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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man, 

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

PLAINTIFF’S MEMORANDUM RE: 

DISCOVERY DISPUTE

Plaintiff, Leslie Merritt, Jr., through counsel undersigned, submits the 

following memorandum to address the four subjects raised in the Court’s Order 

(Doc. 175).

I. MCAO’S DISCLOSURE OF THE PROSECUTORS' MEMORANDUM 

WAIVES THE ASSERTED WORK PRODUCT PRIVILEGE.

On July 28, 2017, all parties became aware, through a privilege log disclosed 

with the State of Arizona’s 8th Supplement Disclosure Statement, that the State 

Case 2:17-cv-04540-DGC Document 177 Filed 09/28/18 Page 1 of 8
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possessed a memorandum authored by the two Maricopa County Deputy County 

Attorneys assigned to prosecute Plaintiff, Ed Leiter and Vanessa Losicco, and 

addressed to Chief Deputy County Attorney Mark Faull. See Exhibit 1, attached. 

Entitled “Status of the I-10 Shooter Case”, the memorandum, dated June 28, 

2016, was written over two months after prosecutors moved to dismiss the criminal 

charges against Plaintiff and provides a comprehensive overview of the prosecutors' 

interpretation of the evidence. The memorandum was disclosed without objection 

from counsel for the Maricopa County Defendants and was used as an exhibit in the 

deposition of Defendant William Montgomery.

The memorandum describes the “weakness in the ballistic evidence"

provided by the DPS crime lab and characterizes the criminal case against Plaintiff 

as solely "circumstantial." It also discusses how cell (phone) tower analysis 

conducted by the FBI “unfortunately” corroborated Plaintiff’s alibi and how two 

renowned independent ballistic experts hired by the prosecution disagreed with the 

conclusions of the DPS lab.

The memorandum also revisits the testing conducted by the DPS crime lab, 

post-dismissal, hoping to bolster its initial position and reincarnate the criminal case 

against Plaintiff. Some of this “scientific” testing was “unofficial” and intentionally not 

documented. Other aspects of the testing involved a DPS criminalist consuming and 

destroying evidence seized in a 2015 search warrant of Plaintiff’s home (that was 

still in the possession of DPS), even though she never obtained the permission from 

Plaintiff or a court.

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The Maricopa County Defendants waived any work product privilege 

regarding the subjects contained in the memo when they provided it to the State of 

Arizona as no attorney-client relationship exists between the County Attorney’s 

Office and DPS. See, e.g. Tennison v. City & Cnty. Of San Francisco, 226 F.R.D. 

615, 620 (N.D. Cal 2005); Amili v. City of Tukwila, 2014 WL 3404572 *2 (WD. 

Washington, 2014). Absent such a relationship, the disclosure of work product by 

Maricopa County to the State waives any protection regarding other documents on 

the same subject. Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010). 

And “privilege may be waived by the client either implicitly, by placing privileged 

matters in controversy, or explicitly, by turning over privileged documents [to a third 

party].” Stevens v. Brigham Young University-Idaho, 2018 U.S. Dist. LEXIS 31271* 

8, 2018 WL 2974388 (D. Idaho, Feb. 23, 2018) (citing Gomez v. Vernon, 255 F.3d 

1118, 1131 (9th Cir. 2001)). The specific subjects of the waiver are listed in Exhibit 

2. 

II. PLAINTIFF REQUESTS THAT THE COURT ENFORCE ITS 

PREVIOUS ORDER

The Court's previous Order cautioned that “[the Court] will not be inclined to 

permit witnesses at trial to testify on subjects as to which they asserted an immunity 

or privilege during discovery ....” (Doc. 152). All the Maricopa County witnesses 

(including Leiter, Losicco, Manning, Montgomery, and Leckrone) refused to answer 

questions at deposition based on assertions of privileges and immunities. The 

subjects of the asserted immunity or privilege are included in Exhibit 3. Plaintiff 

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now seeks an Order, in limine, that the witnesses may not testify or offer any 

evidence about the subjects listed in Exhibit 3.

An order in limine is appropriate not only because Defendants were advised 

of the consequences of their choices by the Court's earlier Order, but also because

of the overly broad scope and manner of their refusal to answer questions makes

an alternative remedy impracticable. Witnesses Leiter, Losicco, and Leckrone 

refused to answer questions not only on subjects identified in Exhibit 3, but also 

questions needed to establish the factual predicate for evaluating their assertion of 

privilege or immunity. Representative pages of the transcript from the deposition of 

Edward Leiter are attached as Exhibit 4.

The alternative remedy of seeking to contest the merits of every claimed 

objection, and then seeking leave to re-depose the witnesses is impractical. This 

endeavor would likely cause a months-long delay and would interfere with existing 

deadlines. It would also require new expert disclosure deadlines and may change 

the opinion of Plaintiff’s expert about prosecutorial conduct.

