WHAT ARE PLAINTIFFS’ ATTORNEYS SEEKING?
by Sharon Rondeau
(Oct. 7, 2015) — On September 29, 2015, attorneys for Sheriff Joseph M. Arpaio filed a “Motion to Partially Quash Plaintiffs’ Subpoena to Produce Documents, Information, or Objects Re: Michael Zullo” in the case of Melendres, et al v. Arpaio, et al, a civil case filed against the Maricopa County Sheriff’s Office and Maricopa County in early 2007 for allegedly racially profiling Latinos during traffic stops and searches for illegal aliens.
Melendres was filed in 2007 by the ACLU, which claimed that the plaintiffs had been discriminated against by Arpaio’s deputies during traffic stops. The lawsuit has been ongoing since then, with millions of taxpayer dollars spent on attorneys for both plaintiffs and defendants.
In late 2011, U.S. District Court Judge G. Murray Snow ordered in Melendres that immigration sweeps by the MCSO cease. Arpaio’s office had been working with the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) under the 287(g) program since 2007 to apprehend illegal aliens. As of 2009, both ICE and Arpaio said that the 287(g) agreement was effective in identifying illegal aliens and instituting removal proceedings if indicated.
Los Angeles County renewed its 287(g) arrangement with ICE last October but has not received the same level of criticism as Arpaio.
On October 6, the AP reported that deportations of illegal aliens nationally have steadily fallen since 2012.
Zullo is the lead investigator of the Maricopa County Cold Case Posse, a volunteer organization which was called upon by Maricopa County Sheriff Joseph M. Arpaio to investigate the long-form birth certificate image posted on the White House website on April 27, 2011.
On September 25, Zullo was subpoenaed by the plaintiffs’ attorneys to provide three depositions on a matter which Arpaio’s office has said is unrelated to the years-long lawsuit involving a confidential informant, Dennis Montgomery. Zullo’s depositions were scheduled to begin on October 7.
According to numerous radio interviews Zullo provided earlier in the birth certificate investigation, members of Arpaio’s various posses are deputized by the sheriff when necessary to carry out law enforcement activities. The Cold Case Posse’s probe of the birth certificate image began in September 2011 and remains ongoing.
After approximately six months of work, on March 1, 2012, Zullo and Arpaio held a press conference during which they announced that probable cause existed that not only the long-form birth certificate image, but also Obama’s Selective Service registration form are “computer-generated forgeries.”
A second press conference held on July 17, 2012 revealed that the standard of probable cause in the forgery of the birth certificate had been surpassed. At that time, Zullo and Arpaio called upon the media and Congress to launch their own investigations into the posse’s conclusions.
Neither entity did so.
In the fall of 2013, Zullo stated that Arpaio and the posse were preparing to present a final press conference on the birth certificate investigation, most likely in March 2014. However, in December 2013, Zullo revealed that new information provided to the posse would delay any press conference or formal announcement indefinitely.
Zullo also announced that Arpaio had launched a second criminal investigation stemming from but unrelated to the birth certificate project.
On Carl Gallups’ “Freedom Friday” radio show, Zullo pledged to reveal the final conclusions about the birth certificate forgery to the public if various parties refused to act upon the information in their official capacities.
Emails already released by Zullo at Snow’s request indicate that the Maricopa County Sheriff’s Office was remunerating Dennis Montgomery for work product which reportedly did not always materialize as expected.
A lawsuit filed in July against the ACLU by Atty. Larry Klayman claimed that during the Arpaio civil contempt proceedings, ACLU attorneys should have disclosed that Montgomery had approached their organization with the same revelations which he reportedly shared with Arpaio’s office.
Klayman represented Montgomery when he twice attempted to intervene in Melendres to protect his work product from scrutiny. Klayman has maintained that, contrary to published reports, his client is not a “con man,” but rather, a whistleblower.
Klayman also represents Montgomery in a defamation lawsuit filed against New York Times reporter and author James Risen. As a corollary to the lawsuit, Montgomery was granted immunity by the FBI relative to information he provided in a private meeting.
