Melendres, et al. v. Arpaio, et al
Filing
493
ORDER Defendants' Renewed Motion for Sanctions Doc. 416 is granted in part, and Plaintiffs will be entitled to adverse inferences at trial. Signed by Judge G Murray Snow on 12/23/2011. (NOTE: See PDF for full details)(KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega Melendres, et al.,)
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Plaintiffs,
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vs.
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Joseph M. Arpaio, in his individual)
capacity as Sheriff of Maricopa County,)
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Arizona, et al.,
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Defendants.
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No. CV-07-2513-PHX-GMS
ORDER
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Pending before the Court is Plaintiffs’ Renewed Motion for Sanctions. (Doc. 416).
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Oral arguments were held on December 22, 2011. For the reasons stated below, Plaintiffs’
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motion is granted and the Court will permit the finder of fact at trial to draw adverse
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inferences based on the destruction of documents by the Defendants.
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As further explained below, Plaintiffs seek only injunctive relief and have not
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requested a jury trial. At oral argument, both parties agreed that the Court will likely be the
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finder of fact at trial. In light of the discretion with which it should use inherent power, the
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Court reserves the right to alter the inferences or issue further permissive inferences as the
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need arises during the course of this litigation.
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BACKGROUND
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This putative class action civil rights suit alleges that the Maricopa County Sheriff’s
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Office (“MCSO”) engages in a policy or practice of racial profiling. (Doc. 26 ¶ 2). The
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background facts relevant to the sanctions motion, in which numerous emails and “stat
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sheets”1 responsive to Plaintiffs’ discovery requests were destroyed by Defendants, can be
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found in the Court’s earlier order granting sanctions. (Doc. 261). Since that order was issued,
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the Maricopa County Office of Enterprise Technology (“OET”) announced that it had in its
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possession a database of MCSO emails dating back to August, 2008 which it had archived
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pursuant to a litigation hold in an unrelated case. (Doc. 283, Ex. 1(C)). Defendants agreed
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to provide Plaintiffs with a “carve-out” of the data recovered by OET, which contained all
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of the archived MCSO emails except those containing the names of attorneys representing
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MCSO in various matters. (Doc. 330). The carve-out contained numerous emails which
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would have been responsive to the discovery requests but which had not been provided by
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MCSO, ninety-two of which Plaintiffs include as exhibits to their motion for partial summary
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judgment. (Doc. 450 at 1).
DISUCSSION
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1. Legal Standard
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A party engages in spoliation when it destroys documents even though it “had some
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notice that the documents were potentially relevant to the litigation before they were
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destroyed.” U.S. v. Kitsap Physicians Service, 314 F.3d 995, 1001 (9th Cir. 2002) (internal
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quotations omitted). Once it determines that a party has destroyed evidence, the Court has
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an inherent power to issue sanctions, including to order the finder of fact “that it may infer
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that the spoiled or destroyed evidence would have been unfavorable to the responsible party.”
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“Stat sheets” are forms on which deputies of the MCSO record their patrol activities.
Deputies record the total number of stops, contacts, and arrests made during a tour. Stat
sheets may also allow deputies to document the type of arrest made, such as a drug arrest, a
DUI arrest, a warrant arrest, or an arrest of a suspected illegal alien. (See Doc. 235, Ex.
9(A)–11).
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Medical Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F. 3d 806, 824 (9th Cir. 2002). In
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fashioning an adverse inference instruction, a court should consider whether the party
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seeking an instruction has shown “(1) that the party having control over the evidence had an
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obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with
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a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim
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or defense such that a reasonable trier of fact could find that it would support that claim or
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defense.” In re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1078 (N. D. Cal
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2006) (internal quotations omitted).
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An organization is put on notice that evidence must be preserved, for the purposes of
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the Napster test, “[a]s soon as a potential claim is identified.” 462 F. Supp. 2d at 1067. When
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an organization is put on notice, notice is imputed to its employees, in order to prevent “an
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agency, corporate officer, or legal department [from shielding] itself from discovery
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obligations by keeping its employees ignorant.” Nat’l Ass’n of Radiation Survivors v.
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Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987); cf. New Times v. Arpaio, 217 Ariz. 533, 541,
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177 P.3d 275, 283 (App. 2008) (“If public entities could be excused from providing public
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records merely by being inattentive to requests, then access to the records would be easily
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frustrated.”). If, however, documents are not available “because of the inadvertent loss of the
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evidence” before a party had notice of a lawsuit, an adverse inference instruction is not
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merited. Medical Lab, 306 F.3d at 825; see also Marceau v. Int’l Bhd. of Elec. Workers, 618
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F. Supp. 2d 1127, 1174 (D. Ariz. 2009) (destruction of duplicate copies of documents
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pursuant to company policy a year before a lawsuit was filed may constitute “an innocent
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reason” for loss).
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Once a court has determined that documents were destroyed after a party was put on
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notice that they should be preserved, “a party’s motive or degree of fault in destroying
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evidence is relevant to what sanction, if any, is imposed.” Napster, 462 F. Supp. 2d at
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1066–67. “[A] finding of ‘bad faith’ is not a prerequisite” to a district court’s imposition of
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an adverse inference. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (citing Unigard
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v. Lakewood, 982 F.2d 363, 368–70 n.2 (9th Cir. 1993)). When a party on notice
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intentionally destroys, rather than accidentally loses, that evidence, it is a “willful” spoliator
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even if it did not intend to deprive an opposing party of relevant evidence. Leon v. IDX
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Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) (destruction was willful when a party
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“knew he was under a duty to preserve [evidence], but intentionally deleted many files and
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then wrote a program to write over the deleted documents”).
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“Because of their very potency, inherent powers must be exercised with restraint and
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discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). While a court may take the
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degree of culpability into account when fashioning an adverse inference, it nevertheless must
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“impose the ‘least onerous sanction’ given the extent of the offending party’s fault and the
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prejudice to the opposing party.” Napster, 462 F. Supp. 2d at 1078 (quoting Schmid v.
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Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). In particular, an adverse
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inference should “not interfere with that party’s right to produce other relevant evidence.”
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In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).
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2. Analysis
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Plaintiffs issued two separate and adequate requests that Defendants preserve
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documents relevant to this litigation, and Defendants nevertheless destroyed responsive
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documents. On July 21, 2008, counsel for Plaintiffs wrote a letter to counsel for Defendants
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in this matter demanding preservation of MCSO records regarding MCSO special operations.
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(Doc. 227, Ex. E). On the same day that they wrote to counsel for the Defendants, Plaintiffs’
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counsel made a virtually identical request for information directly to the MCSO’s Public
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Information Officer pursuant to the Arizona Public Records Act. A.R.S. § 39-121 (2008).
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(Doc. 235, Ex. 3(B)) (“PIR request”). Neither letter resulted in a litigation hold. MCSO
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Deputy Chief Jack MacIntyre acknowledged that he took no action regarding the first letter,
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and MCSO Lieutenant Doris “Dot” Culhane stated that if she took any action at all in
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response to the second, it was only to issue a “general instruction.” (Doc. 235, Exs. 3, 4).
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Moreover, emails deleted by MCSO officers and recovered by OET demonstrate that officers
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in fact had actual notice of the suit. Lieutenant Sousa received and forwarded a press release
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announcing this litigation, in an email to other officers requesting documentation of a named
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Plaintiff’s arrest. (Doc. 417, Ex. 2–3). As of July 16, 2008, MCSO had notice that documents
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relating to special operations were “potentially relevant to the litigation.” Kitsap, 314 F.3d
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at 1001.
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Defendants intentionally destroyed the documents. They state that they “inadvertently
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and innocently discarded the stat sheets,” but do not contest that the sheets were shredded,
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rather than lost. (Doc. 445). Moreover, Defendants do not contest that MCSO officers
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intentionally deleted emails, as stated in deposition testimony. (Doc. 227, Ex. A). Because
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Defendants had notice that the emails and stat sheets were relevant to the litigation, and
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subsequently destroyed them, permissive adverse inferences are justified even if Defendants
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did not intend to deprive Plaintiffs of relevant evidence. Leon, 464 F.3d at 959; see also
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Glover, 6 F.3d at 1329.
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This court has already found that adverse inferences will be issued regarding the stat
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sheets because they were destroyed with a culpable state of mind and because “[t]he
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information contained in the individual stat sheets would have been relevant to the claims of
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Plaintiffs and/or defenses of Defendants.” (Doc. 261 at 10). Regarding emails, in an order
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issued before the OET database was recovered, this Court wrote that the decision to issue
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inferences and to define their scope would be made based upon the efforts made by
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Defendants to recover lost documents, the sources from which documents were recovered,
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and the content of recovered documents. (Doc. 261 at 11–12). Since the emails that were
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provided by the OET carveout in large measure obviated the necessity to search for more lost
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documents, the inferences will instead be crafted based upon the content of the recovered
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email.
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A. Stat Sheets
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The MCSO stat sheets allow individual officers to capture data regarding the number
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of contacts and types of arrests that they make during a particular tour. (Doc. 235, Exs.
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9–11). Some of the sheets also allow deputies to mark the number of arrests made of
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suspected illegal aliens. (Id.). The stat sheets identify officers, but do not offer a means by
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which an officer can note the race or ethnicity of the people stopped during a patrol. (Id.).
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Chief Brian Sands has stated that documentation of officer activity is the best evidence
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that an officer in fact engaged in a “zero tolerance” policy, stating that “the end results at the
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end of the day speak for themselves, how many arrests were made, how many contacts were
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made, that type of thing.” (Doc. 453, Ex. 14 at 122, ln 15–17). MCSO has destroyed
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numerous stat sheets that could have shown whether officers in fact engaged in a zero
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tolerance a policy. Indeed, the few stat sheets that were not shredded show significant
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variations between the number of stops and arrests conducted by individual officers during
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special operations, including some sheets showing officers conducted very few stops during
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a long shift while allegedly enforcing a “zero tolerance” policy. (Doc. 419, Ex. 27). One
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MCSO officer, when presented with a stat sheet detailing an officer’s activity during a
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special operation, confirmed that it documented fewer stops than a “zero tolerance” policy
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would suggest. (Doc. 419, Ex. 29). Plaintiffs are therefore granted the following permissive
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adverse inferences:
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1) The finder of fact may infer that the stat sheets would have suggested that officers
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involved in special operations did not follow a “zero tolerance” policy requiring them
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to stop all traffic offenders.
