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Case 2:07-cv-02513-GMS Document 1912 Filed 12/16/16 Page 1 of 11

1 Cecillia D. Wang (Pro Hac Vice)
ACLU Foundation
3 Immigrants’ Rights Project
39 Drumm Street
4 San Francisco, CA 94111
5 Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Kathleen E. Brody
8 Daniel J. Pochoda
9 Brenda Muñoz Furnish
ACLU Foundation of Arizona
11 3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
12 Telephone: (602) 650-1854
13 Facsimile: (602) 650-1376


Attorneys for Plaintiffs (additional Attorneys
for Plaintiffs listed on next page)


19 Manuel de Jesus Ortega Melendres, ) CV-07-2513-PHX-GMS
et al., )
20 )
22 v. ) DISCOVERY (DOCS. 1884-85)
Joseph M. Arpaio, et al., )
24 )
Defendants. )
25 )
26 )

Case 2:07-cv-02513-GMS Document 1912 Filed 12/16/16 Page 2 of 11

1 Additional Attorneys for Plaintiffs:
Andre I. Segura (Pro Hac Vice) Julia Gomez (Pro Hac Vice)
ACLU Foundation Mexican American Legal Defense and
4 Immigrants’ Rights Project Educational Fund
5 125 Broad Street, 17th Floor 634 South Spring Street, 11th Floor
New York, NY 10004 Los Angeles, CA 90014
6 Telephone: (212) 549-2676 Telephone: (213) 629-2512
Facsimile: (212) 549-2654 Facsimile: (213) 629-0266

8 Anne Lai (Pro Hac Vice) James B. Chanin (Pro Hac Vice)
9 401 E. Peltason, Suite 3500 Law Offices of James B. Chanin
10 Irvine, CA 92697 3050 Shattuck Avenue
Telephone: (949) 824-9894 Berkeley, CA 94705
11 Facsimile: (949) 824-0066 Telephone: (510) 848-4752
Facsimile: (510) 848-5819

13 Stanley Young (Pro Hac Vice) Tammy Albarran (Pro Hac Vice)
14 Covington & Burling LLP Lauren E. Pedley (Pro Hac Vice)
15 333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065 Covington & Burling LLP
16 Telephone: (650) 632-4700 One Front Street
Facsimile: (650) 632-4800 San Francisco, CA 94111
Telephone: (415) 591-7066
18 Facsimile: (415) 955-6566










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1 Movants Arpaio, Sheridan, and Sousa seek to improperly engage in a fishing expedition
2 through their requests for discovery of all communications between the Court and its Monitor
3 and for permission to depose the Monitor concerning all such communications from the time of
4 his appointment. 1 (Doc. 1885.) Movants’ motion is extraordinary, unprecedented, and
5 fundamentally improper. The Court should deny their motion for the same reasons it should
6 deny their underlying motion for recusal of the Court and Monitor—the motion is precluded as
7 untimely, and Movants have failed to demonstrate that the Court has engaged in any
8 impropriety, or even the appearance thereof, that would justify this extreme request.
9 I. Movants’ Discovery Motion Should Be Denied As Untimely.
10 Movants filed this discovery motion concurrently with their motion for recusal of the

11 Court and its Monitor for alleged improper ex parte communications. As explained in detail in

12 Plaintiffs’ opposition to Movants’ motion for recusal, that motion is patently untimely and must

13 be denied under controlling Ninth Circuit authority—Movants were aware of the

14 communications underlying their recusal motion for well over a year, and in many cases well

15 over two years, failed to raise these issues in a timely fashion, and continued voluntarily to work

16 with the Monitor over that same period of time. See also Order Denying Mot. to Suspend

17 Proceedings at 2-3 (Doc. 1900). Movants were required to raise these issues at the earliest

18 possible time following the discovery of their potential grounds for recusal and failed to do so.

19 Movants cannot achieve an end run around the timeliness requirement by seeking

20 discovery concerning communications of which they have now known for years. As explained

21 by this Court in denying Movants’ motion to suspend proceedings, “Because the Sheriff cannot

22 obtain the recusal of this court or the vacation of its orders when it did not timely seek such

23 recusal . . . , he cannot seek to achieve discovery into a matter that he has forfeited the

24 opportunity to timely raise. The Sheriff cannot achieve through misdirection what the law


27 Movants have not set forth any grounds on which non-parties Sheridan and Sousa have
standing to move for discovery.
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1 otherwise provides.” Id. at 5. For this reason alone, Movants’ motion for discovery should be
2 denied.
3 Further, Movants have been provided with ample opportunity by the Court to submit
4 specific requests for discovery of information related to the Monitor for consideration by the
5 Court in a timely fashion, but have failed to do so. They should not be permitted to do so now
6 and disrupt ongoing compliance efforts by the Parties, the Monitor, and the Court. For example,
7 during the resumed stage of civil contempt proceedings over a year ago, Defendants indicated
8 that they intended to seek the Monitor’s billing records. 2 The Court instructed Defendants to
9 file a motion for that information—“if you’re going to ask for things that I would at least think
10 might be privileged, I would ask you to set forth what it is you want; why you want it; and why
11 you think, to the extent the privilege might apply, that you’re entitled to receive it.” Trans. of
12 Aug. 28, 2015 Status Conf. at 31 (attached as Ex. A); see also Trans. of Aug. 21, 2015 Status
13 Conf. at 61 (attached as Ex. B) (“Why don’t you file your motion.”). A week later, Movants
14 indicated that they would be seeking to depose the Monitor. The Court again asked Movants “to
15 tell us why you want it, what you want.” Trans. of Sept. 4, 2015 Status Conf. at 62 (attached as
16 Ex. C). Movants did not file any requests. Movants should now also be barred from moving for
17 discovery when such requests could have been made in a timely fashion. See, e.g., Fed. R. Civ.
18 P. 26(b)(2)(C)(ii).

21 Movants also claim that the Court has prohibited them from accessing the Monitor’s
detailed billing records, and thus, they are unable to determine the extent of the Monitor’s
22 communications with the Court. Movants, however, fail to mention that at the hearing in
which the Court proposed the procedure through which the County could appoint a walled-
23 off employee to review the detailed billing records, Defendants conceded that they did not
wish to view those records. See Trans. of May 14, 2014 Status Conf. at 26 (attached as Ex.
24 D) (“[L]et me say, is this on behalf of my clients. I, as counsel, have no interest in seeing Mr.
25 Warshaw’s bills in any extent. . . . My clients, I will represent to the Court, have no desire to
take generalized bills or specific bills to try to discern what he’s doing or what he might
26 do.”). Further, as the Parties have all previously agreed to this confidential process and
ensure this would be the case to the Monitor, the Court should not reverse course based
27 solely on Movants’ conclusory allegations of possible bias.

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II. Movants Have Provided No Valid Justification For The Discovery Sought, And
Their Requests Appear Calculated To Disrupt Compliance Efforts And Cause The
2 Court’s Recusal.
3 While Movants’ motion for discovery should be denied simply as untimely, more

4 fundamentally, Movants have failed to provide any remotely valid justification to support this

5 extraordinary request. Further, these requests appear calculated at this stage in the proceedings

6 to improperly force the recusal of the Court, which Movants have to date been unsuccessful at

7 achieving otherwise.

8 Movants have not provided any controlling Ninth Circuit authority or even relevant case

9 law that would support their purported entitlement to open-ended discovery of all

10 communications between the Court and the Monitor over a nearly three-year period of time.

11 While the use of court-appointed monitors or special masters is commonplace, discovery of their

12 activities and that of courts in monitoring compliance is not. In the few cases that have

13 considered such discovery, courts have held movants to an appropriately high burden. See, e.g.,

14 In re Brooks, 383 F.3d 1036, 1044 (D.C. Cir. 2004) (“Accordingly, the petitioners have not

15 shown a clear and indisputable right to the extraordinary relief they request.”); Cobell v. Norton,

16 237 F. Supp. 2d 71, 100 (D.D.C. 2003) (“Oral examination of a judicial or quasi-judicial officer

17 as to matters within the scope of his adjudicative duties should be permitted only upon a strong

18 showing of bad faith or improper behavior.”); Coleman v. Schwarzenegger, 2007 WL 4276554,

19 at *1-2 (N.D. Cal. Nov. 29, 2007) (recognizing that court-appointed special masters act in the

20 name of the court and have quasi-judicial immunity); Gary W. v. State of Louisiana Dep’t of

21 Health & Human Resources, 861 F.2d 1366, 1368-69 (5th Cir. 1988) (upholding district court’s

22 decision to quash subpoena and notice of deposition upon special master); McCoy v.

23 Belmont, 1999 WL 33117446 at *2 (D. Conn. Aug. 9, 1999) (refusing to permit discovery upon

24 special master due to movants’ failure to show “extreme and extraordinary circumstances”); cf.

