District Court Judge G. Murray Snow has ordered sanctions in the big Melendres v. Arpaio racial profiling lawsuit still ongoing in federal court. The sanction addresses in a very measured way the systematic destruction of documents by members of the Maricopa County Sheriff's Office, even after all documents pertaining to the planning and execution of Sheriff Arpaio's notorious anti-immigrant sweeps were requested again and again by plaintiffs' lawyers beginning July 21, 2008.
Despite repeated follow-ups from attorneys from Steptoe & Johnson, lead counsel for the plaintiffs, thousands of so-called "stat sheets" detailing each deputy or posse member's stops during the course of a sweep were shredded or otherwise destroyed. But it was only during the deposition of Sergeant Manny Madrid on October 27, 2009, that Madrid, a supervisor in the MCSO's infamous Human Smuggling Unit, admitted under oath that he had been shredding the documents and that he had never been advised to retain such documents.
Other HSU higher-ups copped to the document destruction, as well as to not preserving all e-mails pertaining to the dragnets, as they should have been doing. Deputy Chief Jack MacIntyre attempted to take the fall in an affidavit in which he stated that he simply "forgot" to forward on the request for documents that had been relayed by Arpaio's lawyer Timothy Casey.
Casey ate crow before Snow last week during oral arguments in which he had to admit that the stat sheets were relevant, that they had been destroyed, that countless relevant e-mails may have been destroyed as well, and that plaintiffs' motion for sanctions was appropriate under the circumstances.
Judge Snow gave the plaintiffs much, if not everything that they sought. Snow granted the motion for sanctions, "with the appropriate adverse inference(s) to be drawn to be determined after discovery closes." That means, to some degree, Snow will allow that the destroyed evidence would have been harmful to Arpaio's defense. (You can read Snow's entire order, here.)
In addition, Snow ordered that the plaintiffs could re-depose Arpaio, based on a secret immigration file that was not turned over by the sheriff prior to his December deposition.
Actually, it was only during Arpaio's long, embarrassing videotaped depo that he revealed the existence of the 800-plus page file, as well as the fact that his lawyer had never asked him to retain such documents for discovery in this lawsuit. Which makes you wonder if Casey should be forced to refund some of that more than $424K he's garnered so far in legal fees and expenses from this case alone.
Maricopa County's Risk Management office tells me that Casey's going rate is $190 per hour. That might not be so bad if he were making sure his clients were complying fully with the discovery process.
Regarding the missing e-mails, Judge Snow ordered that,
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"...on or before March 4, 2010 Defendants shall provide to Plaintiffs: (1) a description under oath of the steps Defendants have taken to recover all responsive communications from their information management system and its back-ups; (2) a complete list of the new documents that have been recovered and the dates of the documents recovered; (3) the sources from which the additional documents were recovered; (4) the inherent limitations on Defendants search for documents that are imposed by Defendants document retention systems; (5) the components in that system; and (6) any evidence relating to the scope of any litigation hold actually implemented by Defendants after the initial complaint was filed, and any documents retained pursuant to that hold."
All of which reminds me of what Ronald Reagan used to say about the Russians during the Cold War: "Trust, but verify."
Snow set a status conference on the e-mail issue for March 19. There, "the Court will determine what additional discovery is appropriate in light of the newly provided documents and materials, any appropriate limits on that additional discovery, and who will pay for it."
Interestingly, Snow made no mention of Chief Deputy David Hendershott's secret AOL e-mail account, discovered by the plaintiffs after they were assured that neither Hendershott nor Arpaio use e-mail. Hendershott was today deposed by Steptoe lawyer David Bodney, and I hear the depo took the better part of the day. As soon as I have more info on it, believe me, I'll share it with you.