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Merritt v. State

United States District Court, D. Arizona

August 6, 2018

Leslie A Merritt, Jr., Plaintiff,
v.
State of Arizona, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge.

         This action arises out of Plaintiff's arrest, indictment, and pre-trial incarceration for the much-publicized Interstate-10 freeway shootings. Plaintiff asserts multiple claims for relief, including false arrest, false imprisonment, malicious prosecution, negligence, and intentional infliction of emotional distress. Doc. 8. Defendants include both state-and county-level entities and persons.

         Plaintiff moves to compel document production and deposition testimony from Defendants Maricopa County and Maricopa County Attorney William Montgomery, and from several deputy county attorneys who were involved in the criminal case. The parties placed a joint conference call to the Court regarding this issue on June 1, 2018. Doc. 103. After hearing the parties' positions, the Court directed them to file memoranda on work product and privilege issues, which they did. Docs. 113, 119. Finding the memoranda insufficient to resolve the issues, the Court ordered the parties to file additional memoranda addressing specific topics. Doc. 121. The parties have provided the additional briefing. Docs. 126, 130. After reviewing them carefully, and for the reasons that follow, the Court will deny Plaintiff's motion to compel.

         I. Information Sought.

         Plaintiff's original memorandum sought information regarding (1) the use of license-plate readers during the criminal investigation, (2) the use of a honeypot website to identify suspects, and (3) the delayed disclosure of an exculpatory witness statement. Doc. 113 at 2-3. In the order that followed, the Court explained the deficiency of these general topics:

Plaintiff provides no detail concerning the documents he seeks or the questions he wants to ask in the upcoming depositions, nor does he provide the privilege log he is attacking. He identifies three broad issues, but provides no more specificity. Privilege and work product issues generally must be decided on a document-specific or question-specific basis. Although that level of detail may not be necessary here, the Court needs more than a general assertion that discovery should be permitted on three broad issues.

         Doc. 121.

         Plaintiff's supplemental memorandum identifies six categories of information. Doc. 126 at 2-3. He seeks to depose Defendant Montgomery and two former deputy county attorneys about the following subjects:

i) Basis for Montgomery's Press Conference Statements. The facts available to Montgomery at the time of his public statements about Plaintiff.
ii) Basis for Mental Impressions of [DPS criminalist] Kalkowski. The knowledge, consideration, and internal communications about prosecutors' mental impressions on subjects they have disclosed involving Kalkowski.
iii) Communications with DPS[.] All communications with DPS employees involving the transmittal and disclosure of evidence.
iv) Pre-Arrest Intra-Office Communications. Communications between Montgomery and other DCA's about the decision to arrest Plaintiff.

         Doc. 126 at 2-3 (emphasis in original).

         Plaintiff also seeks production of the following documents:

v) Documents Available to Montgomery. Communications that comprise the totality of circumstances known to Montgomery in dismissing the ...

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