Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 1 of 13
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`WO
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`NOT FOR PUBLICATION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`No. CV-07-2513-PHX-GMS
`ORDER
`
`))))))))))))
`
`Manuel de Jesus Ortega Melendres, et
`al.,
`
`Plaintiff,
`
`vs.
`
`Joseph M. Arpaio, et al.,
`Defendants.
`_________________________________
`
`Pending before the Court is Plaintiffs’ Motion for Sanctions (Dkt. # 227). In it
`Plaintiffs ask that the Court: (1) make adverse inference findings about the contents of
`documents destroyed by the Maricopa County Sheriff’s Office (“MCSO”) with the extent
`of those adverse inferences to be determined either at summary judgment or at trial; (2)
`preclude the Defendants from presenting evidence of a “zero tolerance” approach in
`conducting immigration violation suppression patrols with the extent of that preclusion being
`determined at summary judgment or at trial; (3) authorize the redeposition of MCSO’s
`witnesses at MCSO’s expense; and (4) award Plaintiffs their attorneys’ fees and costs
`incurred in bringing this motion. At oral argument on the motion, and at the consent of both
`parties, a few additional discovery matters were raised and resolved.
`After a review of the Motion, Response, Reply and the associated exhibits the Court
`grants the Motion in part as follows.
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 2 of 13
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`BACKGROUND
`Plaintiff Melendres filed his putative class action complaint initiating this case on
`December 12, 2007. That initial complaint is broad-based. In it, Melendres “seeks to
`remedy and stop illegal, discriminatory and unauthorized enforcement of federal immigration
`laws against Hispanic persons in Maricopa County, Arizona.” Plaintiff also seeks damages
`for his unlawful arrest and detention. Complaint at ¶ 1. (Dkt. # 1). Plaintiff sought to
`represent a class of “all individuals of Hispanic descent who reside, are employed, attend
`school and travel within Maricopa County.” Id. at ¶ 67. The complaint alleges that these
`class members have been “subjected to arbitrary, racially-discriminatory stops, detention,
`arrests and/or searches conducted by Defendants. Each putative class member has been
`subjected to stops, detentions, interrogations and/or searches without any reasonable
`articulable suspicion or probable cause that such class member had committed a crime or was
`engaged in criminal activity.” Id. at ¶ 68.
`In addition to Melendres’s arrest, which occurred on September 26, 2007, the
`complaint specifically referred to and challenged the Sheriff’s special operations1 that had
`taken place in the Towns of Cave Creek on September 27, 2007, Queen Creek on October
`4, 2007, an additional incident occurring in Cave Creek on December 8, 2007, and the
`enforcement operations at Pruitt’s Furniture Store in Phoenix. Melendres alleged that the
`Defendants’ enforcement policies constituted racial-profiling and violated a number of the
`rights secured to the members of the putative class by the United States and Arizona
`Constitutions and violated other provisions of federal law. The complaint requested
`declaratory and injunctive relief and compensatory, consequential and punitive damages.
`After Melendres filed his initial putative class action complaint, the Defendants
`conducted a number of additional special operations. On July 16, 2008, Plaintiffs lodged
`their First Amended Complaint. This complaint dropped the request for all damages and
`
`1Plaintiff refers to these operations as “crime suppression sweeps” while the
`Defendants refer to them as “saturation patrols.” The Court will refer to them as the special
`operations.
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 3 of 13
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`added new Plaintiffs and allegations pertaining to the additional special operations that
`Defendants had conducted in the interim.
`On July 21, 2008, new counsel for Plaintiffs wrote a letter to counsel for Defendants
`in this matter. In the letter, Plaintiffs’ counsel demanded the preservation of all MCSO
`records that had to do with: (1) the Cave Creek and Queen Creek patrols; (2) any additional
`MCSO immigration patrols that had occurred since the initial complaint was filed; and (3)
`any “subsequent ‘crime suppression operation’” that occurred or would occur thereafter. The
`request specifically included a request for relevant “Departmental Reports,” “communication
`records, including CAD and MDT reports,”“any communications from . . . MCSO patrol
`cars, officers or volunteers” any [“]emails, memoranda and other communications pertaining
`to planning, execution and results for any of the listed “crime suppression” operations” and
`“reports or analyses of these operations.”