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2) The finder of fact may infer that the stat sheets for special operations would have
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included a significantly higher number of arrests in the categories “Illegal Alien
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turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”
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than records documenting ordinary patrol activity.
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B. MCSO Emails
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After OET provided its recovered Database to Defendants, Defendants gave Plaintiffs
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a “carveout” containing MCSO emails except for those that include the names of attorneys
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representing MCSO. (Doc. 330). Many of the emails deleted by MCSO were present in the
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OET carveout, which preserved emails on OET’s backup tapes as of “some date in August,
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2008.” (Doc. 283, Ex. 1(C)). Although Plaintiffs have used numerous emails from the
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carveout to argue the merits of their case, additional material is unrecoverable, and adverse
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inferences will be issued regarding this lost material. Some of the material from Sheriff
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Arpaio’s immigration file, which was provided in its entirety and therefore will not be subject
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to adverse inferences, also sheds light on the nature of the deleted emails.
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MCSO officers received and circulated requests that the department conduct special
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operations based upon criteria other than criminal activity. Some of these communications
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were found in Sheriff Arpaio’s file, while others were found in the OET carveout. Sample
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communications from the public include requests that MCSO conduct special operations in
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Sun City because the writer heard employees of a restaurant speaking Spanish, that MCSO
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operate in Surprise because the writer observed “dozens of day workers” there, and that it
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send officers to Mesa because the writer observed day laborers, “most of whom, I would
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believe to be here illegally.” (Doc. 428, Exs. 25–26, 28). Subsequently, MCSO conducted
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special operations in the locations specified in the communications. (Doc. 453 ¶ 65–68). At
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least two emails refer to a file or collection of citizen requests, although no such file was
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provided during discovery. (Doc. 417, Ex. 14; Doc. 451, Ex. 38). Some communications
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obtained in discovery reference previous emails that were never produced. (Doc. 418, Ex.
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21). In addition, the carveout included racially derogatory emails circulated among MCSO
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officers and volunteer posse members. (Doc. 431, Exs. 94–115).
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Defendants were on actual notice of this lawsuit by July 16, 2008, and the carveout
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captured emails present on the OET system as of some day in August 2008. Although
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Plaintiffs offer no good reason to suppose that the complete nature and type of the possibly
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missing documents are not of the same nature as those in the carveout, they have
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demonstrated that documents remain missing. Moreover, the content of the recovered emails
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could constitute circumstantial evidence of discriminatory intent by MCSO. Therefore, at
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trial, the following inferences will be allowed:
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1) The finder of fact may infer that MCSO maintained a file of citizen complaints
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making requests for special operations.
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2) The finder of fact may infer that MCSO received and circulated citizen complaints
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prior to August 31, 2008 requesting that MCSO officers conduct special operations
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to enforce immigration-related law in areas where MCSO later conducted such
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operations.
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3) The finder of fact may infer that at least some of the citizen communications
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described above complained about “Mexicans,” “day laborers,” or “illegal
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immigrants” but did not provide a description of any criminal activity.
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CONCLUSION
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Plaintiffs made two separate and sufficient requests to MCSO that it retain documents,
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and MCSO nevertheless destroyed responsive stat sheets and emails. Plaintiffs will be
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granted permissive adverse inferences regarding both the stat sheets and the emails. The
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Court reserves the right to issue further permissive inferences at or before trial as necessary.
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IT IS THEREFORE ORDERED:
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Defendants’ Renewed Motion for Sanctions (Doc. 416) is granted in part, and Plaintiffs
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will be entitled to the following adverse inferences at trial:
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a) The finder of fact may infer that the stat sheets would have suggested that officers
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involved in special operations did not follow a “zero tolerance” policy requiring them
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to stop all traffic offenders.
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b) The finder of fact may infer that the stat sheets for special operations would have
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included a significantly higher number of arrests in the categories “Illegal Alien
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turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”
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than records documenting ordinary patrol activity.
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c) The finder of fact may infer that MCSO maintained a file of citizen complaints
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making requests for special operations.
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d) The finder of fact may infer that MCSO received citizen complaints prior to August
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31, 2008 requesting that MCSO officers conduct special operations to enforce
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immigration-related law in areas where MCSO later conducted such operations.
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e) The finder of fact may infer that some of the citizen communications described
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above complained about “Mexicans,” “day laborers,” or “illegal immigrants” but did
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not provide a description of any criminal activity.
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The Court reserves the right to issue further permissive inferences at or before trial
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as necessary.
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Dated this 23rd Day of December, 2011
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