Puente Arizona et al v. Arpaio et al
Filing
431
ORDER re discovery conference call of 1/20/2016. Signed by Judge David G Campbell on 2/19/2016. (DGC, nvo)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Puente Arizona, et al.,
Plaintiffs,
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No. CV-14-01356-PHX-DGC
ORDER
v.
Joseph M. Arpaio, Sheriff of Maricopa
County, Arizona, in his official capacity, et
al.,
Defendants.
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The Court held a discovery conference call with the parties on January 20, 2016.
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Doc. 370. Defendants raised concerns regarding invocations of the Fifth Amendment
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during the depositions of the two Expungement Plaintiffs, Sara Edith Cervantes Arreola
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and Elia Estrada Fernandez.
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addressed on a question-by-question basis, the Court directed the parties to submit a
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matrix which set forth each question, each Fifth Amendment refusal to answer,
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Defendants’ arguments as to why the invocation was improper, and Plaintiffs’ arguments
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as to why the Fifth Amendment was properly invoked. Doc. 373.
Because assertions of the Fifth Amendment must be
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The parties submitted the matrix on January 29, 2016. Doc. 398. The Court has
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conducted a question-by-question review, and has also read the questions and answers in
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the context of the deposition transcripts which the Court later required the parties to file.
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Docs. 424; 424-1. The Court concludes that the Fifth Amendment privilege against self-
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incrimination was properly invoked by the Expungement Plaintiffs with respect to
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virtually all of the questions.
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A.
Legal Standard.
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The Fifth Amendment provides that “[n]o person . . . shall be compelled in any
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criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth
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Amendment’s protections apply to civil proceedings. Doe v. Glanzer, 232 F.3d 1258,
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1263 (9th Cir. 2000). In the civil context “the invocation of the privilege is limited to
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those circumstances in which the person invoking the privilege reasonably believes that
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his disclosures could be used in a criminal prosecution, or could lead to other evidence
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that could be used in that manner.”
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incrimination does not depend upon the likelihood, but upon the possibility of prosecution
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and also covers those circumstances where the disclosures would not be directly
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incriminating, but could provide an indirect link to incriminating evidence.”
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(emphasis in original; quotation marks and citation omitted).
Id.
“Therefore, the privilege against self-
Id.
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B.
Analysis.
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Virtually all of the questions at issue concern the Expungement Plaintiffs’ use of
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falsified documents to obtain employment. There were many questions about social
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security numbers, including whether certain social security numbers belonged to the
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Expungement Plaintiffs (see Docs. 424 at 56; 424-1 at 18-19, 36-37, 102-03), whether
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they had used these social security numbers to obtain employment (see Docs. 424 at 43-
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44, 49, 53; 424-1 at 16-19, 36-37, 96-98, 103-04, 106-08), and how they had initially
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obtained these social security numbers (see Docs. 424 at 36; 424-1 at 102-03). There
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were also a number of questions about tax documents, including whether the
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Expungement Plaintiffs had signed certain forms, such as IRS Form W-4 (see Doc. 424 at
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37-38, 41-43) and Arizona Form A-4 (see id. at 44), whether they had filed tax returns
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(see Docs. 424 at 57; 424-1 at 27), and whether information on certain tax documents
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was accurate (see Doc. 424 at 44).
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immigration document, a Permanent Resident Card, was hers. See id. at 53-54. Ms.
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Estrada Fernandez was asked about using a false name on her employment paperwork.
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See Doc. 424-1 at 32-33.
Ms. Cervantes Arreola was asked whether an
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Defendants argue that the Fifth Amendment was not properly invoked in response
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to these questions because the Expungement Plaintiffs admit they were previously
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convicted under Arizona identity theft statutes for using false identifications to obtain
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employment, the convictions were based on the Expungement Plaintiffs’ guilty pleas, the
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prosecutions in which the Expungement Plaintiffs pled guilty were based on the very
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documents presented to them in their depositions, three years have now passed without
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any evidence of a federal investigation or federal prosecution based on the same
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documents and information, and the Expungement Plaintiffs therefore have not shown
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any substantial or real threat of prosecution. For several reasons, the Court is not
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persuaded by these arguments.
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First, although it is true that the Expungement Plaintiffs have admitted that they
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were convicted of violating Arizona identity theft laws, they are not basing their current
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Fifth Amendment assertions on those laws. Instead, they base their invocations of the
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Fifth Amendment on federal statutes prohibiting the making or use of false statements on
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tax documents (26 U.S.C. § 7206(1)), fraud or misuse of immigration or other documents
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(18 U.S.C. § 1546(a), (b)), social security fraud (18 U.S.C. § 408(a)(7)(c)), the making of
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false statements (18 U.S.C. § 1001(a)), perjury (18 U.S.C. § 1621), and tax evasion (26
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U.S.C. § 7201)). The fact that the Expungement Plaintiffs were previously convicted of
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violating Arizona identity theft laws does not prohibit their prosecution under these
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federal statutes.
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Second, Defendants assert that prosecution of the Expungement Plaintiffs under
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the federal statutes is highly unlikely given that three years have passed since they
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entered guilty pleas in the state case.
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Plaintiffs identify no instances where similar prosecutions have occurred. All of this may
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be true, but Defendants have not shown that prosecutions based on the above-cited
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federal statutes would be barred by the statute of limitations, double jeopardy, or some
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form of immunity. Thus, there appears to be no legal bar to the prosecution of the
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Expungement Plaintiffs for violating these laws.
