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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA


IN AND FOR THE COUNTY OF PIMA

ROY WARDEN, ) No. C20153232


)
Plaintiff, )
)
vs. )
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PHYLLIS RUSSEL, et al., )
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Defendants. )
)

BEFORE THE HONORABLE BRENDEN J. GRIFFIN


Judge of the Superior Court
Division 1

OFFICIAL REPORTER'S TRANSCRIPT


TELEPHONIC HEARING
DEFENDANT'S MOTION FOR LEAVE TO FILE
MOTION FOR SUMMARY JUDGMENT
---------------------
May 30, 2018
Tucson, Arizona

Reported by Nichole Forrest, CSR, RDR, CRR, CRC


Certified Reporter No. 50862
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1 APPEARANCES
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4 For the Plaintiff:


Roy Warden, In Proper Person, appearing telephonically
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7 For the DEFENDANT:


Christopher M. Pastore, Esquire, appearing telephonically
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Reporter Note: Due to telephonic interference, some words
11 could not be made out clearly.
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1 PROCEEDINGS
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3 (The following proceedings held in open court.)


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5 * * *
6

7 THE COURT: Good afternoon. This is Judge


8 Griffin. We're on the record in Case No. 20153232.
9 Appearances, please. Hello?
10 MR. PASTORE: Chris Pastore, on behalf of
11 defendants.
12 MR. WARDEN: Roy Warden, pro se, plaintiff.
13 THE COURT: Thank you both for being here.
14 You're both on the phone. We do have a court reporter.
15 So if both of you could remember to speak up, speak
16 clearly, speak slowly, and make sure you pause to make
17 sure that everyone is done speaking, so we can have a nice
18 clean record.
19 We are here for a number of things. There
20 is a motion for leave to file a motion for summary
21 judgment, and there was a response to that. Then there is
22 also a pending discovery dispute for which I received some
23 information and I read through that as well.
24 I would like to start with the motion for
25 leave to file a motion for summary judgment. Mr. Pastore,
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1 anything additional you have to add to that?


2 MR. PASTORE: Just briefly, Your Honor. The
3 parties filed -- or Mr. Warden filed a number of amended
4 complaints throughout this process. We filed motions to
5 dismiss. Each motion to dismiss was granted, at least in
6 part, eliminating one or more claims. And Mr. Warden kept
7 filing, and we were up to four amended complaints.
8 When we got to that point, Judge Aragon said
9 no more dispositive motions. I sought clarification on
10 whether that meant the motion for summary judgment. And
11 Judge Aragon mentioned that since the case would be taken
12 over by another Judge, at that time we didn't know who it
13 would be, that he wanted to keep that in place.
14 But I think that is -- so that's why we
15 requested leave. But I don't believe that those motions
16 for -- a motion to dismiss won't have anything to do with
17 or should limit, in any way, my client's ability and
18 rights and entitlement under Rule 56 to file motions for
19 summary judgment.
20 While I understand plaintiff's response
21 talked about the Judge Aragon mentioning disputes of fact
22 when we were at the motion to dismiss stage, it's not the
23 same standard and there are different bases for pursuing
24 the motion for summary judgment at this point. So I don't
25 see any reason why defendant shouldn't be entitled to file
5

1 a motion for summary judgment.


2 THE COURT: Thank you.
3 Mr. Warden, your thoughts?
4 MR. WARDEN: Yeah. This is absolutely a
5 nonsensical argument. I do understand the standard for
6 summary judgment, and it has to do with whether or not
7 there are material facts in dispute.
8 I set forth, in my response, a limited
9 response, by the way -- I wasn't sure if you were going to
10 actually entertain this argument today. But I filed a
11 limited response, and I set forth the reasons why there
12 were facts in dispute and that the previous Court had
13 found facts in dispute in terms of the exhibits that I had
14 attached to my response and all of that.
15 It's a nonsensical argument, Judge. I've
16 been through this kind of thing before in federal court.
17 It seems to be a double standard, if the attorneys are
18 allowed great latitude to come back and make the same
19 arguments over and over again. But if a pro se ever tried
20 that, he would have his case thrown out of court.
21 Now, there are material facts in dispute.
22 They're set forth as exhibits in my limited response to
23 his motion. You've read them. I'm not going to go
24 through and read them now. I presume you've read them and
25 you understand them. I don't have the document right in
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1 front of me at this moment, having the other document open


2 in terms of discovery issue.
3 But it's very, very clear, there are
4 material facts in dispute. Mr. Pastore knows it, and he's
5 only filing this motion for the defendant, generating more
6 fees and extending the litigation. It's very clear in my
7 response.
8 I don't know what else I can add to that.
9 If the Court has a question that it wants to ask me
10 regarding that, I'll be happy to respond. But I wouldn't
11 know what else to say.
12 THE COURT: All right. Thank you. I
13 have --
14 MR. PASTORE: Your Honor, may I respond to
15 that?
16 THE COURT: No, but thank you.
17 I've made up my mind on the motion for leave
18 to file the motion for summary judgment. The Court is
19 granting that motion. I'm allowing both parties to file a
20 motion for summary judgment.
21 So the minute entry should show that the
22 defendant's motion for leave to file a motion for summary
23 judgment is granted and that the Court is specifically
24 allowing each side to file one motion for summary
25 judgment. I'm doing that, because I do think we're at a
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1 different stage of the case than when Judge Aragon issued


2 his ruling. We are also dealing with different legal
3 standards.
4 And I will note that I'm not prejudging any
5 motion for summary judgment. If there are material facts
6 that are in dispute, then that would mean that those
7 motions would be denied. And the Court assumes that no
8 party is going to file a frivolous motion. They're going
9 to file one for which they have a good-faith belief that
10 there is a good argument for that it may be granted.
11 The next motion to talk about --
12 MR. WARDEN: Judge, I couldn't quite hear
13 your full answer there. I would like the opportunity to
14 respond to what you said in defense of, I don't know how
15 to file a motion saying that there are no facts in
16 dispute.
17 I say there was a garden in -- had an
18 agreement for an ongoing garden project, such as the one
19 from my departure from the program. They say there isn't.
20 There never was. I set forth evidence showing that there
21 was an agreement and there is a dispute of facts.
22 And I wouldn't know how to file a motion for
23 summary judgment against them saying there are no facts in
24 dispute. It doesn't make any sense to me. I understand
25 these motions very, very clearly. I've been through them
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1 in federal court. I understand what they mean.


2 THE COURT: Mr. Warden, if you don't feel
3 like you have grounds to file a motion for summary
4 judgment, then you shouldn't.
5 In terms of how to respond to the
6 defendant's motion for summary judgment, it's hard to say,
7 first, because we haven't seen that motion for summary
8 judgment; second, that is not my role here to walk you
9 through how to respond to somebody else's motion other
10 than pointing you to the rules and the local rules.
11 That walk-through, how you do that, in terms
12 of the procedure --
13 MR. WARDEN: Judge, I know how to do it.
14 I'm just simply saying: Is the Court saying, at this
15 moment, they don't see any facts in dispute on the basis
16 of our mutual filings on this motion for leave?
17 THE COURT: No. In fact, I said the
18 opposite -- well, not the opposite. What I said is, I'm
19 not prejudging my mind. I'm not -- I haven't made a
20 decision on that. I haven't been asked to consider a
21 motion for summary judgment, so that issue isn't ripe. It
22 isn't brought before me. As soon as someone files a
23 motion for summary judgment, then I start to analyze the
24 file to figure out if there are any material fact disputes
25 and, if there are, what they are.
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1 So I would like to move now to our next


2 issue, which is the discovery disputes. I have read the
3 joint statement. I want to thank you both for working
4 together to get that to me.
5 I believe that it's Mr. Warden who is asking
6 for today's hearing. So, sir, why don't you start.
7 MR. WARDEN: Well, I don't know what to tell
8 you, other than the fact I need these witnesses. They
9 were people who participated in the project. They were
10 hard-working veterans.
11 They didn't work out there in the garden for
12 the pleasure of growing vegetables and having fun. They
13 worked out there in the hot sun and really put out,
14 because they had an agreement of self-sufficiency. They
15 agreed to an ongoing project and ongoing deployment and
16 agreeing to being able to sell vegetables and other
17 produce to the VA.
18 And they saw -- they saw a chance to start
19 basically a nationwide program for homeless veterans to
20 return to productivity by bootstrapping themselves up,
21 becoming self-sufficient, and supplying the government
22 with items at which they buy anyway from the private
23 sector.
24 THE COURT: Mr. Warden, excuse me.
25 MR. WARDEN: So it's very important to have
10

1 these witnesses appear. By asking why they --


2 THE COURT: Mr. Warden.
3 MR. WARDEN: Yes.
4 THE COURT: Excuse me for interpreting.
5 You have, as I understand, three claims; one
6 for promissory estoppel, one for conspiracy, and one for
7 intentional infliction of emotional distress. Is that
8 correct?
9 MR. WARDEN: Right, but they all flow out of
10 the promissory estoppel. Without a promise, the other two
11 are meaningless. And if there was not an understanding
12 of --
13 THE COURT: Mr. Warden -- Mr. Warden, and
14 I'm trying to get focused here on something that I would
15 like answered to help me understand what is going on.
16 The promise that you just referred to, how
17 does interviewing these witnesses help you prove the
18 promise that you say was there?
19 MR. WARDEN: Did Your Honor read the First
20 Amended and the Third Amended Complaint, which is the
21 operative complaint in the case now?
22 THE COURT: I have read through it.
23 MR. WARDEN: I made that request, if the
24 Court would review that document.
25 THE COURT: Mr. Warden, this is your time to
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1 answer my questions. Generally, you don't respond to the


2 Court's questions with your own questions.
3 I have read through the file. I have
4 prepared for today. Quite frankly, I don't see how
5 interviewing these witnesses relate to you proving that
6 promise. So I'm trying to give you an opportunity to
7 explain that to me. Maybe I've missed it.
8 MR. WARDEN: Okay. They (inaudible) the
9 promise, because they participated on the days of the
10 communications that we had together.
11 We're working for a larger issue here.
12 We're not working because we like to be out here in the
13 sun. We're working because we want an ongoing project and
14 jobs for ourselves. They all will testify to that, on why
15 they were able to put their time and energy into that.
16 Because that is what their expectations were, because that
17 is what my expectations were, and that is what I told
18 them.
19 And so we're basing the promise on the
20 performance of the parties, not whether they actually sat
21 in the same room, and Phyllis and I came to the agreement
22 that we had. That is the difference between a contract
23 and promissory estoppel. Again, that is another area of
24 law which I understand quite clearly.
25 You base the existence of a promise on the
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1 performance of the parties. How did the parties perform?


2 And these people were out there performing at my
3 direction, because they wanted an ongoing project and they
4 wanted employment and they wanted more opportunity to be
5 self-sufficient. They wanted all of these things.
6 Because that's what I told them. That's what we were all
7 mutually working for.
8 THE COURT: And are you saying that the
9 defendants made specific promises to these witnesses that
10 were akin to the promises they made to you? Are you
11 saying the defendants made promises to you and then you
12 passed those promises along to the witnesses?
13 MR. WARDEN: We all worked on the basis of
14 the promise that was made to me. These witnesses also --
15 I haven't had a chance to interview them. But they spoke
16 with Andrea McCammon. They spoken with Phyllis Russell.
17 They had interaction with them.
18 I don't know to what extent Phyllis and
19 Andrea confirmed the existence of the program or not. I
20 don't know they did. I haven't had a chance to interview
21 them.
22 THE COURT: And Mr. Pastore says that at
23 least, I believe -- and I'm going to ask him, but he can
24 clarify when it's his turn to talk. But I think that he
25 has spoken to at least the defendant's current residents
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1 that are the witnesses you want to speak to. And those
2 residents have told Mr. Pastore that they don't want to
3 participate. They don't want to be interviewed.
4 Are you not --
5 MR. WARDEN: I've explained that clearly in
6 my motion, Judge. These people are very intimidated.
7 THE COURT: So Mr. Warden -- Mr. Warden --
8 MR. WARDEN: This is a very intimating
9 organization. These people are afraid that they will be
10 denied benefits, as I was. They would be kicked out of
11 the program that they are in.
12 THE COURT: Mr. Warden, when you say things
13 like "I have explained that clearly, Judge," to me that
14 sounds like you're telling me that you think I am not the
15 brightest bulb. It sounds rude to me. I don't know if
16 that's what you're trying to do, but it's turning me off.
17 I'm asking these questions to make sure that
18 I can get clarity on what is going on.
19 MR. WARDEN: I have nothing I can add other
20 than what is in the documents I presented to the Court.
21 These people are easily intimidated. They're afraid of
22 the arbitrary and capricious actions of the people that
23 run the organization that they were a part of. They're
24 afraid of being homeless again.
25 These people -- none of these people now
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1 currently reside in the E En E. They're all out in the