`Counsel for Defendants immediately thereafter transmitted this request to Deputy
`Chief Jack MacIntyre, his contact within the MCSO. By affidavit, however, Deputy Chief
`MacIntyre has avowed to this Court that, “I must have simply, albeit regrettably, forgot to
`forward [the demand for documents] to others at the MCSO.” Thus, he did nothing to retrieve
`or place a hold on the requested documents. He believes, however, that the demand for
`documents was implemented pursuant to the Arizona Public Information Request that was
`sent by Plaintiffs’ counsel to the MCSO on the same date that Plaintiffs sent the litigation
`hold to Defense counsel.
`Deputy Chief MacIntyre is correct that on July 21, 2008, pursuant to the Arizona
`Public Records Act, Ariz. Rev. Stat. § 39-121 (2008), (“PIR request”) Plaintiffs’ counsel
`made a virtually identical request for information directly to the MCSO’s Public Information
`Officer Captain Paul Chagolla. In another affidavit filed in conjunction with MCSO’s
`response to this motion, the then-commander of the Legal Liaison Section within the MCSO,
`Lieutenant Doris “Dot” Culhane, indicates that the PIR request was forwarded to her by
`Captain Chagolla. Lieutenant Culhane does not discuss any attempt by the Legal Liaison
`Office to retain or retrieve documents prior to the date she received Plaintiffs’ PIR request
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 4 of 13
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`from Captain Chagolla. The Legal Liaison office treated the PIR request pertaining to future
`immigration violation patrols as a litigation hold request.
`Lieutenant Culhane avows in her affidavit that she believes that the appropriate units
`within MCSO were instructed that, as they generated documents responsive to the request,
`they were to preserve those documents. She further testified, however, that she is not
`“knowledgeable about, or familiar with” the stat sheets prepared during the course of the
`immigration violation patrols, she “therefore does not know what they are or what they
`comprise.” She concludes, however, that “Legal Liaison’s instruction to MCSO units,
`including the HSU [Human Smuggling Unit], to keep and preserve documents relating to
`future saturation patrols would have been a general instruction and would not have
`specifically referred to or mentioned, ‘stat sheets’.”
`This litigation continued as did the special operations conducted by the MCSO.
`During the course of the litigation, formal discovery requests, and inquiries about responsive
`information were exchanged. Plaintiffs formally requested the above documents in a Rule
`34 document request on February 25, 2009. Among their other responses, Defendants
`provided eight individual stat sheets that had been prepared during the course of a January
`2008 special enforcement operation.
`On September 10, 2009, Plaintiffs again inquired as to the apparent lack of certain
`categories of documents in response to its previous requests. In the absence of any response,
`Plaintiffs again wrote Defendants inquiring about responsive documents on September 30
`and on October 20, 2009. The matter came up before the Court at the pretrial scheduling
`conference that occurred on October 21, 2009. At that time, Defense counsel indicated that
`Defendants had produced all responsive documents in their possession to the Plaintiffs.
`Six days later, Sergeant Manny Madrid a supervisor in the HSU, which directed and
`coordinated the illegal immigration suppression sweeps, was deposed. At that deposition
`Sergeant Madrid testified that he had never been told by anybody to preserve documents
`pertaining to illegal immigration suppression operations and, as a result had routinely
`shredded stat sheets he had received by officers participating in such operations. He had
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 5 of 13
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`done so as recently as several weeks earlier. Further, he testified that he deleted emails that
`were on his computer regarding such operations from his “deleted” and “sent” folders when
`he would receive notice that his allocated space on the hard drive was full.
`In conjunction with this motion, the other supervisors of the HSU, Lieutenant Joseph
`Sousa and Sergeant Brett Palmer, have submitted affidavits in which they aver that prior to
`November of 2009, they had never been informed that HSU must keep the stat sheets from
`the illegal immigration suppression operations, and that otherwise it would not have been
`their standard practice to do so once the data from the stat sheets was recorded on shift
`summaries for a particular operation.2 The parties have further submitted excerpts from the
`deposition of Lieutenant Sousa in which he testifies that he was not instructed until
`November 2009 that he was to save all emails regarding all immigration violation patrols.
