You are on page 1of 4

Case 2:16-cr-01012-SRB Document 159 Filed 06/16/17 Page 1 of 4

1
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 United States of America, No. CR-16-01012-001-PHX-SRB
10 Plaintiff, ORDER
11 v.
12 Joseph M. Arpaio,
13 Defendant.
14
15 At issue are Special Appearance of Non-Party Timothy J. Casey and Motion to
16 Quash Subpoena (“Mot.”) (Doc. 96) and Non-Party Timothy J. Casey’s Renewed Motion
17 to Quash Subpoena (“Renewed Mot.”) (Doc. 147).1
18 I. BACKGROUND
19 Mr. Casey represented Maricopa County and Defendant in his official capacity
20 during the Melendres2 case beginning in December 2007. (Doc. 111, Gov’t’s Resp. to
21 Mot. at 2 (“Resp.”); Doc. 111-1 at 1.) Mr. Casey served as the County’s attorney until
22 November 2014 when he withdrew. (Resp. at 2.) Mr. Casey was called to testify both in
23 court and at depositions during the Melendres case after his withdrawal. (Resp. at 3.) On
24 February 24, 2017, the Government served Mr. Casey with an initial subpoena in this
25
26 1
Non-Party Timothy J. Casey’s Renewed Motion to Quash Subpoena renews the
arguments set forth in the Special Appearance Motion to Quash Subpoena, so the Court
27 conducts an analysis of the initial Motion and denies both Motions for the reasons
specified below. (Renewed Mot. at 1-2.)
28
2
Melendres v. Arpaio, No.2:07-cv-02513-GMS (D. Ariz. 2007).
Case 2:16-cr-01012-SRB Document 159 Filed 06/16/17 Page 2 of 4

1 case, which Mr. Casey moved to quash on March 23, 2017. (Doc. 99, Ex. 1 at 2; Mot. at
2 1.) On May 22, 2017, the Government served Mr. Casey with a new subpoena. (Doc.
3 147-1, Ex. 1 at 2.) Mr. Casey then renewed his Motion to Quash Subpoena. (See
4 generally Renewed Mot.)
5 II. LEGAL STANDARD AND CONCLUSION
6 A. Attorney-Client Privilege
7 Mr. Casey argues that he and Defendant had an attorney-client relationship and
8 that the Government’s subpoena presumably seeks material protected by the attorney-
9 client privilege and work-product doctrine. (Mot. at 2-4.) The Government argues that
10 Mr. Casey’s communications with Defendant are not privileged because Mr. Casey did
11 not represent Defendant in his personal capacity. (Resp. at 1.)3 The Government further
12 argues that Maricopa County waived the attorney-client privilege as to Mr. Casey during
13 the Melendres case. (Resp. at 5.) “The attorney-client privilege ‘is the oldest of the
14 privileges for confidential communications known to the common law.’” United States v.
15 Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (quoting Upjohn Co. v. United States,
16 449 U.S. 383, 389 (1981).) “Unless applicable law provides otherwise, the Government
17 may invoke the attorney-client privilege in civil litigation to protect confidential
18 communications between Government officials and Government attorneys.” Id. at 170.
19 “Where courts have acknowledged the attorney-client privilege to apply to conversations
20 between government officials and government lawyers, they have construed the privilege
21 to mean that ‘the Government may invoke the attorney-client privilege,’ not that
22 officeholders in their personal capacity may invoke the privilege.” In re Grand Jury
23 Subpoena, JK-15-029, 828 F.3d 1083, 1092 (9th Cir. 2016) (internal citation omitted).
24 No attorney-client privilege extends to Mr. Casey’s communications with
25 Defendant as an individual because Mr. Casey represented Maricopa County and
26
3
Mr. Casey did not submit a Reply, and the Court does not consider the
27 Response’s arguments relating to Defendant’s withdrawn Motion to Preclude Testimony
of Timothy Casey. (See Doc. 97, Mot. to Preclude Testimony of Timothy Casey; Doc.
28 131, Notice of Withdrawal of Defendant Arpaio’s Mot. to Preclude Testimony of
Timothy Casey).

-2-
Case 2:16-cr-01012-SRB Document 159 Filed 06/16/17 Page 3 of 4

1 Defendant as the Sheriff. In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083, 1093
2 (9th Cir. 2016) (“[The former governor] may not himself invoke the privilege to protect
3 his communication with attorneys for the State of Oregon.”). Furthermore, neither
4 subpoena specifies what Mr. Casey will be called to testify regarding, although the
5 Government avers that it will “elicit only Mr. Casey’s testimony pertaining to the
6 preliminary injunction.” (See generally Docs. 99 & 147-1; Resp. at 5.) The Court cannot
7 quash a subpoena without knowing the scope of the testimony it seeks to elicit. Nothing
8 in this Order prevents Mr. Casey and his counsel from raising objections to questioning at
9 the trial. The same is true of any requests that Mr. Casey may object to on work-product
10 grounds.
11 B. Ethical Obligations
12 Mr. Casey also argues that complying with the subpoena would cause him to
13 violate the Arizona Rules of Professional Conduct regarding confidentiality. (Mot. at 4-
14 6.) The Government argues that the Federal Rules of Evidence govern the admissibility
15 of Mr. Casey’s testimony, not the Arizona Rules of Professional Conduct. (Resp. at 1.)
16 The Government further argues that an order from this Court would satisfy any ethical
17 obligations Mr. Casey would have under Ethical Rule 1.6. (Id. at 7-8.)
18 A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly
19 authorized in order to carry out the representation or the disclosure is
permitted or required . . . to comply with other law or a final order of a
20 court or tribunal of competent jurisdiction directing the lawyer to disclose
such information.
21
22 AZ ST S CT RULE 42 RPC ER 1.6.
23 Federal Rules of Evidence govern the admissibility of Mr. Casey’s testimony. See
24 United States v. Blackman, 72 F.3d 1418, 1424 (9th Cir. 1995) (“Congress cannot have
25 intended to allow local rules of professional ethics to carve out fifty different privileged
26 exemptions to the reporting requirements of 26 U.S.C. § 6050I.”) (quoting United States
27 v. Sindel, 53 F.3d 874, 877 (8th Cir. 1995)); see also United States v. Davidson, No. MC-
28 12-47-PHX-ROS, 2013 WL 7019211, at *1 (D. Ariz. Feb. 26, 2013) (“the Ninth Circuit

-3-
Case 2:16-cr-01012-SRB Document 159 Filed 06/16/17 Page 4 of 4

1 has recognized that local rules of professional ethics cannot be relied upon to resist
2 discovery in circumstances similar to the present.”). Even if the Federal Rules of
3 Evidence did not govern, the Arizona Rules of Professional Conduct permit the
4 disclosure of confidential matters pursuant to a court order. Mr. Casey may make
5 evidentiary or ethical objections to questions directed to him at trial.
6 IT IS ORDERED denying Special Appearance of Non-Party Timothy J. Casey
7 and Motion to Quash Subpoena (Doc. 96).
8 IT IS FURTHER ORDERED denying Non-Party Timothy J. Casey’s Renewed
9 Motion to Quash Subpoena (Doc. 147).
10 Dated this 16th day of June, 2017.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-