Defendants also note that the Expungement
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Third, Defendants note that the various documents presented during the
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depositions were the same documents at issue in the Expungement Plaintiffs’ violation of
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Arizona identity theft laws. But Defendants have not shown where the Expungement
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Plaintiffs admitted the facts asked about in their depositions. The parties have provided
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the Court with the transcript of Ms. Cervantes Arreola’s guilty plea in state court, and the
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plea colloquy contains nothing more than a simple admission of guilt. See Doc. 398-1 at
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10 (admitting that “on or about July 8, 2010 and within Maricopa County, Ms. Cervantes
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possessed or used personal identifying information of another person, including a
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fictitious person, with the intent to obtain employment”). It did not address any of the
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documents presented during Ms. Cervantes Arreola’s deposition, and did not include her
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admission to any of the facts about which she was asked in the deposition. Thus, even
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though the documents may have been at issue in the state court prosecutions, Defendants
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cannot show that the Expungement Plaintiffs previously made admissions with respect to
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those specific documents. Answers to the questions posited by the Defendants would
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therefore be new admissions.
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Fourth, the Court is not persuaded that it can overrule the Expungement Plaintiffs’
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Fifth Amendment assertions merely because prosecution under the relevant federal
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statutes appears unlikely. It is true that the law on this subject is somewhat ambiguous,
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providing helpful quotations for both sides. The Supreme Court has stated that the Fifth
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Amendment applies only when a person is faced with “substantial and ‘real,’ and not
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merely trifling or imaginary, hazards of incrimination.” Marchetti v. United States, 390
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U.S. 39, 53 (1968) (citations omitted).
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emphasized, as quoted above, that the “privilege against self-incrimination does not
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depend upon the likelihood, but upon the possibility of prosecution.” Glanzer, 232 F.3d
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at 1263 (citing United Liquor Co. v. Gard (In Re Seper), 705 F.2d 1499, 1501 (9th Cir.
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1983)).
It is also true, however, that courts have
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The Court finds helpful guidance in the Supreme Court’s seminal decision of
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Hoffman v. United States, 341 U.S. 479 (1951). The high court made clear that the
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privilege against self-incrimination “not only extends to answers that would in
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themselves support a conviction under a federal criminal statute but likewise embraces
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those which would furnish a link in the chain of evidence needed to prosecute the
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claimant for a federal crime.” Id. at 486 (citation omitted). The court clarified that “this
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protection must be confined to instances where the witness has reasonable cause to
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apprehend danger from a direct answer.” Id. (citation omitted). The court also stated that
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“[t]o sustain the privilege, it need only be evident from the implications of the question,
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in the setting in which it is asked, that a responsive answer to the question or an
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explanation of why it cannot be answered might be dangerous because injurious
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disclosure could result.” Id. at 486-87.
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The Court has reviewed each of the federal statutes cited by the Expungement
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Plaintiffs and concludes that the questions asked by Defendants would assist a prosecutor
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in proving some element of the crimes set forth in those statutes. They would, as
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Hoffman notes, “furnish a link in the chain of evidence” needed to prosecute the
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Expungement Plaintiffs for a federal crime. And when the Court considers the questions
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in the setting in which they were asked, as Hoffman directs, the Court concludes that the
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Expungement Plaintiffs have reasonable cause to apprehend danger from answering the
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questions. The Expungement Plaintiffs admit they are undocumented immigrants. They
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have previously admitted to violating state identity theft statutes. Their responses to
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questions posed by Defendants could provide evidence upon which a federal prosecutor
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might rely in prosecuting them for various federal crimes. Defendants have identified no
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legal impediment to such a prosecution. Given these circumstances, the Court finds that
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the Expungement Plaintiffs have reasonable cause to apprehend danger from the
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questions posed by Defendants.
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True, three years have passed since the Expungement Plaintiffs admitted to state
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identity theft. Also true, the Expungement Plaintiffs have not cited examples of similar
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prosecutions. But the Court can find no case holding that the Fifth Amendment was
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improperly invoked merely because the person asserting the privilege was unable to
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prove an imminent threat of prosecution. Clearly, the possibility of prosecution exists
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here, and answers to the questions could provide evidence for such a prosecution. This is
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sufficient to sustain the Expungement Plaintiffs’ invocation of the Fifth Amendment. See
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Glanzer, 232 F.3d at 1263; see also United States v. Jones, 703 F.2d 473, 478 (10th Cir.
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1983) (“Once the court determines that the answers requested would tend to incriminate
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the witness, it should not attempt to speculate whether the witness will in fact be
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prosecuted.”) (collecting cases); United States v. Edgerton, 734 F.2d 913, 921 (2d Cir.
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1984) (same).
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C.
Conclusion.
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The Court concludes that the Fifth Amendment was properly invoked with respect
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to questions 1-3, 5-9, 11, and 14-17 in the Cervantes Arreola deposition. These numbers
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correspond to numbers in the parties’ matrix. See Doc. 398. The Court finds that
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questions 4, 10, 12-13, and 18 were ultimately answered by Ms. Cervantes Arreola and
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therefore present no Fifth Amendment issue. The Fifth Amendment was also properly
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invoked in response to questions 2-9 and 11-21 in the Estrada Fernandez deposition.
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Questions 1 and 10 were ultimately answered by Ms. Estrada Fernandez and therefore do
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not present a Fifth Amendment issue.
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Because each of the questions either invoked a proper Fifth Amendment objection
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or was ultimately answered, the Court concludes that no basis exists for Defendants to
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conduct further depositions of the Expungement Plaintiffs on the matters addressed in
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this order.
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Dated this 19th day of February, 2016.
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