Opinion
No. CV-19-04532-PHX-ROS
2022-09-12
Earl Felton CRAGO, Jr., Plaintiff, v. Joseph PITZ, et al., Defendants.
Andrea J. Driggs, Christopher David Thomas, Janet Marie Howe, Kelleen Mull, Luci Danielle Davis, Paul F. Eckstein, Perkins Coie LLP, Phoenix, AZ, Cara V. Wallace, Pro Hac Vice, Thomas J. Tobin, Pro Hac Vice, Perkins Coie LLP, Seattle, WA, for Plaintiff. Kathleen L. Wieneke, Jacob Alan Weld, Laura Anne Van Buren, Wieneke Law Group PLC, Tempe, AZ, Patrick Joseph Boyle, Office of the Attorney General, Phoenix, AZ, for Defendants Joseph Pitz, Berry Larson, Charles L. Ryan. Kathleen L. Wieneke, Jacob Alan Weld, Laura Anne Van Buren, Wieneke Law Group PLC, Tempe, AZ, for Defendants Ernie Trujillo, David Shinn.
Andrea J. Driggs, Christopher David Thomas, Janet Marie Howe, Kelleen Mull, Luci Danielle Davis, Paul F. Eckstein, Perkins Coie LLP, Phoenix, AZ, Cara V. Wallace, Pro Hac Vice, Thomas J. Tobin, Pro Hac Vice, Perkins Coie LLP, Seattle, WA, for Plaintiff. Kathleen L. Wieneke, Jacob Alan Weld, Laura Anne Van Buren, Wieneke Law Group PLC, Tempe, AZ, Patrick Joseph Boyle, Office of the Attorney General, Phoenix, AZ, for Defendants Joseph Pitz, Berry Larson, Charles L. Ryan. Kathleen L. Wieneke, Jacob Alan Weld, Laura Anne Van Buren, Wieneke Law Group PLC, Tempe, AZ, for Defendants Ernie Trujillo, David Shinn.
ORDER
Roslyn O. Silver, Senior United States District Judge
The parties have filed additional documents regarding three evidentiary disputes.
I. Report to the Governor
Plaintiff filed a supplemental brief regarding the admissibility of the "Report to the Governor: The Effectiveness of the Lock at Lewis Prison." (Doc. 298). That brief argues the report is a public record under Federal Rule of Evidence 803(8), or the report is admissible as an "adoptive statement" under Rule 801(d)(2)(B), or the report is admissible under the residual hearsay exception in Rule 807. Defendants oppose admission under all three options. The Court continues to believe the report does not qualify as a public record for purposes of Rule 803(8). Therefore, the Court will focus on the remaining proffered bases for admission.
Shortly after the report was issued, the Department of Corrections issued a statement to the media that provided, in full:
The Arizona Department of Corrections greatly appreciates the work of Justices McGregor and Berch and the findings and recommendations they have put forward in this report.
Their report provides a thorough and fair assessment of the facts relating to locking system issues at the Lewis prison and the contributing operational challenges within the Department.
The Department supports the recommendations put forward by the justices, and will work diligently to adopt and implement them. We look forward to continuing to work with the Governor's Office, the Department of Administration, State Legislators, the Public Safety Task Force, stakeholders and more in this effort.
In recent months, the Department has already begun taking steps to address many of the issues identified in the report. These include implementing enhanced
training for officers, improving communication among all personnel and identifying a locking system replacement project for Lewis prison. We are grateful for the Joint Committee on Capital Review's approval for Phase 1 of this project, which remains on track to meet the milestones provided to that committee.
Ensuring safety and security is the Department's mission and highest priority. We remain fully committed to continuous improvement in order to ensure a safer environment for employees and inmates.
Available at https://www.abc15.com/news/local-news/investigations/final-report-set-to-be-released-after-abc15-exposed-broken-locks-inside-arizonas-lewis-prison#:~:text=The%20Arizona%20Department,employees%20and%20inmates
At the time this statement was issued, Defendant Ryan was the Director of the Department of Corrections. Thus, Defendant Ryan himself adopted the report such that it is admissible under Rule 801(d)(2)(B). Pursuant to that rule, "when a party acts in conformity with the contents of a document . . . such an action constitutes an adoption of the statements contained therein even if the party never reviewed the document's contents." Transbay Auto Serv., Inc. v. Chevron USA Inc., 807 F.3d 1113, 1120 (9th Cir. 2015). Explicitly stating the report was "thorough and fair" and that the Department would work "diligently to adopt and implement" both the Department of Corrections and Defendant Ryan adopted the report.
