Joel Fox Case vs. Cox Communications Can Proceed, Judge Rules; "Zorro" E-Mails Shouldn't Have Been Released, Says Former Sheriff's Captain

Joel Fox

​Joel Fox finally has achieved the equivalent of a base hit in a court case.

A federal judge ruled recently that a lawsuit against Cox Communications by the disgraced former captain fired by Maricopa County Sheriff Joe Arpaio can proceed, for now.

At the heart of the lawsuit, so to speak, are love letters Fox e-mailed to his boss, former Deputy Chief Larry Black, under the handle "jdzorro." The Zorro e-mails became evidence in a state criminal investigation of a suspected scheme to violate campaign-finance laws during Arpaio's 2008 re-election bid.

Fox filed separate complaints against Cox and state law enforcement officials in the same week that New Times published mushy excerpts from the letters.

In August, U.S. District Judge Neil Wake threw out Fox's lawsuit against former state Attorney General Terry Goddard and his investigators, noting that the state had every right to serve a search warrant to obtain Fox's e-mails.

Cox's lawyers argued in a subsequent motion that if Goddard wasn't responsible because he issued the warrant in "good faith," then the case against the company should also be tossed, since the company responded to the search warrant in good faith. Typically, that defense provides immunity in a civil case when companies release info because of a search warrant.

But not so fast, says U.S. District Judge Susan Bolton in her December 7 ruling. Whether Goddard issued the search warrant correctly and whether Cox responded to it correctly are two different questions, she noted.

Fox's succinct motion raises the reasonable question of whether Cox's action in releasing the e-mails was excessive and violated the company's own policies against volunteering customer information to authorities, according to the ruling.

After the state requested e-mails from his [email protected] account between October of 2006 and February of 2009, Cox released e-mails dated even earlier. And, most importantly, it released e-mails Fox had penned using auxiliary accounts attached to the "parent" e-mail account. One of those was the "zorro" account, which contained not only the letters to Black about the campaign-finance scheme, but also referred to the "love" they shared for each other.

(A footnote here is warranted: The fact is, those e-mails probably would have been made public regardless of the actions by Cox. Besides turning up on Cox servers, they were also found on the hard-drive of Fox's take-home Maricopa-issued laptop.)

Bolton found that:

... Plaintiff has sufficiently alleged that Cox's violation of the Act was knowing or intentional. To begin with, Plaintiff does not make an improper legal conclusion in his allegations; rather, he alleges that, as a factual matter, the disclosure exceeded the scope of the search warrant and violated Cox's internal policy.

The Court must make all inferences in Plaintiff's favor, and it is plausible that, when Cox disclosed e-mails from three additional e-mail accounts not listed in the search warrant and violated its own company policy regarding disclosure, Cox acted knowingly or intentionally and violated the Act.

To conclude otherwise would be to make an inference in Cox's favor, which would be
improper at this stage in the proceedings.

This is the first time the clouds have cleared for Fox in his legal affairs since he came under the spotlight of scandal in late 2008.

In 2009, he lost a fight with a state administrative judge and was forced under threat of a $315,000 fine to release the names of those who donated to a secret group known as the "Sheriff's Command Association," or SCA. After the money essentially was laundered through the Arizona Republican Party, it was used -- in apparent violation of the law -- to fund a smear ad against Arpaio's 2008 opponent, Dan Saban.

Goddard's office never managed to produce an indictment, and the case languished until the election of state Attorney General Tom Horne, who turned it over to the feds.

Last we heard, the Justice Department still is investigating the case for possible criminal charges. Besides Fox, two of Arpaio's top aides, former state Republican Party chairman Randy Pullen and GOP consultant Chris Baker are considered principles in the investigation.

This year, an internal investigation by the Sheriff's Office concluded that the SCA scheme may have broken state law. Fox, Hendershott and Black were fired, (and not just for the SCA, but for numerous other sustained allegations of unethical, improper actions.)

Next month, Fox -- who also has a pending $8 million claim against various officials -- plans to appeal his firing in a public hearing.

It's unclear how much hope Fox should have in the Cox case. Bolton explained to the company how it could overcome the problem:

"Cox is free to show with evidence that its disclosure was unintentional," she wrote.

At the least, it seems odd that a crime suspect could hide e-mails from the prying eyes of law enforcement simply by creating extra accounts under the main account.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.