` Prior to that time, he provided the emails that he had not purged when they were requested
`by the attorneys.
`
`When Sheriff Arpaio was deposed in mid-December he testified that he did not recall
`being instructed to retain or provide documents pertaining to the immigration enforcement
`activities of the MCSO. He indicated he did maintain an immigration file in his office that
`he had not yet provided in this litigation.
`ANALYSIS
`Plaintiffs request that the Court sanction Defendants for their destruction of
`documents. The Court has inherent power to impose such sanctions. Medical Laboratory
`Mgt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 (9th Cir.
`2002); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). Appropriate sanctions
`include any one or more of the following: (1) dismissing claims; (2) drawing adverse
`inferences about the contents of the documents destroyed; (3) excluding testimony and
`evidence; and (4) awarding fees and costs. Leon v. IDX Systems Corp., 464 F.3d 951, 958
`
`2Lieutenant Charles Siemens has similarly submitted an affidavit in which he testifies
`that the stat sheets that were used with HSU during his participation in its operations were
`not typically maintained.
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 6 of 13
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`(9th Cir. 2006); Glover, 6 F.3d at 1329; In re Napster, Inc. Copyright Litigation, 462 F.
`Supp. 2d 1060, 1070-78 (N.D.Cal. 2006).
`A party seeking sanctions based on the spoliation of evidence must demonstrate the
`presence of three elements: “(1) That the party having control over the evidence had an
`obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with
`a culpable state of mind and (3) that the destroyed evidence was relevant to the party’s claim
`or defense such that a reasonable trier of fact could find that it would support that claim or
`defense.” Napster, 462 F. Supp.2d at 1078; Zubulake v. UBS Warburg LLC, 229 F.R.D.
`422, 430 (S.D.N.Y. 2004); see also Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d
`Cir. 2001).
` I.
`The Legal Standard For Sanctions
`A.
`MCSO Has Destroyed Documents It Had An Obligation To Preserve.
`1.
`Stat Sheets
`Defendants concede that as of July 21, 2008, they had an obligation to preserve the
`individual “stat sheets” that were completed by MCSO deputies or volunteers during the
`special immigration enforcement operations that are the focus of Plaintiffs’ claims against
`Defendants. They further concede that they destroyed those “stat sheets” and that they are
`not recoverable. The first of the three elements has thus been established as it pertains to the
`“stat sheets” created or still in existence after July 21, 2008.
` “As soon as a potential claim is identified, a litigant is under a duty to preserve
`evidence which it knows or reasonably should know is relevant to the action.” Napster, 462
`F. Supp. 2d at 1067; see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.
`2003). Plaintiffs assert that given that law, Defendants were required to place a litigation
`hold on all relevant documents in their possession, including any stat sheets created during
`enforcement operations, immediately after receiving the initial class action complaint. While
`apparently agreeing that they were under an obligation to preserve documents relating to the
`complaint from the date it was originally filed, Defendants argue that the scope of the
`original complaint did not adequately put them on notice sufficiently to require the
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 7 of 13
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`preservation of the stat sheets. Thus, while they concede that they were under an obligation
`to preserve any stat sheets that they destroyed after July 21, 2008, they argue that they were
`under no obligation to preserve any stat sheets that may have been destroyed prior to that
`date.
`
`Email Communications
`2.
`Both Lieutenant Sousa and Sergeant Madrid testified that they had deleted emails
`from their work areas that pertained to the special immigration enforcement operations. They
`both testified that although they thoroughly responded to periodic requests for documents
`from attorneys and others during the course of this litigation that included their email
`communications, they had never been informed until November 2009 that they were to retain
`all of their communications pertaining to the special operations at issue. As a result, they
`deleted some of those communications up until they were informed in November of 2009 that
`they must not do so.
