United States of America v. Colorado City, Town of et al

Filing 521

ORDER The motion to compel 472 production of documents is denied as to the Arizona Attorney General's criminal division and granted as to the Arizona Attorney General's civil division. Arizona's motion 478 to quash subpoena is denied. Signed by Judge H Russel Holland on 10/27/2014.(KMG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

)
)
Plaintiff, )
)
vs.
)
)
TOWN OF COLORADO CITY, ARIZONA;
)
et al.,
)
)
Defendants. )
__________________________________________)

No. 3:12-cv-8123-HRH
(Prescott Division)

ORDER
Motion to Compel Production of Documents1
Defendant Town of Colorado City (“Colorado City”) seeks the enforcement of a
Rule 45 subpoena issued by this court seeking production of documents from the Arizona
Attorney General’s Office. The motion is opposed.
In responding to the foregoing motion, the State of Arizona moves to quash the
subpoena in question.2 That motion is also opposed. Oral argument has been requested
as to both motions but is deemed unnecessary.
State’s Motion to Quash
The quashing of a federal court subpoena is procedurally governed by
Rule 45(d)(3)(A).3 Subsection (d)(3)(A) provides: “[o]n timely motion, the court for the
district where compliance is required must quash or modify a subpoena that ... (iii) requires
disclosure of privileged or other protected matter, if no exception or waiver applies....” The

1
2

Docket No. 478.

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here.

Docket No. 472.

Subsections (d)(3)(B) and (C) of Rule 45 have to do with circumstances not relevant

subpoena in question required the Arizona Attorney General’s Office to produce
documents for Colorado City’s counsel in Phoenix by August 25, 2014. The State of
Arizona timely objected to the subpoena. Communications between the relevant parties
failed to resolve the disagreements, and Arizona’s motion to quash was filed September 15,
2014. Colorado City argues that the State of Arizona’s motion to quash was untimely. This
court joins other courts in holding that the “timely” requirement of subsection (d)(3)(A)
requires that a motion to quash be filed before the date for compliance stated in the
subpoena. King v. Fidelity Nat’l Bank of Baton Rouge, 712 F.2d 188, 191 (5th Cir. 1983);
Anderson v. Abercrombie & Fitch Stores, Inc., 6 CV 991-WQH (BLM) 2007 WL 1994059 at
*8 (S.D. Cal. July 2, 2007). The State of Arizona’s motion to quash subpoena is denied.
Motion to Compel
Again, Colorado City seeks to compel the production of documents believed to be
in the possession and control of the Arizona Attorney General’s Office. A detailed
description of the documents sought is contained in an exhibit appended to the subpoena.4
Four categories of documents are sought. The first two categories have to do with an
Arizona grant of immunity to Helaman Barlow. The third category of documents sought
was communications between the Arizona Attorney General’s Office and Mr. Barlow and
his attorneys regarding the Town of Colorado City, its marshal’s department, and/or the
United States Department of Justice.

The fourth category seeks various forms of

communications regarding Colorado City and its marshal’s department which were sent
to or from the Arizona Attorney General’s Office and fourteen named individuals, any
representative or agent of the Department of Justice, and any representative or agent of the
United Effort Plan Trust (“the Trust”). The exhibit concludes with a request for a privilege
log in the event any privilege was claimed by the State of Arizona.

4

Motion to Compel Production of Documents, Exhibit 1 (pages 5 and 6 of 22), Docket
No. 472-1.
Order – Motion to Compel Production of Documents

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This case involves civil rights of identified individuals based upon the Fair Housing
Act, 42 U.S.C. § 3601, et seq., and police misconduct based upon 42 U.S.C. § 14141. The
State of Arizona has parallel proceedings underway involving Arizona Fair Housing
requirements. The Arizona proceedings are and have for a considerable period of time
been before a state grand jury. The court understands that in connection with the grand
jury proceedings, Mr. Barlow has been granted immunity and that he is represented in
connection with the state grand jury proceedings by Lamar Winward and Jay Winward,
both of whom are named in the first and third categories of documents sought by the
subpoena in question. The fourteen individuals named in the fourth category have been
designated by plaintiff in this case as victims of plaintiff’s housing and policing claims.
Inasmuch as the State of Arizona is investigating those same problems, it is reasonable to
infer that the fourteen named individuals are potential victims under the Arizona Fair
Housing laws and persons who are connected with the Arizona grand jury investigation
of the state’s fair housing problem. Inasmuch as the Trust owns much of the property in
Colorado City and, in connection therewith, interacts with the victims of the federal
plaintiff’s claims, it stands to reason that the Trust is an entity of interest in connection with
the Arizona grand jury proceedings.
Arizona law makes it unlawful to disclose grand jury proceedings. A.R.S. § 13-2812
provides in pertinent part that:
A. A person commits unlawful grand jury disclosure if the
person knowingly discloses to another the nature or substance
of any grand jury testimony or any decision, result or other
matter attending a grand jury proceeding, except in the proper
discharge of official duties, at the discretion of the prosecutor
to inform a victim of the status of the case or when permitted
by the court in furtherance of justice.
Plainly the situation before the court does not involve the discretionary disclosure of grand
jury proceedings by state prosecutors. The court reads the last clause of the above statue
as making it permissible for the Arizona court supervising grand jury proceedings to

