United States of America v. Maricopa, County of et al

MOTION in Limine re: untimely produced evidence

D. Ariz.July 10, 2015

Mark Kappelhoff Deputy Assistant Attorney General Judy Preston (MD Bar, no numbers assigned) Timothy D. Mygatt (DC Bar No. 1021564) Edward G. Caspar (MA Bar No. 650566) Jennifer L. Mondino (NY Bar No. 4141636) Paul Killebrew (LA Bar No. 32176) Puneet Cheema (CA Bar No. 268677) Matthew J. Donnelly (IL Bar No. 6281308) U.S. Department of Justice, Civil Rights Division Special Litigation Section 601 D St. NW, Suite 5200 Washington, D.C. 20004 Attorneys for the United States IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, v. Maricopa County, Arizona; and Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona, Defendants. No. 2:12-cv-00981-ROS UNITED STATES’ MOTION IN LIMINE TO PRECLUDE DEFENDANT ARPAIO’S USE OF UNTIMELY PRODUCED EVIDENCE Plaintiff, the United States, respectfully moves to preclude Defendants’ use of video evidence that Defendant Sheriff Arpaio failed to timely produce in discovery. Because Defendant Sheriff Arpaio failed to produce this evidence prior to the close of fact discovery, and prior to the United States’ depositions of MCSO personnel, Defendant Arpaio prevented the United States from being able to meaningfully evaluate the evidence and make relevant inquiries to MCSO personnel during depositions. Because of this prejudice, Defendants should be precluded from using the evidence at trial. 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 Case 2:12-cv-00981-ROS Document 383 Filed 07/10/15 Page 1 of 4 2 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 DISCUSSION Discovery in this case began in February 2013. Rule 16 Sched. Order, ECF No. 77. This Court’s Scheduling Orders required the Parties to complete fact discovery, including production of documents, by April 11, 2014. Second Am. R. 16 Sched. Order at 2, ECF No. 134; Fourth Am. R. 16 Sched. Order at 2, ECF No. 279. The Fourth Amended Rule 16 Scheduling Order further required the Parties to serve all final supplements of all discovery by September 15, 2014. Order at 2, ECF No. 279. Early in discovery, on April 16, 2013, the United States issued its First Set of Requests for Production of Documents and Things to Defendant Arpaio. See Requests for Production (attached Exh. A); Notice of Service, ECF No. 84. The United States requested “Any and all documents and ESI relating to the . . . carrying out . . . of, each and every worksite law enforcement operation, as defined above, from January 1, 2008, to the present . . . .” See Request for Production No. 22 at 14. The Requests defined “Worksite law enforcement operation” as “any worksite raid or law enforcement operation of the nature of those that MCSO has called ‘identity theft operations’ and ‘criminal employment operations’ and of which MCSO had conducted 72 as of March 14, 2013, according to a March 14, 2013 MCSO News Release.” Requests for Production at 7. Despite having some videos made as early as 2008, Defendant Apaio waited to produce any videos of worksite law enforcement operations until the very last day to supplement all discovery. On September 15, 2014, over one year after the United States’ Request, five months after the close of fact discovery, and the final day on which to supplement all discovery, MCSO provided to the United States its Fourteenth Supplemental Disclosures. See Defendant Arpaio’s Notice of Service of Fourteenth Supp. Disclosure Statement, ECF No. 319. In his Fourteenth Supplemental Disclosure, Defendant Arpaio produced for the first time videos from identity theft operations. See Excerpt of Defendant Arpaio’s Fourteenth Supp. Disclosure at 122-24 (attached Exh. B). Most of the operations for which Defendant produced videos occurred between 2008 and Case 2:12-cv-00981-ROS Document 383 Filed 07/10/15 Page 2 of 4 3 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 2013. These videos appear to be taken by Defendant Arpaio’s officers, and thus appear to have been in his custody well before he produced them. Defendant Arpaio did not provide any indication that the videos had not previously been in his custody or any other explanation for why the videos had not been previously produced. See Excerpt of Defendant Arpaio’s Fourteenth Supp. Disclosure. These untimely produced videos were responsive to Request No. 22 of the United States’ April 16, 2013, Requests for Production. Despite the United States’ April 2013 Request, Defendant Arpaio failed to produce the videos, or otherwise notify the United States of the videos’ existence, until September 15, 2014. Had Defendant Arpaio timely produced the videos during the course of discovery, the United States would have had an opportunity to review the videos during discovery, issue follow-up discovery requests, make proper inquiries regarding any acts reflected in the videos during depositions of MCSO deputies involved in the worksite operations, and possibly have experts opine on the videos. Defendant Arpaio’s withholding these videos until the very last day to supplement discovery thus prejudiced the United States’ case. Because Defendant Arpaio effectively precluded the United States from making any meaningful use of the evidence that was in Defendant Arpaio’s custody during the course of discovery, and that evidence was responsive to the United States’ Request, Defendants should be precluded from using the video evidence at trial. Accordingly, this Court should order that Defendants are precluded from using the videos that Defendant Arpaio produced only in his Fourteenth Supplemental Disclosure. Respectfully submitted, Mark Kappelhoff Deputy Assistant Attorney General Civil Rights Division Judy Preston Acting Chief, Special Litigation Section Case 2:12-cv-00981-ROS Document 383 Filed 07/10/15 Page 3 of 4 4 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 Timothy D. Mygatt Special Counsel /s/ Puneet Cheema Edward G. Caspar (MA Bar No. 650566) Special Counsel Jennifer L. Mondino (NY Bar No. 4141636) Paul Killebrew (LA Bar No. 32176) Puneet Cheema (CA Bar No. 268677) Matthew J. Donnelly (IL Bar No. 6281308) Trial Attorneys U.S. Department of Justice Civil Rights Division- PHB 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Tel. (202) 514-2000/Fax (202) 514-6273 edward.g.caspar@usdoj.gov ATTORNEYS FOR THE UNITED STATES CERTIFICATE OF SERVICE I certify that on July 10, 2014, I electronically filed the foregoing using the Court’s CM/ECF System, which will send notice of the filing to counsel of record. _/s/_Puneet Cheema Case 2:12-cv-00981-ROS Document 383 Filed 07/10/15 Page 4 of 4