`At oral argument on this motion, Defendants detailed their ongoing efforts to recover
`any emails relating to the special operations at issue that may have been purged from the
`MCSO information management system, but presently available through any backup files
`or systems. Defendants acknowledge that electronic communications purged prior to
`October 31, 2009, are not recoverable. Nevertheless, depending upon the treatment of the
`email by the sender or the recipient, a purged communication may have been retained on the
`system and thus still be recoverable through the backup systems. Defendants acknowledge
`that they are in the process of examining a large number of documents recently obtained from
`the back-up systems of the MCSO, after the deletion of responsive documents became
`apparent. Defendants acknowledge that additional documents appear to exist, and will
`be provided to Plaintiffs as they are identified. They further cite the affidavits and
`depositions of Lieutenant Souza and Sergeant Madrid to assert, however, that after the
`recoverable electronic communications are provided, they do not believe that any
`communications of any substance relating to the special operations will have been withheld.
`Nevertheless, Defendants acknowledge that the MCSO purged email communications that
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 8 of 13
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`were responsive to both the July 21, 2008 letters and Plaintiffs document production requests,
`and they will not be able to affirmatively demonstrate that all such emails have been
`recovered or provided to Plaintiffs.
`3.
`Sheriff Arpaio’s Immigration File
`Defendants also acknowledge in response to Plaintiffs’ arguments that Sheriff Arpaio
`identified at his deposition that he kept an immigration file that had not been previously
`provided to the Plaintiffs, but that had been called for by their July 21, 2008 letter and in their
`subsequent discovery. Defendants avowed that they have now provided those documents to
`the Plaintiffs.
`B.
`MCSO’s Negligence is A Sufficient Basis on Which to Award Sanctions.
`A finding of fault or simple negligence is a sufficient basis on which a Court can
`impose sanctions against a party that has destroyed documents. Unigard Sec. Ins. Co. v.
`Lakewood Eng’g & Mfr’g Corp., 982 F.2d 363, 369 n.2 (9th Cir. 1992); Residential Funding
`Corp. v. De George Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) ( “A ‘culpable state of mind’
`for purposes of a spoliation inference includes ordinary negligence.”).
`In his affidavit, Deputy Chief MacIntyre insists that his oversight in failing to
`communicate the litigation hold within the MCSO was a good faith mistake. Although he
`does assert that he was under the press of many obligations, to his credit he does not assert
`that this excuses his failure to communicate the litigation hold. He sets forth in his affidavit
`his normal procedure in responding to litigation holds, and further sets forth that, after
`investigation, he does not believe that he followed that procedure in this case.
`The Court need not determine whether Deputy Chief MacIntyre acted in bad faith to
`determine that his conduct amounts to sufficient fault on the part of the MCSO to justify a
`sanction against it resulting from the destruction of relevant materials that was caused, in
`part, by that failure. Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557
`(N.D. Cal. 1987) (holding that “[i]t is no defense to suggest, as the defendant attempts, that
`particular employees were not on notice. To hold otherwise would permit an agency
`corporate officer or legal department to shield itself from discovery obligations by keeping
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 9 of 13
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`its employees ignorant.”); Cf. New Times v. Arpaio, 217 Ariz. 533, 541, 177 P.3d 275, 283
`(App. 2008) (holding that “[i]f public entities could be excused from providing public
`records merely be being inattentive to requests, then access to the records would be easily
`frustrated.”).
`Nor does the Court find that the affidavit of Lieutenant Culhane sufficient to defeat
`the imposition of sanctions. In her affidavit Lieutenant Culhane does not state that the
`litigation hold was communicated. She states that she believes that the Legal Liaison
`division followed its standard practice, and thus would have communicated the litigation
`hold. Nevertheless, in light of the deposition testimony of Lieutenant Sousa, Sergeant
`Madrid, and Sheriff Arpaio that they never received, or do not recall receiving, instructions
`to preserve documents and emails, the court finds that no litigation hold was communicated
`to them.
`Even if it was, Lieutenant Culhane’s affidavit suggests that it was “a general
`instruction,” and as such would have lacked the specificity necessary to communicate to
`MCSO divisions that they needed to retain their “stat sheets” pertaining to the special
`operations at issue here. Apparently if any instruction in fact took place it was so general
`that it failed to be memorable to Sheriff Arpaio, Lieutenant Sousa or Sergeant Madrid.
`Defendants provide no witnesses who testify to receiving instruction about a litigation hold.
