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COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 Stanley Young (Pro Hac Vice) syoung@cov.com Andrew C. Byrnes (Pro Hac Vice) abyrnes@cov.com Attorneys for Plaintiffs (Additional attorneys for Plaintiffs listed on next page) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Manuel de Jesus Ortega Melendres, et al., Plaintiffs, vs. Joseph M. Arpaio, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. CV 07-2513-PHX-GMS

PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF SCOTT JEFFERYS (The Honorable Judge G. Murray Snow)

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Additional Attorneys for Plaintiffs: Tammy Albarran (Pro Hac Vice) talbarran@cov.com Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92107 Telephone: (858) 678-1800 Facsimile: (858) 678-1600 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Telephone: (203) 432-3928 Facsimile: (203) 432-1426

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Plaintiffs, by and through their counsel, hereby move and respectfully request that this Court preclude Defendants from offering Scott Jefferys as a witness at trial. MEMORANDUM IN SUPPORT OF MOTION IN LIMINE I. BACKGROUND

On January 21, 2011, nearly one year after the close of fact discovery in this case, Defendants for the first time disclosed the name of the Maricopa County Sheriff’s Office’s Computer Aided Dispatch (“CAD”) coordinator to Plaintiffs. Declaration of Lesli Gallagher (“Gallagher Decl.”) at 2. Ex. I to

Defendants cast this late

disclosure of Mr. Jefferys as an “expert disclosure,” explaining that they intended to call him as a witness “for foundational or other reasons” to address “(a) how MCSO stores information: (b) how Mr. Jefferys compiled and/or prepared the CAD data for analysis by [Defendants’ statistical expert] Dr. Camarota; and (c) how Mr. Jefferys analyzed [Plaintiffs’ statistical expert] Dr. Taylor’s supporting information from the data supplied by Plaintiffs’ counsel.” Id. II. ARGUMENT

Mr. Jefferys may not serve as a witness to testify to factual matters because he was not properly disclosed as a fact witness in any of MCSO’s Rule 26(a) disclosure statements or during discovery. The closest that the MCSO ever came to disclosing the existence of an individual that fits Mr. Jefferys’ description was in a supplemental disclosure statement Defendants made in October 2009 that listed as a possible witness: “MCSO Representative to Lay the Foundation for CAD Reports (will supplement with specific name(s) upon receipt).” Ex. E to Gallagher Decl. at 1. Defendants never provided any further detail about this individual after making this disclosure and prior to the close of fact discovery, depriving Plaintiffs of (1) the individual’s name or position at the MCSO, or (2) any notice that the individual might be relied upon Defendants for any purpose other than to lay foundation for CAD reports. As such, Plaintiffs were unable to notice the deposition of Mr. Jefferys during the fact discovery period. Indeed, they did not even know that they should. -1-

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It is well established that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). The burden of proving that either exception should apply rests with the party who committed the discovery failure. Yeti by Molly, 259 F.3d at 1107. After Plaintiffs received Mr. Jefferys’ name in Defendants’ “expert disclosure,” they contacted Defendants on February 4, 2011 to inform Defendants of their position. Ex. J to Gallagher Decl. While Defendants disagreed about whether Mr. Jefferys was properly disclosed, they articulated no justification for the late disclosure, let alone any substantial one. Further, Defendants’ failure to disclose Mr. Jefferys as a fact witness was not harmless. Had Plaintiffs had an opportunity to depose Mr. Jefferys during fact discovery, Plaintiffs’ statistical expert, Dr. Ralph Taylor, very well may have found such information useful in conducting his analysis of MCSO’s CAD data. But, due to the fault of Defendants, Dr. Taylor could not take Mr. Jefferys’ testimony into account and relied instead on MCSO officers’ testimony about information stored in the CAD database.1 Preclusion of Mr. Jefferys as a fact witness is also appropriate because Mr. Jefferys will not offer testimony relevant to any issue in dispute by the parties. Plaintiffs do not object to the authenticity of any CAD records, so the only purpose for which Defendants arguably disclosed Mr. Jefferys (though not by name)—as a foundational witness—will not be needed at trial. Nor may Defendants be permitted to “cure” their failure to disclose Mr. Jefferys as a fact witness by having him masquerade as an expert witness. Defendants’ “expert Separate from any of Defendants’ disclosures, towards the beginning of this case, Plaintiffs requested to meet with a knowledgeable MCSO “IT” person to discuss the CAD and the means by which it might be produced in a searchable format. Ex. K to Gallagher Decl. Defendants eventually provided the CAD database in a searchable format, but failed to ever make any IT person available for a meeting. -21

