Sheriff Joe Arpaio's Men Attempt to Seize E-Mail at Issue in Melendres Case -- Feds Have Subpoenaed Info
A Maricopa County sheriff's commander attempted to seize nearly two years' worth of Maricopa County Sheriff's Office e-mails from the county IT department Friday -- saying the e-mails were archived without "the knowledge, consent, or appropriate clearances" from the Sheriff's Office.
But county officials refused to turn over the archived e-mails. saying the electronic records subject to disclosure under a racial-profiling lawsuit. Furthermore, they told sheriff's officials in an e-mail Friday, federal investigators recently demanded the e-mails via subpoena.
The dispute turned into a tense standoff Friday afternoon, with a sheriff's commander arriving at the county's IT department. He was rebuffed by county officials. Then, that afternoon, a judge ultimately agreed with the county that the Sheriff's Office may not have the highly sensitive electronic trail. The judge ordered county staff to "protect, secure, and not destroy" the Sheriff's Office records.
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That's a major setback to the Sheriff's Office. It means that two years' worth of employee e-mails may end up as evidence in the Melendres racial-profiling case, even after the Sheriff's Office maintained they were "accidentally" destroyed.
It also means that federal investigators may be getting the motherlode: a full electronic record of exactly what sheriff's investigators have been up to in the last two years. That time period covers the MCSO's feud with county staff and such politically charged investigations as the case against Supervisor Don Stapley.
It's been widely reported that a federal grand jury is examining allegations that Sheriff Joe Arpaio abused his authority to target political opponents. An e-mail written Friday by the county's legal counsel, Wade Swanson, is the first acknowledgment that investigators on that case are seeking the email archive.
County officials say they only became aware of the archive last Monday.
"We have no idea what's in these e-mails," County spokeswoman Cari Gerchick told New Times on Sunday. "We have not reviewed them."
But county officials acted quickly when they learned of the sheriff's demands that the cache be turned over to the MCSO, Gerchick says.
"On Friday afternoon, I was concerned that if the Sheriff's Office took possession of the data, they would destroy it -- even though they'd been informed that it had been subpoenaed by the grand jury," she explains.
A little background:
Two years ago, the sheriff's ally, County Treasurer Charles "Hos" Hoskins, filed a lawsuit against the Board of Supervisors. As part of that suit, Hoskins' lawyers at Ogletree Deakins asked the county to put a "litigation hold" on e-mails that might be relevant to the case. Litigation holds are commonly used to keep a defendant in a lawsuit from destroying documents -- and so even though Maricopa County typically destroys all e-mails after 28 days, thanks to the hold, county e-mails were instead retained in giant files.
Because of a quirk of technology, however, county officials say it wasn't just e-mails from county administration that were retained -- it was e-mails from everyone working for the county. They didn't have the technical capability to sort out who was and wasn't involved in the Hoskins' case, so they put a hold on everybody.
Fast-forward to today. Now, the Sheriff's Office is being sued for racial profiling in a case called Melendres v. Arpaio. And though Melendres' attorney, David Bodney, had asked for a litigation hold for similar documents in July 2008, sheriff's officials claimed that they'd screwed up. Yes, Bodney had asked for e-mails and other documents to be saved -- but they'd forgotten to forward the request to the proper people at the MCSO. Oops!
But apparently, county officials tell us, the sheriff's lawyer made that averral without checking with the county IT department first. Had they asked, they would have learned that all sheriff's office emails had been backed up two years, thanks to the suit from Treasurer Hoskins. Oops!
The retention of all those documents is surely great news for Bodney and the other litigants in the Melendres case. But their late discovery is embarassing to the Sheriff's Office.
Indeed, once the county informed him about the two years' worth of backups, the sheriff's lawyer on the case, Tim Casey, filed an affidavit hemming and hawing and trying to explain how he could have possibly failed to ask county IT people about whether backups just might possibly exist.
His solution: Blame the county, which he believes should have come forward to volunteer the information in question. (Never mind that the county had forgotten about the Hoskins litigation hold, Gerchick says, until the Sheriff's Office finally got around to asking them about the issue last Monday.)
And the situation may become even more embarrassing once lawyers on the Melendres case -- and presumably, the county, which is an all-out war with the sheriff these days -- find out exactly what's in the emails.
Which brings us to Friday.
Just one day after Casey filed his red-faced affidavit in federal court, Sheriff's Commander Bob Rampy sent an angry e-mail to the county's IT staff. He announced that the e-mail retention -- even though originally ordered by Ogletree Deakins, a firm that's done lots of work for the MCSO -- could "pose immediate/grave implications to a myriad of ongoing public safety efforts."
"Therefore, I am requesting that you turn over any and all electronic and paper documentation concerning archived e-mail that you have in your possession," Rampy wrote. "I will be over at your facility at 2 p.m. today to take possession of MCSO property."
The e-mail was sent at 12:55 p.m. -- just one hour and five minutes before Rampy planned to arrive.
Swanson, the county's legal counsel, was having none of it. As he noted in a rapid reply to Rampy, the e-mails should have been subject to a litigation hold from the Melendres suit -- and, at any rate, the federal goverment has already subpoenaed them.
"These e-mails are no longer in the state," Swanson added, "but with a third-party vendor."
Despite Swanson's e-mail, Rampy did show up at the IT department Friday afternoon. But we're pleased to report that county officials were ready for him; the county's spokeswoman, Gerchick, just happened to be on site with a crew from the local CBS affiliate, KPHO. (You can see their report on the incident at http://www.kpho.com/ -- scroll about halfway down the station's homepage to the top stories' box, then click on "MCSO Email Showdown Resumes.")
Rampy tried to insist that the e-mails were "MCSO property." Gerchick resisted, noting the hold in the Melendres case. Rampy, red-faced, tried to order the TV cameras off.
Rampy's attempt, at any rate, was too little, too late. Based on what Swanson wrote in his e-mails about the cache now being out of state, it's fair to surmise that the county saw the sheriff coming and spirited the documents to a safe place. Later that day, the judge who's overseeing the long, complicated feud over the county computer system, Pima County Superior Court Judge Ted Borec, issued an order that backs up the county's decision to keep the e-mails from the sheriff's clutches.
The order tells county staff to "secure" the archived data, which ostensibly means not to give it to anybody from the Sheriff's Office even if they bring out their guns. It orders the sheriff not to take any unilateral action to grab the archive. And it sets a hearing for Wednesday to discuss all this further.
Meantime, Sheriff Joe Arpaio can sweat and stew, but it doesn't appear that there's very much he can do to get the e-mails in question. Looks like, at minimum, the feds might get to see them before he does.