`
`It is true that the documents requested by Plaintiffs’ counsel did not specifically
`mention “stat sheets.” Nevertheless, the description of the documents requested by Plaintiff
`was specific enough that if reasonably communicated, it would have resulted in the retention
`of the stat sheets. Further the description of documents sought specifically and explicitly
`asked for emails pertaining to the special operations. Yet the witnesses whose testimony was
`offered on this motion do not remember any MCSO communication directing them to
`preserve stat sheets or email communications until November 2009.
`Based on the above facts, the Court finds that no communication of the litigation hold
`was made within the MCSO, and that even if some such communication were made, it was
`not a sufficient communication to specify the content of documents subject to the hold. In
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 10 of 13
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`either case, the failure was, at a minimum, negligent and constitutes sufficient fault to justify
`the imposition of sanctions.
`C.
`The Destroyed Evidence Was Relevant To A Claim or Defense.
`At oral argument counsel for the Defendants acknowledged that in light of the
`testimony concerning a zero tolerance policy that may have been implemented by the MCSO
`in conducting its special operations, the individual stat sheets could have provided relevant
`information to a claim or defense. The Defendants further conceded that electronic
`communications within the MCSO pertaining to the special operations would be relevant and
`discoverable information. The Court concurs with this assessment.
`II.
`Sanction(s) and Their Appropriate Scope
`A.
` Stat Sheets In Existence Or Created After July 21, 2008.
`In this matter, it is uncontested that with a single exception3, the stat sheets either in
`existence or created after July 21, 2008 were destroyed and that the Defendants had an
`obligation to preserve and provide those stat sheets to Plaintiffs. The information contained
`on the individual stat sheets would have been relevant to the claims of Plaintiffs and/or
`defenses of Defendants. The Court has found at least negligence on the part of Defendants
`in failing to preserve those stat sheets. While the issue of whether Defendants acted in bad
`faith may be relevant to whether sanctions are imposed for the destruction of other
`documents, the Court need not determine whether Defendants acted in bad faith to determine
`that a sanction or sanctions is appropriate for the destruction of the stat sheets that existed on
`or after July 21, 2008.
`In a case in which the contents of documents can not be ascertained, Courts should
`“draw the strongest allowable inferences in favor of the aggrieved party.” Nat’l Ass’n of
`Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987). In this case,
`although the information the individual stat sheets would have provided is not ascertainable,
`
`3 Defendants did find and produce during the course of this litigation eight individual
`stat sheets from a January 2008 special operation.
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 11 of 13
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`the categories of information contained in the stat sheets is known. Therefore, while the fact
`finder may draw inferences about the contents of the destroyed stat sheets that are adverse
`to Defendants, those inferences are restricted to the types and categories of information that
`could have possibly been gleaned from the stat sheets. Because the stat sheets contained
`various categories of information that may be relevant to the claims and defenses of the
`parties, at the close of discovery Plaintiffs will file with the Court suggested possible
`inferences concerning the contents of the destroyed stat sheets. Defendants will be allowed
`to comment on the appropriateness of the proffered inferences before any specific inferences
`are authorized as a sanction.
`B.
`Email Communications
`Defendants admit that they have purged email communications that are related to the
`special operations. They further admit that for any period prior to October 31, 2009, they
`cannot recover documents that were purged from the system. Nevertheless, electronic
`documents that were separately saved by a user during the course of their existence on the
`system may be recovered from the system for dates prior to October 31, 2009. Defendants
`are now in the process of securing from their back-up systems all retrievable documents that
`may contain information sought by Plaintiffs. Plaintiffs argue that once they have completed
`this process few, if any, relevant documents will prove to be unrecoverable. Especially in
`light of the additional documents yet to be provided to Plaintiffs by Defendants, the Court
`is currently incapable, and may thereafter remain incapable, of ascertaining whether and what
`documents purged by Defendants have been retrieved and provided to Plaintiffs.
