Oral arguments took place February 4 regarding a sanctions motion from the plaintiffs in the big Melendres vs. Arpaio racial profiling lawsuit now underway. I had to be out of town on an assignment, and so could not attend the verbal donnybrook, but I did obtain a transcript of the proceedings, which occurred before District Court Judge G. Murray Snow.
Snow has yet to rule on a motion for sanctions from the plaintiffs regarding the massive destruction of evidence that lawyers uncovered as they deposed sheriff's deputies.
Despite repeated requests for all documents regarding Joe Arpaio's anti-immigration sweeps, the MCSO kept shredding stat sheets used by individual deputies and posse members to keep records of the stops they made. (I reported on this in a November blog item.) Lawyers for the plaintiffs were also after all internal e-mails regarding the sweeps and the planning of same.
Though no e-mails from such higher-ups as Arpaio and Chief Deputy David Hendershott were forthcoming, attorneys from the firm Steptoe and Johnson uncovered a secret AOL account for Hendershott from which he'd done county business.
Also, during Arpaio's deposition in December, the sheriff admitted on camera that he had his own private immigration file, which he had not turned over as part of the discovery process. Indeed, Arpaio said under oath that no one had advised him that he needed to preserve such documents. The sheriff also claimed not to use e-mail or texting. The file, you see, was a physical one.
Peter Kozinets, a Steptoe and Johnson lawyer, made the point regarding Arpaio's secret file to Snow:
"...The named defendant, Sheriff Arpaio himself, was never asked to preserve or produce his own files relating to these issues," said Kozinets during the hearing, "so that more than two years after the case was filed, no one had had a discussion with the sheriff asking for these basic files.
"So as a result, we took his deposition in December last year. Within the last week or so, on January 21st, we finally got the sheriff's immigration file: 820 pages of press releases that he apparently edited; of correspondence; of other documents relating to all of these issues. We also got 200 pages or more of Internal Affairs investigations into claims of racial profiling. These were documents that we asked for in July of 2008 and again in February of 2009 in our Rule 34 requests."
Arpaio's legal beagle Timothy Casey addressed concerns about the Arpaio docs and the secret Hendershott account:
"The Arpaio documents...should have been produced a long time ago. I don't have an explanation, but we have them, we produced them. They were subject both to the public information request, and they were subject to a fair reading of the February '09 RFP submitted by plaintiffs.
"The Hendershott e-mail, I have, if my memory's correct, researched that; checked with Chief Hendershott; provided a letter, it's not sworn, a letter to plaintiffs' counsel advising that according to Chief Hendershott, he has searched for his AOL account. It is his home account. It's a family account. On occasion he has used it for business, but he's not used it on the Melendres case, and he certainly has nothing related to saturation patrols or any of the issues that I identified for him that are pertinent in this case.
"The deposition of Hendershott currently has been postponed but is set to February 12, I believe. I've invited plaintiffs they can get all the testimony they wish under oath on that issue from Chief Hendershott, but I am told there are no personal account e-mails that have anything to do with this case remotely."
As far as other e-mails requested by the plaintiffs, Casey stated that MCSO only has access to e-mails going back to October 31, 2009, and that anything deleted before that time "is unrecoverable."
Not to worry, though, Casey advised the court, as the MCSO would have provided all relevant e-mails to him, and everything else was just "chitchat."
However, under further questioning by Snow, Casey admitted that he could not guarantee that all relevant e-mails prior to October 31, 2009 had been preserved. Casey advised the judge that he had hired a third-party forensics examiner to comb through the MCSO's past computer files for relevant e-mails.
Snow asked Casey to produce an affidavit, which would describe under oath his efforts to recover these purged docs. Then the judge asked Kozinets if he planned to challenge Casey's credibility after the affidavit was produced.
"I don't think so, Your Honor," replied Kozinets. "I mean, obviously it would depend on the -- the affidavit itself, but what we would ultimately be challenging is not [Casey's] credibility, but his clients' credibility."
Heh. Score one for the plaintiffs.
Regarding the stat sheets, Casey unabashedly ate humble pie during the hearing. He admitted that the stat sheets were "relevant," and he agreed that the legal requirement for sanctions had been met. And he even admitted that if the penny-loafer was on the other foot, he'd have filed a motion for sanctions as well.
The sanctions themselves could run from lawyers fees and do-overs of depositions, to an "adverse inference" the judge or a potential jury could take regarding the destroyed info. Essentially, that might mean a sort of assumption made that the shredded docs would have been harmful to the MCSO's case.
Casey squealed like stuck pig over the possibility of some lawyer fees being awarded, and pointed to lawyers present from Steptoe as well as from the ACLU, which is aiding in the plaintiffs' representation.
"And personally I am concerned," sniffed Casey, "that we have legions of lawyers on the team over here that we are going to have something that is already going to be price prohibitive, and already the county is in financial difficulty. It's not appropriate."
That's particularly rich coming from an attorney who makes bank on the backs of county taxpayers by representing Arpaio. According to Peter Crowley, head of Maricopa County Risk Management, Casey's hourly rate is $190 per hour. Crowley says that, so far, Risk Management has paid Casey and his firm a whopping $424,649.07 in legal fees and costs in the Melendres case.
Shucks, if Casey's really concerned by the financial situation of the county, he should give back all of the money he's already been paid, and do the rest of the case pro bono.
That sound you hear is Casey's brain imploding at the mere suggestion...
Casey, I should point out, is attorney for Arpaio and the sheriff's office. The county itself is no longer a defendant in the case.
The next status conference is set for March 19. Snow said he would address the issues of the stat sheets and the e-mails at that time, but he seemed to leave open the possibility that he could issue a ruling on sanctions before then as well.
Stephen is a staff writer and columnist at Phoenix New Times.