Order – Motion to Compel Production of Documents

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authorize release of grand jury proceedings in the furtherance of justice. There is no
suggestion here that Colorado City has made any application to the Arizona court for
release of grand jury proceedings. Rather, what is before the court on the instant motion
is the question of whether or not the four categories of communications sought by
Colorado City by the instant subpoena constitute matters “attending a grand jury
proceeding.”
Colorado City contends that it does not seek documents protected by the grand jury
privilege. Colorado City misunderstands the reach of A.R.S. § 13-2812. Mr. Barlow is
plainly a person of interest before the state grand jury; and communications involving
Mr. Barlow, his attorneys, and any form of the Barlow immunity agreement are documents
associated with the state grand jury proceedings and are protected by A.R.S. § 13-2812.
The breadth of the grand jury privilege created by Section 13-2812 is demonstrated
by the holdings of the Arizona court of appeals in Samaritan Health System v. Superior
Court, 895 P.2d 131 (Ariz. Ct. App. 1994). Samaritan makes it clear that the grand jury
privilege extends to documents never reviewed by the grand jury. The Barlow immunity
agreement would likely not have been seen by the grand jury, nor would the grand jury
have been privy to the correspondence between the Arizona Attorney General’s Office,
Barlow, and his attorneys. Nevertheless, all of the foregoing are “matters attending” (that
is, pertaining to) grand jury proceedings. The Arizona Attorney General’s Office’s
communications, if any, with the fourteen victims identified by the plaintiff in this case are
likewise protected by A.R.S. § 13-2812. In Samaritan, the Arizona Court of Appeals
recognizes that:
...persons named in documents preliminarily reviewed by the
prosecutor but not presented to the grand jury are as much
entitled to protection as those not accused after grand jury
review and return of a no bill. Finally, Samaritan and others
whose assistance is sought in the preliminary investigative
phase might be less cooperative if secrecy could not be assured.
Samaritan, 895 P.2d at 133.
Order – Motion to Compel Production of Documents

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If and to the extent that the Arizona Attorney General has communicated with
Mr. Barlow and his criminal defense attorneys or the fourteen named victims, they are
entitled to secrecy with respect to such communications in furtherance of the prosecutor’s
legitimate need to protect the nature and source of grand jury information and
proceedings.
Colorado City – by category IV.15 of the subpoena in question – seeks
communications between the Arizona Attorney General’s Office and the United States
Department of Justice. The State of Arizona contends that the communications are
protected as a matter of law by the common interest privilege. The Ninth Circuit Court of
Appeals recognizes that the joint interest of parties such as the United States and the State
of Arizona is a form or extension of the attorney-client privilege. The reach of this privilege
is explained by the Ninth Circuit as follows:
“Whether the jointly interested persons are defendants or
plaintiffs, and whether the litigation or potential litigation is
civil or criminal, the rationale for the joint defense rule remains
unchanged: persons who share a common interest in litigation
should be able to communicate with their respective attorneys
and with each other to more effectively prosecute or defend
their claims.”
United States vs. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (quoting In re Grand Jury
Subpoenas, 902 F.2d 244, 299 (4th Cir. 1990)) (internal citations omitted). No written
agreement between persons sharing a common interest is required. Id. at 979. Here, there
is clearly a common interest between the Arizona Attorney General and the United States
Department of Justice. They are both pursuing possible civil rights violations by the
Colorado City defendants in this case.
As Colorado City points out, the Arizona Attorney General did not provide a
privilege log describing documents covered by the subpoena which were not produced.
Rule 45(e)(2)(A) provides that:

Order – Motion to Compel Production of Documents

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A person withholding subpoenaed information under a claim
that it is privileged or subject to protection as trial-preparation
material must:
....
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing
information itself privileged or protected, will enable the
parties to assess the claim.
The Arizona Attorney General argues that it cannot describe the nature of the information
which is being withheld beyond advising that the documents withheld involve sensitive
law enforcement materials relevant to and attending an ongoing judicial proceeding.5 In
light of the broad protection afforded grand jury proceedings by Arizona law, the court
holds that Arizona’s explanation that the documents sought are matters attending a grand
jury proceeding is sufficient.
Colorado City’s last-minute and on short notice attempt to invade the Arizona grand
jury proceedings must fail because of A.R.S. § 13-2812 and the joint prosecution or common
interest privilege. However, the subpoena in question is directed to the Arizona Attorney
General. The court understands that, as is the case in many jurisdictions, the Arizona
Attorney General’s Office has two departments or divisions, one civil and the other
criminal. What is protected in this case is the Arizona grand jury proceedings and the
common interest of the United States and the State of Arizona in vindicating civil rights.
If and to the extent that the extent that the civil division of the Arizona Attorney General’s
Office has become involved in matters covered by the Colorado City subpoena, the Arizona
Attorney General must produce the subpoenaed records or a privilege log by
November 14, 2014.

5

State of Arizona’s Opposition to Colorado City’s Motion to Compel at 15, Docket
No. 478.
Order – Motion to Compel Production of Documents

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The motion to compel production of documents is denied as to the Arizona Attorney
General’s criminal division and granted as to the Arizona Attorney General’s civil division.
Arizona’s motion to quash subpoena is denied.
DATED at Anchorage, Alaska, this 27th day of October, 2014.

/s/ H. Russel Holland
United States District Judge

Order – Motion to Compel Production of Documents

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