`Because appropriate sanctions must be tailored to the type and degree of document
`destruction, and the motives for that destruction, Chambers v. NASCO, Inc., 501 U.S. 32, 33
`(1991); Napster, 462 F.Supp.2d at 1078 (holding that the court must “impose the ‘least
`onerous sanction’ given the extent of the offending party’s fault and the prejudice to the
`opposing party”), the Court will not determine appropriate sanctions for the destruction of
`e-mail communication until Defendants have provided to Plaintiffs: (1) a description under
`oath of the steps Defendants have taken to recover all responsive communications from their
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`Case 2:07-cv-02513-GMS Document 261 Filed 02/12/10 Page 12 of 13
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`information management system and its back-ups; (2) a complete list of the new documents
`that have been recovered and the dates of the documents recovered; (3) the sources from
`which the additional documents were recovered; (4) the inherent limitations on Defendants
`search for documents that are imposed by Defendants document retention systems; and (5)
`the components in that system.
`If a summary affidavit or affidavits are filed under oath by Defendants’ counsel
`describing the retrieval process, he will identify with specificity his sources of information
`for those affidavits. Defendants will provide such documents and information to Plaintiffs
`by March 4, 2010. The parties will appear for a status hearing on March 19, 2010 at 9:30
`a.m. for the Court to determine the extent supplemental depositions will be authorized based
`either on the newly-provided documents or the adequacy of the process through which those
`newly-provided documents were obtained, and who will bear the cost of those depositions.
`C.
` Documents Destroyed Prior to July 21, 2008.
`The Court has read the initial complaint which seems to the court to be broad-based,
`the July 21, 2008 letter from Plaintiffs’ counsel, and the affidavits of Deputy Chief
`MacIntyre and Lieutenant Culhane concerning the steps they believe were taken, or not
`taken, to implement a litigation hold within the MCSO after July 21, 2008. Prior to
`determining whether the scope of the sanctions to be imposed in this matter should extend
`to the destruction of documents that occurred prior to July 21, 2008, however, the Court will
`evaluate the adequacy of the supplemental documents to be provided by Defendants to
`Plaintiffs as well as any evidence relating to the scope of any litigation hold actually
`implemented by Defendants after the initial complaint was filed, and any documents retained
`pursuant to that hold. These materials are to be provided to Plaintiffs by March 4, 2010.
`D.
`Sheriff Arpaio’s Immigration File
`Defendants have provided Sheriff Arpaio’s Immigration file that was responsive to
`their previous discovery requests and not provided prior to Sheriff Arpaio’s deposition.
`Pursuant to Fed. R.Civ. P. 37, and the Court’s inherent power, the Court orders that Plaintiffs
`may redepose Sheriff Arpaio concerning the newly-provided documents. Defendants will
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`pay the cost for the court reporter and will pay the reasonable costs incurred by one of
`Plaintiffs’ counsel to prepare for and take the deposition.
`Therefore, for the reasons stated above,
`IT IS HEREBY ORDERED granting Plaintiffs Motion for Sanctions (Dkt. # 227)
`to the extent that Defendants have destroyed stat sheets that were in existence or came into
`existence after July 21, 2008 with the appropriate adverse inference(s) to be drawn to be
`determined after discovery closes.
`IT IS FURTHER ORDERED that on or before March 4, 2010 Defendants shall
`provide to Plaintiffs: (1) a description under oath of the steps Defendants have taken to
`recover all responsive communications from their information management system and its
`back-ups; (2) a complete list of the new documents that have been recovered and the dates
`of the documents recovered; (3) the sources from which the additional documents were
`recovered; (4) the inherent limitations on Defendants search for documents that are imposed
`by Defendants document retention systems; (5) the components in that system; and (6) any
`evidence relating to the scope of any litigation hold actually implemented by Defendants
`after the initial complaint was filed, and any documents retained pursuant to that hold.
`IT IS FURTHER ORDERED setting a Status Conference on this matter with the
`parties on March 19, 2010 at 9:30 a.m. At the Status Conference the Court will determine
`what additional discovery is appropriate in light of the newly provided documents and
`materials, any appropriate limits on that additional discovery, and who will pay for it. The
`Court will also consider the outstanding Touhy motion at that time.
`IT IS FURTHER ORDERED that Plaintiffs may redepose Sheriff Arpaio
`concerning the contents of his immigration file not previously provided to Plaintiffs.
`Defendants will pay the cost for the court reporter and will pay the reasonable costs incurred
`by one of Plaintiffs’ counsel to prepare for and take the deposition.
`DATED this 11th day of February, 2010.
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