25 Fed. R. Evid. 605 (“The presiding judge may not testify as a witness at the trial.”). 3

26 3
Movants attempt to distinguish Coleman and Gary W. in a footnote on the basis that the
27 protected communications in those cases went to the merits of the case instead of “ex parte
communications.” Doc. 1885 at 5 n.1. The circularity of their argument is astounding.
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1 As explained fully in Plaintiffs’ opposition to Movants’ motion for recusal, Movants fail
2 to demonstrate that any of the communications of which they complain were improper or even
3 raise the appearance of impropriety and do not in their motion for discovery explain why they
4 should be permitted to take discovery regarding such communications. Here, Movants cite only
5 to instances in which the Court makes the obvious observation that it is in frequent
6 communication with its appointed Monitor. Doc. 1885 at 1. Yet, courts commonly appoint
7 monitors to oversee compliance with their orders as part of their inherent equitable power. See
8 Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 544 (9th Cir. 1987)
9 (explaining that inherent equitable power provided authority for the appointment of a
10 compliance monitor); United States v. Apple, Inc., 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014).
11 And, as this Court has recognized, the “Monitor is an agent of the court and, in this role, has
12 communicated with the Court as necessary to oversee and coordinate Defendants’ compliance
13 with existing judicial orders on the Court’s behalf.” Doc. 1164 at 20. This is nothing novel or
14 suspect.
15 Simply having conversations with its own appointed monitor cannot disqualify a court
16 from presiding over a case. See Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215,
17 1220 (9th Cir. 2014) (“A judge need not remove himself from all legitimate activity in
18 administering a complex estate simply because he has motions pending.”); In re Brooks, 383
19 F.3d at 1043 (“[I]t is not surprising that the district judge met many times with the Special
20 Master and the Court Monitor; he had to oversee and to coordinate their efforts on the court’s
21 behalf during four years of complicated and contentious litigation.”); United States v. Yonkers
22 Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991) (denying recusal motion based on
23 communications between judge and court-appointed advisor). See also 32 Am. Jur. 2d Federal
24 Movants only seek communications here because they believe—though have not provided
25 evidence to support their belief—that such communications improperly went to the merits of
this case and thus prejudiced Movants. Movants cannot have it both ways. Cf. In re Brooks,
26 383 F.3d at 1044 (D.C. Cir. 2004) (“In other words, discovery is warranted because the
district court’s refusal to allow it creates an appearance of partiality that can be dispelled
27 only by allowing discovery. The circularity of this argument is manifest.”).

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1 Courts § 64 (“There is no appearance of partiality created by the Court’s contacts, during the
2 remedial stage of the case, with pertinent parties to implement obligations already imposed by
3 prior valid Court orders.”).
4 As detailed in Plaintiffs’ response to Movants’ recusal motion, all of the communications
5 of which Movants now complain were proper in light of the need for communications between
6 the Court and its agent in the Court’s oversight of implementation of a complex remedy. Most
7 were administrative or logistical; all were disclosed to all parties affording Movants an
8 opportunity to respond. As a result, none qualify as improper ex parte communications.
9 Movants have also not provided any reason for a reasonable observer to view the Court or
10 Monitor as partial, much less established any prejudice or even potential prejudice as a result of
11 these communications.
12 The Ninth Circuit cases set forth by Movants in support of their purported “entitlement”
13 to this discovery are inapposite, concerning cases in which a party—not a court-appointed
14 officer—communicated substantive information going directly to the merits of the case to a
15 court prior to the court’s judgment, not information necessary to post-judgment administration
16 of a complex remedy. See Guenther v. C.I.R., 889 F.2d 882, 883-85 (9th Cir. 1989) (ordering an
17 evidentiary hearing after the Commissioner of Internal Revenue—a party to the case—filed an
18 ex parte memorandum to the tax court prior to judgment in which the court upheld the
19 Commissioner’s assessment of tax fraud penalties); Ludwig v. Astrue, 681 F.3d 1047, 1050-51
20 (9th Cir. 2012) (ordering same after FBI agent filed an ex parte report with judge indicating that
21 a social security claimant was faking injuries, where judge appeared to place weight on that ex
22 parte report in his decision). Movants’ out-of-circuit decisions are not controlling and also do
23 not involve court-appointed monitors overseeing post-judgment compliance. Instead, those
24 decisions involve agents that the court hired to assist in making determinations on the merits.
25 See Edgar v. K.L., 93 F.3d 256, 257 (7th Cir. 1996) (finding recusal mandatory after judge
26 appointed a panel of three experts to investigate the state’s mental institutions alleged to operate
27 unconstitutionally, where the experts reported their findings on the merits to the judge ex parte
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1 and the judge explained that the meeting’s purpose was to preempt a major legal question); In re
2 Kensington Int’l Ltd., 353 F.3d 211, 221-23 (3d Cir. 2003) (requiring discovery of ex parte
3 communications between court-appointed consultants who were authorized to handle disputed
4 evidentiary matters and who had known conflicts of interest). The Third Circuit in Kensington
5 also ordered discovery only after finding that the record was “inadequate and incomplete.” Id.
6 By contrast, Movants have not, aside from conclusory statements, demonstrated that the existing
7 record here is insufficient for the Court to rule on the merits of Movants’ recusal motion.
8 This Court should not permit Movants to achieve through discovery what they have been
9 unable to achieve otherwise—impeding compliance efforts and forcing the recusal of the Court
10 and its Monitor. As numerous courts have cautioned, opening judicial and quasi-judicial
11 officials to discovery carries enormous risks of creating partiality or the appearance thereof
12 when there was none originally and of facilitating litigants’ manipulation of the judicial system
13 via the recusal process. Cobell, 237 F. Supp. 2d at 100-01 (“Therefore, for this Court to set a
14 precedent by authorizing the deposition of the special masters would allow parties to any
15 complex litigation requiring the use of special masters to achieve indirectly what they would be
16 unable to achieve directly—namely, the recusal of the presiding judge.”); McCoy, 1999 WL
17 33117446, at *2 (“Should a judge be vulnerable to subpoena as to the basis of every action taken
18 by him [or her], the judiciary would be open to frivolous attacks upon its dignity and integrity,
19 and interruption of its ordinary and proper functioning.”).
20 III. Movants’ Discovery Requests Are Overly Broad And Do Not Comply With The
Court’s Order.
Movants have not only failed to justify their request for this discovery, but their requests
fail to abide by this Court’s order and are impermissibly overly broad under the Federal Rules.
The Court should deny these frivolous and excessive requests. “District courts need not
condone the use of discovery to engage in fishing expedition[s].” Rivera v. NIBCO, Inc., 364
F.3d 1057, 1072 (9th Cir. 2004) (internal citations omitted).