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disclosure” with respect to Mr. Jefferys was inadequate. Rule 26 provides that even expert witnesses who do not provide a written report (Defendants provided none for Mr. Jefferys) must provide a statement of (1) the subject matter(s) of the witness’s expected testimony, and (2) “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C) (emphasis added); see also, e.g., Stamas v. County of Madera, 1:09-CV-00753 LJO, 2011 WL 826330, at *3 (E.D. Cal. Mar. 3, 2011). Defendants’ “expert disclosure” failed to provide anything approaching a

summary of Mr. Jefferys’ expected opinions or the facts supporting those opinions. See Ex. I to Gallagher Decl. at 2. Plaintiffs informed Defendants that Mr. Jefferys’ was not properly disclosed as an expert. Ex. J to Gallagher Decl. Rather than attempting to remedy the deficient disclosure, Defendants only insisted that the disclosure was proper. Id.2 Preclusion of Mr. Jefferys’ as an “expert witness” is therefore appropriate. Yeti by Molly, 259 F.3d at 1106-07.3 III. CONCLUSION

For the reasons set forth above, Plaintiffs thus respectfully request that this Court order as follows: Defendants are precluded from offering Scott Jefferys as a witness at trial.

At that point, the harm to Plaintiffs from Defendants’ late and improper disclosure had already been done. Accordingly, Plaintiffs did not seek to depose Mr. Jefferys at that time as an “expert witness”. Preclusion of Mr. Jefferys’ testimony is appropriate in this case as a sanction for Defendants’ late and improper disclosure. In the event that this Court declines to preclude his testimony, however, Plaintiffs request an opportunity to depose Mr. Jefferys prior to trial and an opportunity for Plaintiffs’ expert, Dr. Taylor, to supplement his expert opinion and analysis to take into account any information provided by Mr. Jefferys. In that case, Plaintiffs would reserve the right to challenge the propriety of how Mr. Jefferys “compiled and/or prepared the CAD data for analysis by Dr. Camarota” and the methods by which he “analyzed Dr. Taylor’s supporting information”. Ex. I to Gallagher Decl. at 2. -33

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4By /s/ Lesli Gallagher Stanley Young (Pro Hac Vice) Andrew C. Byrnes (Pro Hac Vice) COVINGTON & BURLING LLP 333 Twin Dolphin Drive Suite 700 Redwood Shores, CA 94065-1418 Tammy Albarran (Pro Hac Vice) talbarran@cov.com Covington & Burling LLP 1 Front Street San Francisco, CA 94111-5356 Lesli Gallagher (Pro Hac Vice) lgallagher@cov.com Covington & Burling LLP 9191 Towne Centre Drive, 6th Floor San Diego CA 92122 Dan Pochoda dpochoda@acluaz.org James Lyall jlyall@acluaz.org ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Cecillia Wang cwang@aclu.org ACLU Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Nancy Ramirez nramirez@maldef.org Mexican American Legal Defense and Educational Fund 634 South Spring Street, 11th Floor Los Angeles, California 90014 Anne Lai annie.lai@yale.edu 15 Lyon St. Fl. 2 New Haven, CT 06511 Attorneys for Plaintiffs RESPECTFULLY SUBMITTED this 2nd day of March, 2012.

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of March, I electronically transmitted the attached document to the Clerk’s office using the CM/ECF System for filing and caused the attached document to be e-mailed to: Thomas P. Liddy tliddy@mail.maricopa.gov Maria R. Brandon brandonm@mail.maricopa.gov Timothy J. Casey timcasey@azbarristers.com Attorneys for Defendant Sheriff Joseph Arpaio and the Maricopa County Sherriff’s Office s/Rohna R. Houston Paralegal

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