2 community living in government-sponsored housing. And
3 many of these -- many of the -- much of the money that
4 comes to pay for this housing comes through programs that
5 are administrated by E En E. They're very, very much
6 afraid of retaliation.
7 THE COURT: Thank you, Mr. Warden.
8 Mr. Pastore, your response to all this?
9 MR. PASTORE: Thank you, Your Honor.
10 Our position is twofold, primarily -- well,
11 threefold. I'll start with the third one to discuss.
12 Well, E En E is willing to provide the
13 information, contact information, for the employees
14 because that is at least arguably relevant, provided
15 Mr. Warden enters into a confidentiality order which I
16 have sent to him. And he did not agree to it because it
17 didn't include the inclusion of the resident information.
18 So just to clarify that part. We're willing
19 to provide the employee information, as long as -- if
20 plaintiff doesn't try to object -- it is my understanding,
21 for this litigation, we'll provide --
22 THE COURT: Mr. Pastore. Mr. Pastore.
23 MR. PASTORE: Yes.
24 THE COURT: Remember, we have that court
25 reporter. We have a court reporter here, so we need to
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1 slow down a little bit, please.


2 MR. PASTORE: My apologies.
3 All right. So with respect to the
4 residents, it's our position that they don't have
5 information that is relevant to the claims here. They
6 are -- as Your Honor discussed, whether a promise was made
7 or what was the content of a promise between Mr. Warden
8 and Mrs. Russell, and then EEE's decision to have
9 plaintiffs leave the EEE program before he had been there
10 for 24 months. And I don't see what information residents
11 would have regarding that.
12 Ms. Russell and Ms. McCammon are named
13 defendants. Plaintiff could depose them or could have
14 deposed them and ask them questions about whether or not
15 they discussed promises or made promises with other
16 individuals. We haven't done that.
17 So for producing contact information for
18 residents that the residents expect we'll keep private, we
19 have a policy to keep private and have some obligations
20 under VA regulations to keep private.
21 And as the motions, the joint statement
22 indicated, the parties worked together on this, agreed on
23 a script. I didn't call up the individuals. E En E
24 personnel called the individuals and read the script. And
25 all of the individuals who we were able to contact said
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1 they did not want their contact information shared with a


2 third party or Mr. Warden, specifically.
3 THE COURT: When I look at the Rule 26.1
4 disclosures, it talks about disclosing information about
5 witnesses that you intend to call or just people who may
6 have information. And the rule specifically says you're
7 supposed to give the name and address and telephone number
8 of your witnesses, and the name and address of other
9 people that may have information.
10 So how come names and addresses are
11 confidential? If the rules specifically say you're
12 supposed to disclose that stuff as a matter of course, why
13 are your employees different? Why are these residents
14 different than the average person we list on the
15 disclosure statement?
16 MR. PASTORE: Well, the circumstances with
17 respect to the residents, they have -- we certainly didn't
18 identify them as witnesses. And I think just because
19 plaintiff asks or identifies 30 residents as potential
20 witnesses, we have some obligation to them under, like I
21 said, our own policies.
22 And these individuals who have -- complete
23 third parties have nothing to do with this case, nothing
24 to do with the conduct at issue here. Just providing
25 their personal contact information to Mr. Warden so that
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1 he can pre-contact them without issue, I think that is a


2 problem.
3 THE COURT: Why is that a problem? I mean,
4 if someone -- if I know someone's name and address and
5 telephone number, why is that, all of a sudden,
6 confidential? I mean, I understand you have your own
7 policies. But is there something that prevents me, for
8 example, from ordering you to do that? Is there a statute
9 out there? Is there a law out there? Is there something
10 that says someone's name and address are confidential?
11 MR. PASTORE: There are, and I don't have it
12 in front of me. The regulations covering the program that
13 E En E runs, I believe do require that they keep resident
14 information confidential. But there is, otherwise, no
15 other statute or rule other than 26(c) on protective
16 orders, which I think applies here.
17 It would be annoying and harassing to
18 provide all this information, have Mr. Warden contact
19 these folks. I mean it's not -- I think it is akin to a
20 situation where there is a dispute at -- like a personal
21 injury action happening at an apartment complex. And the
22 plaintiff asks for the contact information for all tenants
23 or residents at the apartment complex without identifying
24 what, if any, relevant information any of them have or any
25 of them specifically have.
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1 So I think the apartment complex, then --


2 that E En E does have some duty to protect this
3 information from disclosure from their residents with the
4 apartment complex. Otherwise, you wouldn't really be able
5 to, without their tenants' authorization, to provide this
6 contact information to a third party.
7 THE COURT: All right.
8 MR. WARDEN: May I be heard?
9 THE COURT: One second, Mr. Warden. I am
10 going to circle back to you.
11 Mr. Pastore, how many former employees are
12 we talking about?
13 MR. PASTORE: Between five and ten.
14 THE COURT: How many current employees?
15 MR. PASTORE: Sorry. In total, between five
16 and ten. I don't know the breakdown between current and
17 former.
18 THE COURT: How about residents, former and
19 current?
20 MR. PASTORE: I'm not sure on their current
21 status. The list before Mr. Warden represented that, by
22 now, they would all be former residents. That may very
23 well be true, but he requested, I believe, in excess of 30
24 former residents.
25 MR. WARDEN: All of whom were participants
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1 in the program.
2 THE COURT: Mr. Pastore, are you
3 representing that your client has reached out to all the
4 potential witnesses that we're talking about here?
5 MR. PASTORE: All the residents, yes.
6 MR. WARDEN: May I respond?
7 THE COURT: One second, Mr. Warden.
8 MR. WARDEN: I didn't know in lawsuits
9 whether you had to get the agreement of somebody to
10 testify before you could subpoena them and bring them in
11 to testify at the trial. I have a right to subpoena
12 witnesses and to bring them into trial, whether or not
13 they want to testify at all.
14 Of course, I run the risk of getting ambush
15 testimony if I use them. But like I said, none of these
16 people wanted to be involved in any kind of court process.
17 E En E is simply shielding this information,
18 like they did for a resident named Bill, who actually
19 assaulted me on E En E property. And I simply tried to
20 get his last name so I could get a restraining order.
21 Went down to the police department, went down to the
22 courts, and they said we can't give you one without a last
23 name. E En E refused to give me this guy's last name. E
24 En E obstructed my action of getting a disclaim notice.
25 That I give them the last name who was on my property when
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1 he came to my apartment.
2 THE COURT: Mr. Warden -- Mr. Warden --
3 MR. WARDEN: They simply want to hide this
4 information.
5 THE COURT: Mr. Warden, we're talking about
6 interviewing witnesses. This is the first time I've heard
7 about subpoenaing witnesses. Those are two different
8 issues.
9 If we get back to interviewing witnesses,
10 looking through this joint statement, the defendants are
11 saying that you agreed in writing to the terms, and the
12 parties agreed to a script that would be used when the
13 defendant contacted residents, asked them for their
14 consent to disclose their contact information.
15 Did you agree --
16 MR. WARDEN: Judge, I objected to it every
17 step of the way. I said, (inaudible) -- I can't remember
18 whether I agreed to anything or not. I objected in every
19 way. It was like having a shotgun to my head. I said,
20 Well, try ten. They said, We'll try ten and see what
21 happens. And they tried ten, and that's all they tried.
22 We didn't get a positive response.
23 I knew, from the beginning, that any attempt
24 preventing me to contact these people before I contacted
25 them would lead to intimidation, and these people refusal
21

1 to participate in any kind of court inquiry.


2 THE COURT: Anything else, Mr. Warden?
3 MR. WARDEN: I don't know what else to add.
4 If you had questions for me, I would certainly be happy to
5 answer it.
6 I'll say this: Mr. Pastore will come into
7 trial -- should there be a trial, he'll come into trial
8 and say: Well, Mr. Warden never worked in the performance
9 of this so-called ongoing agreement. He never did
10 anything to create a program or to get people involved and
11 to try to get employment or get jobs at the VA. He never
12 did anything.
13 Now, in order to establish that, that I did
14 something and people were involved in the program, I need
15 to have witnesses. I need to have witnesses of people who
16 participated in the program. It's very clear.
17 THE COURT: Thank you.
18 Mr. Pastore, your thoughts on anything else?
19 MR. PASTORE: With respect to that last
20 argument, I don't intend to go into the court and do that.
21 Mr. Warden can rely on what is his own deposition
22 testimony if I say something like that, or he could say
23 that that is not what he testified to at all.
24 It's not -- the issue here isn't whether
25 plaintiff worked in the garden. There is no dispute about
22

1 that. The issue is: Was there a promise made? What was
2 the content of that promise? Whether E En E had a basis
3 to have plaintiff leave the program before 24 months.
4 And throughout this hearing, I haven't heard
5 Mr. Warden identify any -- back to that, what a resident
6 may have that is relevant at all to either of those
7 claims.
8 So I think asking for all this information
9 is really nothing more than a fishing expedition.
10 MR. WARDEN: It's not a fishing expedition
11 at all.
12 THE COURT: Here is my thinking here,
13 Mr. Pastore, is that Mr. Warden has a right to prove his
14 case. It seems reasonable to allow him to talk to people
15 that may have been told similar things that he was told.
16 That may have been relying on statements that may be able
17 to support his allegations, either directly or by
18 inference.
19 I mean, as I understand Mr. Warden, he wants
20 to talk to a former resident to say something along the
21 lines of: I spoke to the defendants. And, yeah, you
22 know, we were doing this because they were going to pay --
23 they told me they were going to X, Y, Z. That is
24 consistent with what Mr. Warden is saying. And it seems
25 to me that he should be able to at least try to talk to
23

1 these people to see if they have that sort of information.


2 And what am I missing there? Why shouldn't
3 he be able to talk to those residents to see if they
4 overheard something or if they have similar conversations
5 or anything along those lines?
6 MR. PASTORE: Mr. Warden testified, during
7 the deposition, that no one witnessed the conversation he
8 had with Ms. Russell where this alleged conversation
9 occurred.
10 And, second, before, Mr. Warden stated that
11 in this hearing, while this issue's been going on seven or
12 eight months, he never mentioned anything or suggested
13 that they would have relevant information as to the fact
14 that someone at E En E may have said something or made a
15 similar promise to them and Mr. Warden. Like if that was
16 a possibility in his pleadings or in discovery or
17 anywhere, to me over the phone, during our multiple meet
18 and confers, that may change our position. But this is
19 the first time I've heard that or that information may
20 even exist.
21 Like I said, there are named defendants, the
22 individuals, Ms. Russell and Ms. McCammon, who he claims
23 now, I guess, would have made these statements. He could
24 have deposed these folks and seen if those things were
25 done. And if information was disclosed during those
24

1 depositions, it would have, I believe, given us a factual


2 basis that actually residents may have some relevant
3 information about a promise that was made to him in a
4 closed-door room or similar promises made to other
5 employees, our position would be different. But this case
6 has been going on three years, and this is the first it's
7 come up.
8 MR. WARDEN: It's been going on for three
9 years because Mr. Pastore has been filing motions and
10 taking us into federal court and wasting a lot of time.
11 It's not my fault that Mr. Pastore had a purpose of
12 expedition over in federal court with nonexistence
13 argument and the judge agreed with me and sent the case
14 right back.
15 THE COURT: Mr. Warden --
16 MR. WARDEN: Mr. Pastore was told this from
17 the beginning.
18 THE COURT: Mr. Warden, excuse me. I'm
19 still talking to Mr. Pastore.
20 Mr. Pastore, if I was going to order your
21 client to produce the contact information of employees and
22 former residents, what else would you want to be included
23 in the order? Protections? What are your concerns if I
24 make that order?
25 MR. PASTORE: We would ask that -- we would
25

1 request that Mr. Warden agree that he would -- he would


2 not disclose the information to any other third parties.
3 He could only use the information, contact information to
4 contact employees, contact these folks, whoever it is,
5 with respect to litigation, not for any other reason.
6 That he would honor their request whether to speak to him
7 or not. He wouldn't harass them.
8 THE COURT: For the employees, both current
9 and former, would you -- you could make them available at
10 their place of employment to Mr. Warden, couldn't you?
11 MR. PASTORE: Correct.
12 THE COURT: Are you talking about some sort
13 of protective order in place?
14 MR. PASTORE: That's right, Your Honor.
15 Order of protection within an order requiring my client to
16 produce the information.
17 THE COURT: Mr. Warden, would you agree to
18 that protective order along those lines?
19 MR. WARDEN: I don't have any problem with
20 that, Judge, because it's totally contrary to my purpose.
21 I have no reason to contact these people other than to
22 ascertain information as it relates to this case.
23 However, I will say this. I have been in
24 contact with the VA and with other people. And there may
25 be an investigation into E En E regarding misuse of funds
26

1 and so forth. And if I'm asked by investigators for the


2 VA or the Inspector General, I'm going to have to tell
3 them, Answer the questions, as they answer these
4 questions.
5 And I can't refuse to give -- reveal the
6 names of people who may have additional information. And
7 so it puts me in kind of a box there. I've got to follow
8 the law. I've got to do what these people ask me to do.
9 If the government -- agent of the government employee
10 asked me, Hey, we need to know the names of these people,
11 then I'm going to have to give them the names.
12 THE COURT: Mr. Warden --
13 MR. WARDEN: I have no reason to contact
14 these people other --
15 THE COURT: Mr. Warden -- -
16 MR. WARDEN: -- than the obligation of my
17 case.
18 THE COURT: Mr. Warden, I'm not your lawyer.
19 I'm not here to advise you. I will tell you, though, if I
20 issue a court order and that order includes ordering you
21 not to disclose information that has been deemed
22 confidential, you need to follow that court order. Before
23 you violate it, I would seek permission from the Court to
24 get permission to tell -- to go against that order.
25 MR. WARDEN: I agree. I agree. You write
27