The report is also admissible under Rule 807. That rule "exists to provide judges a 'fair degree of latitude' and 'flexibility' to admit statements that would otherwise be hearsay." United States v. Bonds, 608 F.3d 495, 501 (9th Cir. 2010). The requirements of Rule 807 are met here. The report "is supported by sufficient guarantees of trustworthiness." Fed. R. Evid. 807(a)(1). As noted, the Department of Corrections itself viewed it as trustworthy. In addition, the report "is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." Fed. R. Evid. 807(a)(2). It would have been impossible for Plaintiff, an incarcerated litigant proceeding without counsel, to gather the records and conduct the interviews reflected by the report. Similarly, it would not be possible for Plaintiff to call all of the individuals interviewed for the report and for Plaintiff to admit into evidence all of the documentation on which the report relies. Defendants argue Plaintiff should be required to do so and the possibility that he cannot "is a problem of [his] own making." (Doc. 304 at 10). Defendants overlook that Rule 807 requires only that the report by more probative than the other evidence that can be obtained through "reasonable efforts." The report qualifies for admission under Rule 807.
On August 29, 2022, Plaintiff provided notice to defense counsel that he may rely on Rule 807. (Doc. 298-1 at 4). In the circumstances of this case, where Defendants have always been aware of Plaintiff's reliance on the report, that was adequate notice. The report is admissible under Rule 807.
II. Ex Parte Communications with Former Employees
Plaintiff filed a supplemental brief regarding Plaintiff's ex parte communications with Shaun Holland and Mark Hasz. (Doc. 299). Holland and Hasz were employees of the Arizona Department of Corrections, working at the Lewis prison, during the period Plaintiff was housed in the Buckley unit. Holland and Hasz have first-hand knowledge regarding the conditions there but neither Holland nor Hasz was ever named as a defendant in this case. Holland and Hasz were terminated in November 2020 and are currently suing the state of Arizona in connection with their terminations. (CV-22-667, Doc. 1-3 at 9).
Plaintiff's counsel recently had ex parte communications with Holland and Hasz. According to Defendants, that contact was prohibited by the governing ethical rule, as that rule has been interpreted by the Arizona Court of Appeals. That interpretation is not binding here.
Pursuant to Local Rule 83.2(e), "The 'Rules of Professional Conduct,' in the Rules of the Supreme Court of the State of Arizona, shall apply to attorneys . . . authorized to practice before" this court. Thus, Arizona Rule of Professional Conduct 4.2 presumptively applies in this case. That rule states, in full:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.There is an accompanying comment to Rule 4.2 that addresses the situation when a represented party is an organization. That comment states:
In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.ER 4.2 (comment 2). Neither Rule 4.2 nor the comment specifically address contact with former employees of a represented party.
In Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (Ariz. Ct. App. 1992), the Arizona Court of Appeals addressed the reach of Rule 4.2 and its accompanying comment in the context of former employees. According to Lang, Rule 4.2 and its comment permit limited ex parte contact between counsel and a represented party's former employees. The relevant portion of the standard established in Lang is that Rule 4.2 and its comment do "not bar counsel from having ex parte contacts with a former employee of an opposing party where the former employer is represented by counsel unless the acts or omissions of the former employee gave rise to the underlying litigation." Id. at 1233 (emphasis in original). Unfortunately, Lang does not provide a coherent explanation for this result.
According to Lang, "neither [Rule 4.2] nor its comments specifically mention former employees. Had the rule been intended to cover former employees, it could have explicitly said so." Id. Thus, Lang initially concludes former employees are not covered by Rule 4.2 at all. But Lang then states Rule 4.2 "does not ban all ex parte contacts, but only those with individuals listed in the comments." Id. Lang does not identify the portion of Rule 4.2 that incorporates the individuals allegedly listed in the comments. Assuming such incorporation was intended, Lang then interprets the comment as prohibiting "ex parte contacts with persons whose acts or omissions in connection with the matter may be imputed to the organization." Id. Because the actions of a former employee might be imputed to his former employer, Lang concludes ex parte contact with a former employee is not allowed when "the acts or omissions of the former employee gave rise to the underlying litigation." Id. There is no simple way to reconcile Lang's starting position that neither the text of Rule 4.2 nor its accompanying comment was intended to cover former employees with the conclusion that Rule 4.2 prohibits contact with certain former employees.
Given the difficulty in understanding the basis for Lang's conclusion, it is not clear what weight the Court should give Lang. The Court's Local Rule 83.2 imposes a general presumption that counsel will conform their conduct to Arizona's Rule 4.2. It does not follow, however, that such a presumption also requires counsel abide by the comment to Rule 4.2. Nor does it seem obvious that, as a matter of conduct in federal court, counsel must abide by the interpretation given to Rule 4.2 and its comment by Arizona courts. Regulating attorney conduct in federal court is a federal matter, beyond direct regulation by state courts. See In re Kramer, 193 F.3d 1131, 1132 (9th Cir. 1999) ("[A] state court's disciplinary action is not conclusively binding on federal courts."). Thus, even accepting the District of Arizona's local rule incorporates the text of Rule 4.2, it would not be appropriate to defer blindly to state court interpretation regarding the reach of Rule 4.2. In other words, for purposes of proceedings in federal court, it is the text of Rule 4.2 that applies, not commentary or interpretations of Rule 4.2.
In fact, the Local Rule imposing the Arizona Rules of Professional Conduct might be suspended "upon the Court's own motion" if there is a sufficient basis for doing so. Local Rule 83.6.
While Lang is not binding here, the Court will assume Lang applies for present purposes. See Hidalgo Lopez v. CoreCivic, No. CV-19-04332-PHX-ROS, 2021 WL 5850871, at *4 (D. Ariz. Dec. 9, 2021) ("Following the parties' lead, the Court will assume the rule established in Lang applies in federal court."). Under that assumption, Plaintiff's counsel could have "ex parte contacts with a former employee . . . unless the acts or omissions of the former employee gave rise to the underlying litigation." Lang, 826 P.2d at 1233. Here, the "acts or omissions" of Holland or Hasz did not give rise to the present case. In contrast, the "acts or omissions" of the former employees were crucial aspects of the suits where the Court imposed sanctions. See Hidalgo Lopez v. CoreCivic, No. CV-19-04332-PHX-ROS, 2021 WL 5850871, at *4 (D. Ariz. Dec. 9, 2021); Merck v. Swift Transportation Co., No. CV-16-01103-PHX-ROS, 2018 WL 3774007, at *2 (D. Ariz. July 19, 2018). Therefore, contact with Holland and Hasz did not violate the restrictions established in Lang.
Judge Campbell reached this same conclusion when current defense counsel made the identical argument to him in 2021. In that case, Judge Campbell stated "[t]here are no facts in this record suggesting that Holland's acts or omissions gave rise to the present claims against [the defendants in that suit]. As a result, it was not impermissible for counsel to have contact with Holland." McMormick v. Arizona, 19-4425-PHX-DGC (Nov. 29, 2021). As in McMormick, the restrictions set forth in Lang did not prohibit the ex parte contact in this case.
Defense counsel argue they had privileged conversations with Holland and Hasz in connection with the McCormick matter. (Doc. 309-2 at 3). Defense counsel may object, if appropriate, should Plaintiff attempt to elicit privileged information regarding those communications. But Holland and Hasz may testify regarding their own knowledge of the underlying facts. See Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ("[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.").
Finally, even if the Court were to conclude the ex parte contacts with Holland and Hasz were prohibited by Lang, no sanction would be appropriate. Defendants argue they were "denied any contact" with Holland and Hasz while Plaintiff's counsel were permitted contact. (Doc. 309 at 10). Thus, Defendants argue "[f]airness dictates that these witnesses be excluded." (Doc. 309 at 11). Defendants have not identified any prejudice they suffered because of the limited contacts Plaintiff's counsel had with Holland and Hasz. If Defendants believed information from Holland and Hasz was vital, they could have taken their depositions. Defendants chose not to do so. Thus, any perceived violation of the restrictions in Lang merits no remedy.
III. Arrest of Defendant Charles Ryan
Defendants seek to prevent Plaintiff from "eliciting any testimony or introducing evidence related to an arrest of Defendant Ryan on January 6, 2022." (Doc. 302 at 1). Plaintiff concedes he will not use attempt to use the arrest as "impeachment evidence." (Doc. 308 at 2). However, Plaintiff argues it is possible the arrest could become relevant based "on the scope of [Ryan's] direct examination testimony." (Doc. 308 at 2). At present, it appears unlikely Plaintiff will be entitled to reference the arrest. However, Plaintiff is correct that Ryan's testimony might render the arrest relevant. Based on the understanding Plaintiff will not refer to the arrest absent developments during Ryan's direct testimony, the motion in limine will be denied without prejudice to raising specific objections at trial.
Accordingly,
IT IS ORDERED the Supplemental Brief (Doc. 298) is GRANTED to the extent the Report to Governor is admissible.
IT IS FURTHER ORDERED the Supplemental Brief (Doc. 299) is GRANTED. The ex parte contact with Holland and Hasz was permissible.
IT IS FURTHER ORDERED the Motion in Limine (Doc. 302) is DENIED WITHOUT PREJUDICE.