On behalf of Arpaio, Klayman filed a lawsuit on November 20, 2014, just after Obama announced that he was altering federal immigration law to allow millions of illegal aliens to remain in the country under certain conditions. While Arpaio’s suit has thus far faltered in the courts, a 26-state lawsuit alleging that Obama’s declared actions are unconstitutional has been upheld by a federal judge in Texas and a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans.
In December 2013, Snow issued an opinion which stated that Arpaio’s office had committed racial profiling against Latinos and ordered corrective measures, including a monitor whose invoices exceed $300,000 at times, charged to the taxpayers of Maricopa County. Some had criticized Arpaio’s engagement in the 287(g) program because “Arizona taxpayers are footing a greater share of the bill for enforcing immigration laws, usually the responsibility of the federal government,” according to Arizona Central in February 2009.
In March of this year, Arpaio admitted that he had not followed Snow’s instructions precisely and offered to pay $100,000 out of his personal funds to compensate the victims. Snow refused, scheduling a bench trial which began on April 21.
The U.S. Department of Justice has filed two civil cases and conducted a criminal investigation of Arpaio’s office since 2009. Both civil cases were settled out of court, while the DOJ abandoned the criminal investigation quietly in late August 2012.
The DOJ was also granted permission to intervene on behalf of “United States of America” in Melendres.
On April 23 and 24, respectively, Arpaio and his chief deputy, Gerard Sheridan, testified in response to Snow’s questioning that the sheriff’s office had received information from Montgomery that certain MCSO phone lines, tens of thousands of Maricopa County residents’ bank accounts, and the email accounts of a number of federal judges had been breached by a government entity.
Snow had begun the line of questioning about the Montgomery investigation after holding up a hard copy of a Phoenix New Times article dated June 4, 2014 titled, “Joe Arpaio’s Investigating Federal Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer to Do It,” referring to Montgomery. The Phoenix New Times strongly opposes Arpaio’s approach to law enforcement and illegal aliens in the county.
Arpaio’s attorneys objected to Snow’s interjection of the article into the civil contempt hearings on the grounds that it was not introduced as evidence beforehand and that the Montgomery investigation is unrelated to the Melendres case.
Arpaio and Sheridan also testified that the Montgomery probe did not involve an investigation of Snow or anyone in his family, contrary to mainstream media reports.
On May 6, Zullo provided emails associated with the Montgomery investigation, and in late July, Arpaio’s office supplied 50 hard drives and other materials to U.S. marshals under Snow’s order in what was characterized by the mainstream media as a “raid.”
In asking the court to “partially quash the subpoena issued against Michael Zullo for production of documents, information or objects,” Arpaio Attorneys John T. Masterson, Joseph J. Popolizio, and Justin M. Ackerman presented two reasons for their argument: 1) that the plaintiffs’ request was “unreasonable;” and 2) that the request “violates Rule 45.”
On pages 3-4 of their brief, they wrote that “Plaintiffs’ production request for all communications between Mr. Zullo and MCSO and the Cold Case Posse is significantly overbroad.”
They alternatively requested that the court issue a protective order “precluding the Plaintiffs from obtaining responses to their production subpoena” under Rule 26(c)(1).
“As demonstrated above, the documents and information requested in Plaintiffs’ production subpoena create an undue burden and expense because production, if possible, will require the full time attention of Mr. Zullo, an MCSO posse member, for weeks at his own expense. Plaintiffs’ production subpoena is also demonstrably aimed at annoyance and oppression because it seeks information that is overbroad, in an unreasonable time frame, and seeks that information during the ongoing contempt proceedings,” the attorneys contended.
On September 30, Snow issued an order relative to the Motion to Partially Quash stating that “the motion is denied in part and granted in part.”
On October 1, Snow held a hearing in Melendres which was partially closed to the public and the relevant part of the transcript “sealed pending further order of the Court.”
On October 6, the following entry was made in the PACER record in Melendres indicating that the Court had granted Zullo until October 16 to respond to the plaintiffs’ subpoena, which was reportedly “narrowed.”
The order also stated that “Mr. Zullo’s deposition shall then proceed on 10/23/2015.”
An entry dated October 6 states that an appearance by Arizona’s attorney general is to represent an “Aggrieved and Irreparably Injured Class of United States and Phoenix Citizens.”
The first page of the filing reads: