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Flake v. Arpaio

United States District Court, D. Arizona

August 2, 2016

Austin Flake and Logan Flake, husband and wife, Plaintiffs,
Joseph Michael Arpaio, in his official capacity as Sheriff of the Maricopa County Sheriff’s Office, and in his personal capacity along with his wife Ava J. Arpaio; Maricopa County, by and through the Maricopa County Board of Supervisors Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo, in their official capacities, Defendants.


          Neil V. Wake Senior United States District Judge

         Defendant Sheriff Joseph Arpaio seeks to prevent Plaintiffs Austin and Logan Flake from disseminating copies of his deposition in this matter. (Doc. 80.) For the reasons that follow, the request for a protective order will be denied.

         I. BACKGROUND

         In June 2014, Austin and Logan Flake spent a week house-sitting for Logan’s parents in Gilbert, Arizona. Their duties included tending to a dog kennel that Logan’s parents operated out of their home. One night, the air conditioning system that cooled the kennel failed, causing the dogs to die from heat stroke.

         Days later, Maricopa County Sheriff Arpaio issued a press release describing himself as “aggressive” on animal abuse and promising a “full investigation” in which “no stone will go unturned.” (Doc. 91-1 at 2.) The press release identified Austin and Logan Flake by name and described their account of the incident as “highly suspect.” (Id. at 2-3.) Later that week, Sheriff Arpaio issued another press release stating his plans to attend a vigil for the dogs. (Id. at 5-6.) Weeks later, Sheriff Arpaio issued another press release describing his ongoing investigation and mentioning that the Flakes “would not return detective phone calls” and “refused to answer any questions.” (Id. at 8-9.)

         At the conclusion of his investigation, Sheriff Arpaio held a press conference and publicly recommended that the Flakes be charged with felony and misdemeanor counts of animal cruelty. (Id. at 14-19.) In October 2014, the County Attorney’s Office presented the case to a grand jury, which issued an indictment. In December 2014, however, the County Attorney’s Office voluntarily dismissed the case. Despite the dismissal, Sheriff Arpaio issued another press release assuring readers that the “case is far from over” and that “justice will be served.” (Id. at 11.) He also issued a videotaped message online, stating that he “anticipate[s] the charges will be re-filed” and that “justice will be done.” (Doc. 91-4 at 2.)

         In June 2015, the Flakes sued Sheriff Arpaio for malicious prosecution and related counts. (Doc. 1.) They claim that Sheriff Arpaio had no probable cause to recommend criminal charges and that the reason he did it was to garner publicity and smear Logan Flake’s father, Senator Jeff Flake. (Doc. 61.)

         On June 20, 2016, the Flakes served a notice scheduling Sheriff Arpaio’s deposition for July 14. No press coverage followed. On July 11, three days before the deposition, the Flakes served an amended notice specifying that the deposition would be videotaped. Substantial press and social media coverage immediately followed. For example, on July 12 The Arizona Republic featured an online article entitled “Did Arpaio set up Sen. Jeff Flake’s son in Green Acre case?” (Doc. 91-4 at 4.) The article describes the “heart of the question” in this lawsuit as whether Sheriff Arpaio’s investigators “intentionally lied” to a grand jury or “simply did not know what they were talking about.” (Id. at 7.) The article also identifies the date of Sheriff Arpaio’s deposition and states: “That’s one deposition that voters - the people who regularly pay for Arpaio’s screw-ups - should see as they consider whether to re-elect him.” (Id. at 5.)

         Sheriff Arpaio asked the Flakes to agree not to release his deposition to the press. The Flakes refused. Accordingly, the parties presented the Court with a “Joint Statement of Discovery Dispute Concerning Use and Distribution of Deposition Testimony.” (Doc. 80.) Essentially, Sheriff Arpaio seeks a protective order prohibiting the release of his deposition to the press and other interested persons.[1]

         The parties briefed the issue. Sheriff Arpaio’s brief invokes the Court’s power to issue protective orders under Federal Rule of Civil Procedure 26(c) and argues that a protective order here would not offend the First Amendment or the public’s common law right to access judicial records. (Doc. 90.) The Flakes’ brief argues that there is no good cause for a protective order and that public interest in Sheriff Arpaio’s deposition outweighs any private harm in disseminating it. (Doc. 91.)[2]

         At oral argument, the Court issued its decision in open court. This order documents and explains that decision.

         II. ANALYSIS

         Under Rule 26(c), the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). This rule “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

         The protective order sought here would prohibit the release of a prominent public official’s deposition in a civil case. That kind of prohibition raises issues of First Amendment rights, the public’s common law right to access judicial records, and the proper interpretation of the Federal Rules of Civil Procedure. The parties conflate these ...

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