. Mondino
18 Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
19 Matthew J. Donnelly (IL Bar No. 6281308)
20 Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
21 Trial Attorneys
22 U.S. Department of Justice
Civil Rights Division
23 Special Litigation Section
24 601 D St. NW
Washington, D.C. 20004
25 Tel. (202) 353-1121
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3 I certify that on or about December 16, 2016, I filed the foregoing through the
4 Court’s CM/ECF system which will serve a true and correct copy of the filing on
5 counsel of record.
6 /s/ Cynthia Coe