1 that order, I will obey that order. And I will -- if I


2 seek a modification, it would be because of federal and
3 investigating official asks for additional information
4 which is covered, I will seek permission from your court
5 and abide by your rule.
6 THE COURT: That would be my expectation.
7 Here is my ruling. If the minute entry
8 could reflect that plaintiff is seeking to have the
9 defendant disclose the contact information of various
10 former and current employees and former and, maybe,
11 present residents, the Court is ordering the defendant to
12 disclose that contact information under a confidentiality
13 order.
14 The Court is ordering the defendant to take
15 the lead in drafting that confidentiality order. If the
16 parties have stipulated to it, then file the stipulation
17 and the Court will sign it. And once I have signed that
18 order, then the defendant will need to disclose that
19 contact information.
20 If there is a disagreement over the proposed
21 confidential order, please follow the same procedures that
22 you followed today so we can have a telephonic conference,
23 and I could resolve that disagreement. I would want to
24 see a copy of the proposed order so I can have it in front
25 of me.
28

1 Mr. Warden, how much time do you think


2 you'll need with each of these witnesses, assuming they
3 agree to talk to you?
4 MR. WARDEN: Assuming I have the name in
5 front of me, not terribly long. I will say this, I do
6 intend -- because discovery is still open, I do intend to
7 depose, perhaps, McCammon and, perhaps, Russell as well.
8 I haven't had a chance yet to put my case
9 together because we've been going over this for six
10 months, wanting the witness information. And what I
11 resent is being put in this situation where it's really
12 obstructing the case and slowing the case down. And now
13 they're, all of sudden, in a hurry to get the case to its
14 end.
15 I need a chance to talk to these people, to
16 find out and follow up with information they had, see if
17 they disclose additional information that requires
18 investigation.
19 THE COURT: Mr. Warden --
20 MR. WARDEN: We're at the beginning of the
21 case.
22 THE COURT: Mr. Warden, I'm not ruling on
23 any potential discovery issues that might be coming up.
24 All I'm ruling on is what is in front of me today.
25 I do have another hearing, so I want to wrap
29

1 this up.
2 If the minute entry could reflect that the
3 deadline for the defendant to file the stipulated
4 protective order, or if it can't be stipulated, then at
5 least an update on that is -- I'm just pulling up my
6 calendar real quick.
7 Mr. Pastore, is two weeks enough time?
8 MR. PASTORE: Yes, Your Honor.
9 THE COURT: Is June 13? And if the minute
10 entry could reflect that the Court is in no way ordering
11 any of these witnesses to participate in these interviews.
12 It is completely voluntary on their behalf. This is not a
13 Court order or a subpoena. This is simply disclosing
14 contact information so that witnesses can speak to people
15 if they want to. And I'm using the term "witnesses"
16 broadly. I'm not suggesting that they actually are
17 witnesses or do have any information that would make them
18 technically a witness.
19 Mr. Pastore, any questions?
20 MR. PASTORE: Your Honor, I do have one
21 other issue that just came up. I understand you have
22 another hearing, but this is somewhat urgent.
23 Yesterday, when the parties were
24 communicating about who would be contacting the Court,
25 Mr. Warden sent me a copy of a background search that he
30

1 conducted on myself, which includes my personal home


2 contact information, my wife's contact information, my
3 mother's, my grandmother's, my family members, my
4 mother-in-law's contact information and history.
5 And I just wanted to ask Mr. Warden, by
6 e-mail, why he ran that report and why he was sending it
7 to me. I've not gotten a response. I understand he's
8 allowed to run a background check information. But then
9 sending it to me, I was confused by that.
10 I can do it in writing, but I request that
11 the Court order plaintiff not to contact any of the
12 individuals that he found in my -- when running a
13 background check on me.
14 I understand that he's pro se. If
15 another -- if an attorney did that and then just sent it
16 to me without explanation, indicating that he knows where
17 I live and where my wife and family members live, I don't
18 think that would be appropriate. I'm not sure why he sent
19 it to me. So I just wanted to let you know that he's done
20 it.
21 THE COURT: Mr. Warden?
22 MR. WARDEN: Judge, it had nothing to do
23 with this case. I've done this with a number of people
24 that I'm associated with. It's basically a public
25 commentary, political commentary on the fact that all of
31

1 this information is available to anybody on the internet.