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1 Movants’ initial motion for leave to file a discovery motion made no specific request for
2 discovery but simply stated that Movants are “entitled to discovery into the full scope of ex
3 parte communications between the Court and the Monitor.” Doc. 1855 at 2. In response to
4 concerns raised by Plaintiffs and Plaintiff-Intervenor regarding Movants’ overly broad request
5 and failure to comply with the meet-and-confer requirements of Local Rule 7.2, the Court
6 ordered Movants to provide all Parties with specific requests. See Trans. of Nov. 10, 2016
7 Status Conf. at 20 (Doc. 1884, Ex. C); see e.g., Fed. R. Civ. P. 34(b)(1) (requiring requests for
8 production of documents to “describe with reasonable particularity each item or category of
9 items to be inspected”). Rather than provide the Parties with any specific requests as ordered,
10 Movants effectively maintained their original dubious request for all communications between
11 the Monitor and the Court without any time or subject-matter limitation. See Doc. 1885 at 6
12 (asking for all written communications between the Monitor and the Court and a deposition of
13 the Monitor concerning all communications, written or oral, with the Court). Plaintiffs and
14 Plaintiff-Intervenor unsurprisingly did not agree to Movants’ purported discovery requests. As
15 Movants failed to specify their requests or even provide the Parties with any actual requests for
16 discovery as ordered by the Court, the Court should deny their motion.
17 Further, Movants’ requests are overly broad and do not meet the requirements of Rule 26.
18 Rule 26 provides that the scope of discovery must be limited to matters that are, among other
19 things, “proportional to the needs of the case” and where “the burden or expense of the proposed
20 discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1), (b)(2)(C) (limiting discovery
21 when outside of permissible scope). Here, Movants have not only failed to demonstrate any
22 need for this discovery, but have not provided an explanation as to how any purported benefit of
23 this incredibly far-reaching and onerous discovery will outweigh the burden and expense of
24 conducting it. Movants seek discovery over a nearly three-year period of time, during which
25 both the Monitor and the Court have actively sought to enforce MCSO’s compliance with the
26 Court’s remedial orders—a time in which MCSO’s efforts to comply have ranged from

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1 contemptuous to unacceptably slow. Movants cannot be permitted to engage in this unjustified
2 and limitless inquisition.
3 For the foregoing reasons, the Court should deny Movants’ motion for leave to seek
4 discovery of communications between the Court and the Monitor.

6 RESPECTFULLY SUBMITTED this 16th day of December 2016.

8 /s/ Andre Segura
9 Cecillia D. Wang (Pro Hac Vice)
Andre I. Segura (Pro Hac Vice)
10 ACLU Foundation
Immigrants’ Rights Project
Kathleen E. Brody
12 Daniel Pochoda
Brenda Muñoz Furnish
ACLU Foundation of Arizona
14 Anne Lai (Pro Hac Vice)
15 Stanley Young (Pro Hac Vice)
Tammy Albarran (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Covington & Burling, LLP

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

James B. Chanin (Pro Hac Vice)

Attorneys for Plaintiffs







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I hereby certify that on December 16, 2016, I electronically transmitted the attached
document to the Clerk’s office using the CM/ECF System for filing. Notice of this filing
will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by
mail as indicated on the Notice of Electronic Filing.
Dated this 16th day of December 2016.

8 /s/ Andre Segura