Case 2:07-cv-02513-GMS Document 1592 Filed 12/04/15 Page 1 of 6

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Greg S. Como (013187) Greg.Como@lewisbrisbois.com

M. Craig Murdy (011016) Craig.Murdy@lewisbrisbois.com
Dane A. Dodd (031084) Dane.Dodd@lewisbrisbois.com
LEWIS BRISBOIS BISGAARD & SMITH LLP
2929 North Central Avenue, Suite 1700
Phoenix, Arizona 85012-2761
Telephone: 602.385.1040
Facsimile: 602.385.1051
Firm email: azdocketing@lewisbrisbois.com
Attorneys for Brian Sands

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.,

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No. 07-cv-02513-PHX-GMS

Plaintiffs,
RESPONSE TO THE COURTS
NOVEMBER 18 ORDER [DOC. 1566]

vs.
Joseph M. Arpaio, in his individual and
office capacity as Sheriff of Maricopa
County, Arizona; et al.

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Defendants.

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Retired Executive Chief Brian Sands submits the following memorandum to

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address issues raised by the Court in its November 18, 2015 Order (Doc. 1566). Each

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numbered paragraph corresponds to the paragraph from the Order to which it is

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responding.
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1.

Chief Sands objects to the use of arguments and authorities that were not

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made in Plaintiffs briefing but instead raised for the first time at oral argument, at least

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insofar as they are considered against him. He does not object to their use against

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Defendants and the other alleged contemnors, who joined his motion the evening before
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closing arguments. (See Doc. 1569.) Should such arguments and authorities be considered

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against him, Chief Sands believes he should have the opportunity to respond to them after

having had adequate notice.

2.

Chief Sands does not object to the Courts reliance on filings submitted since

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the Courts Order to Show Cause on February 12, 2015, so long as they are considered for

an appropriate purpose. He does object to improper uses, such as considering as evidence

against Chief Sands representations made by other parties representatives for the truth of

the matters they assert. See Fed. R. Evid. 801 & 802. Chief Sands further objects to the
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use of filings or representations made at hearings before the Courts Order to Show Cause

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made him a party to these contempt proceedings. He has not been given notice of which

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representations, if any, are intended to be used against him as evidence, and thus has not

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had the opportunity to cross-examine the declarants on those representations, investigate

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their merit, or present explanatory evidence to place them in the appropriate context. He
has also not had the opportunity to determine their admissibility.
3.

Chief Sands takes no position on the issue of what basis, if any, there is for

continuing to hold the materials specified in paragraph 3 of the Order under seal.

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4.

Chief Sands takes no position on the procedure suggested by the Court

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regarding IA investigation reports. Nor does Chief Sands object to the use of the IA

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reports for the purposes of evaluating the adequacy of the MCSOs IA investigation

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process. However, in light some of the questions asked by the Court during closing

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arguments on November 20, 2015 (see Contempt Hrg Tr. 4729:17-23; 4729:1-2; 4729:4-

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7), particularly as to documents appearing to be memoranda by Lt. Joseph Sousa in regards

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to his name-clearing hearing, Chief Sands wants to ensure that the out-of-court assertions

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made in those and other IA investigation documents are not being considered as evidence

against Chief Sands for the truth of the matters they assert. He thus objects to their use for

such purposes pursuant to Fed. R. Evid. 801 and 802.

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5.

Chief Sands believes Plaintiffs, who bear the burden of proof, are more

appropriately positioned to identify testimony or exhibits which demonstrate the numbers

of persons that may have been impacted by the MCSOs violation of the Courts

preliminary injunction and the different ways in which they may have been impacted.
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6.

Chief Sands defers to Defendants and Plaintiffs to provide the information

requested by the Court in paragraph 6 of its November 18 Order.

7.

Chief Sands defers to Defendants and Plaintiffs to provide the information

requested by the Court in paragraph 7 of its November 18 Order.

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8.

Chief Sands defers to Defendants and Plaintiffs to provide the information

requested by the Court in paragraph 8 of its November 18 Order.

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Chief Sands defers to Defendants and Plaintiffs to provide the information

requested by the Court in paragraph 9 of its November 18 Order.

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10.

Chief Sands believes paragraph 10 of the Courts November 18 Order does

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not concern the alleged grounds for contempt against him, and thus defers to other parties

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to provide the requested information.

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11.

Chief Sands objects to negative inferences being drawn against him for

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Defendants failure to preserve evidence. An adverse inference for the destruction of

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evidence may not be drawn against a party that has not destroyed evidence and is not

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responsible for the loss of evidence. Lundquist v. United States, 1997 U.S. App. LEXIS

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16204, *6 (9th Cir. 1997) (holding the district court erred in drawing an adverse inference

against a defendant that neither destroyed the [evidence] nor was responsible for their

loss.). There is no evidence that Chief Sands destroyed evidence or that he was
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responsible for handling MCSOs response to document preservation letters and discovery

requests. In fact, the evidence shows otherwise. See, e.g., Aff. Jack MacIntyre, Dec. 10,

2009 (Doc. 839-2).

The use of adverse inference must be justified by one of the rationales for their use:
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(1) The evidentiary rationale: The evidentiary rationale is nothing more

than the common sense observation that a party who has notice that
a document is relevant to litigation and who proceeds to destroy the
document is more likely to have been threatened by the document
than is a party in the same position who does not destroy the
document.
(2) The deterrence rationale: The other rationale [] for the inference has
to do with its prophylactic and punitive effects. Allowing the trier of
fact to draw the inference presumably deters parties from destroying
relevant evidence before it can be introduced at trial.

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Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991). The Ninth Circuit held that the
trial courts adverse inferences were drawn in error where neither rationale applied. Id.
The evidentiary rationale does not support an adverse inference against Chief Sands
for the same reasons it did not in Akiona. Just as in that case nothing in the record

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indicate[d] that the [defendant] destroyed the [relevant evidence] in response to [the

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Akiona] litigation, id., nothing in the record here indicates that Chief Sands destroyed

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relevant evidence in response to the Melendres litigation, or even at all. The evidence was

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not threatening to Chief Sands, as he was not a party to the underlying action and was not

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subject to any discovery requirements.

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Likewise, the deterrence rationale does not support an adverse inference against
Chief Sands. Punishing a person for a failure for which he was not responsible would not

further any sort of deterrent purpose, particularly when applied to a separate claim against
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a separate party years after the entry of a final judgment on the merits.
12.

Chief Sands believes paragraph 12 of the Courts November 18 Order does

not concern the alleged grounds for contempt against him, and thus defers to other parties

to provide the requested information.

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13.

Chief Sands believes paragraph 13 of the Courts November 18 Order does

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not concern the alleged grounds for contempt against him, and thus defers to other parties

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to provide the requested information.

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14.

Chief Sands believes paragraph 14 of the Courts November 18 Order does

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not concern the alleged grounds for contempt against him, and thus defers to other parties
to provide the requested information.
15.

Chief Sands believes paragraph 15 of the Courts November 18 Order does

not concern the alleged grounds for contempt against him, and thus defers to other parties

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to provide the requested information.

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RESPECTFULLY SUBMITTED December 4, 2015.

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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By/s/ M. Craig Murdy

M. Craig Murdy
Dane A. Dodd
Attorneys for Brian Sands

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CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2015, I electronically transmitted the foregoing

RESPONSE TO THE COURTS NOVEMBER 18 ORDER [DOC. 1566] to the
Clerks office using the Courts CM/ECF System, and thereby served all counsel of record
in this matter.

/s/

Dane A. Dodd

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