2 This is a $20-a-month company that will
3 run -- that create these reports and create them within 15
4 seconds and find all the different aggregates. There's
5 nothing hidden. It's all public.
6 THE COURT: Mr. Warden? Mr. Warden --
7 MR. WARDEN: It's basically a commentary.
8 They're under the big eye of big brother.
9 THE COURT: Mr. Warden, did you run a
10 background check on Mr. Pastore and send it to him?
11 MR. WARDEN: I ran his name, as I do with a
12 lot of people, to get information searches. It's very
13 commonly done.
14 THE COURT: Did you send it to him?
15 MR. WARDEN: I do it for anybody. It's not
16 privileged information.
17 THE COURT: Mr. Warden, did you send it to
18 him?
19 MR. WARDEN: Yes, I did.
20 THE COURT: Why?
21 MR. WARDEN: It was -- like I said, it was
22 political commentary. We're all under the eye of big
23 brother and we're all under the eye of each other. That's
24 all. Nothing special to Mr. Pastore. I did it to my
25 other attorney that I've been associated with as well.
32

1 THE COURT: How is this political


2 commentary?
3 MR. WARDEN: It's commentary to the day we
4 live in today, with Facebook and everything else, none of
5 us are private people anymore. We're all subject to
6 public scrutiny from our neighbors, from people that we
7 know. It simply -- it had nothing to do with this
8 specific case. It is what it is. There is nothing -- no
9 implications other than be (inaudible) in this whatsoever.
10 THE COURT: All right. Thank you.
11 Mr. Pastore, anything else?
12 MR. PASTORE: Just to clarify, he sent it to
13 me in a blank e-mail. There was no commentary. It just
14 said, "You've been verified." That was the name of the
15 background check. (Inaudible).
16 If Your Honor -- I mean, I do want a
17 protective order on this, that he not contact -- you know,
18 not go to my house, not contact anyone in my family that
19 he found on the search record. I can write that up or
20 just verbally, even here, I think that is sufficient for
21 me. But it's a little unsettling.
22 THE COURT: The Court agrees.
23 If the minute entry could reflect that
24 Mr. Pastore represents that the plaintiff ran a background
25 check on Mr. Pastore personally that included information
33

1 about Mr. Pastore's family, contact information, and that


2 it was sent to Mr. Pastore without any explanation. That
3 Mr. Warden agrees that he did this. That Mr. Warden
4 claims it is a political commentary exercise. That the
5 Court disagrees with Mr. Warden. That the Court views it
6 as intimidating and harassing.
7 The Court is ordering Mr. Warden not to do
8 anything similar. The Court is warning Mr. Warden that if
9 he does something along those lines again, the Court will
10 seriously consider holding him in contempt of court. That
11 Mr. Pastore is granted leave to file any sort of motion
12 for protective order that he deems appropriate. And after
13 giving time for Mr. Warden to respond to that, the Court
14 will rule on that motion.
15 Along those lines, the Court notes that
16 Mr. Warden sent the Court an e-mail that looked like an
17 e-mail that was sent to a number of different people. The
18 Court, in particular Judge Griffin, does not appreciate
19 being included on any e-mails from Mr. Warden. There is
20 no reason for Mr. Warden to be sending any e-mails to me
21 at my work e-mail address or any other address.
22 The Court is specifically ordering
23 Mr. Warden to stop sending this judge, Judge Griffin, any
24 e-mails either at a work address e-mail or any other
25 address. To the extent Mr. Warden wants to coordinate
34

1 with this Court, he should do so through the normal court


2 processes, which means by filing something. Or if it's a
3 scheduling issue, he can contact the court staff.
4 With that, we're at recess.
5

6 (Court adjourned.)
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1 CERTIFICATE
2

3 I, Nichole Forrest, CSR, RMR, CRR, CR #50862


4 certify that as an Official Court Reporter in the Superior
5 Court of Pima County, Arizona, I was at the telephonic
6 hearing of the foregoing entitled case; that while there I
7 took down in stenotype all the oral testimony adduced
8 and/or proceedings; I have transcribed such stenotype into
9 typewriting; and that the foregoing typewritten matter
10 contains a full, true and correct transcript of my
11 stenotype notes so taken by me as aforesaid, to the best
12 of my skill and ability.
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16 /s/NICHOLE FORREST
_________________________________________
17 Nichole Forrest, RDR, CRR, CRC, CR #50862
Official Court Reporter
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