III. THE CLAIM OF ONGOING INVESTIGATIVE PRIVILEGE IS 

INAPPROPRIATE

Defendant Hunter was instructed by counsel not to answer various questions 

at deposition based upon an assertion of the “ongoing investigative privilege.” A 

party asserting the privilege must (1) assert a formal claim of privilege by the head 

of the department with control over the requested information; (2) that the assertion 

of the privilege must be based on personal consideration by that official; and (3) the 

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information for which the privilege is claimed must be specified with an explanation 

as to why it falls within the scope of the privilege. See Conan v. City of Fontana, 

2017 U.S. Dist. LEXIS 103780, 2017 WL 2874623 (C.D. Cal. July 5, 2017).

The State Defendants fail to meet their burden. They have submitted only a 

vague declaration by Hunter on March 27, 2017, to support their assertion that the 

privilege applies. See Exhibit 5. The Declaration states that the investigation 

remains “open and ongoing,” but omits all the factors necessary to justify the 

privilege. The declaration is not from the head of the department who has personally 

considered the assertion of privilege, nor has it explained specifically why the 

privilege covers the information. Importantly, the declaration also fails to assert that 

Plaintiff remains a suspect. Hunter lacked personal knowledge of the contents of 

the Declaration. He testified that his counsel “sent it over to [him] and [he] signed 

it.” See Exhibit 6. 

Hunter offered broad and imprecise statements on how disclosure of ongoing 

investigative materials could undermine the putative ongoing investigation, claiming 

that disclosure could make known the surveillance techniques utilized by DPS and 

compromise the identity of DPS personnel. He makes no argument, though, that 

existing Protective Order (Doc. 54) cannot safeguard this information. Indeed, "the 

indiscriminate claim of privilege may in itself be sufficient reason to deny it.” United 

States v. O'Neill, 619 F.2d 222, 227 (3rd Cir. 1980). Moreover, "[b]road allegations 

of harm, unsubstantiated by specific examples or articulated reasoning, do not 

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satisfy the Rule 26(c) test." Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 

(9th Cir. 1992) (citations omitted).

Another consideration weighing against the privilege is that the criminal 

charges against Plaintiff were dismissed in state court nearly 2 1⁄2 years ago. See

Exhibit 7. The Fifth Circuit noted that “while pendency of a criminal investigation is 

a reason for denying discovery of investigation reports, the privilege would not apply 

indefinitely.” Swanner v. United States, 406 F.2d 716, 719 (5th Cir. 1969). 

In Youngblood v. Gates, 112 F.R.D. 342 (C.D. Cal. 1985), the district court 

noted that “[i]f the files of ongoing investigations are not absolutely privileged, even 

less are they privileged when the investigation is completed.” Id. at 346. In 

Youngblood, a nearly three-year investigation of plaintiffs failed to lead to an 

indictment. Materials presented for an in camera inspection1failed to prove that the 

investigation was ongoing, nor did defendants show, or even contend, there was a 

likelihood that plaintiffs would have criminal charges brought against them because

of the investigation conducted to date. 

Here, numerous witnesses have testified that the investigation of Plaintiff is 

defunct; thus, Defendants cannot establish an ongoing investigative privilege to 

justify the withholding of disclosure. Hunter should be compelled to answer all 

questions, and the State should be ordered to produce all documents to Plaintiff to 

facilitate a meaningful deposition of Hunter. 

 

1 Plaintiff would not oppose an in camera inspection if requested by the Court.

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IV. MACIULLA’S REFUSAL TO ANSWER DEPOSITION QUESTIONS

On September 7, 2018, during the deposition of DPS firearms examiner John 

Maciulla, he refused to identify what documents he reviewed to prepare for the 

deposition. Taking his counsel’s advice, he refused to answer based on attorneyclient and work product privileges. Counsel for the State has asserted that the 

documents which Maciulla reviewed have been disclosed. 

In Labertew v. Chartis Prop. Cas. Co., 2018 U.S. Dist. LEXIS 65812 (CV-13-

1785-PHX-DGC, April 19, 2018), this Court rejected the assertion that a 30(b)(6) 

witness’ review of an unredacted and undisclosed claim file constituted a waiver of 

the attorney-client privilege that otherwise applied to the file. Here, as counsel for 

the State clarifies, the materials reviewed by Maciulla have been disclosed. No 

privilege, therefore, applies.2

Plaintiff seeks attorneys’ fees and costs associated with the deposition.

DATED THIS 28th day of September, 2018.

LAW OFFICE OF JASON LAMM

By: /s/ Jason D. Lamm

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/ David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

 

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It merits mention that until Maciulla’s deposition, the same generic question has 

been answered by every other deponent without objection.

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CERTIFICATE OF SERVICE 

I hereby certify that on this September 28, 2018, I electronically transmitted 

the foregoing document, and any attachment(s) to the Clerk’s Office using the 

CM/ECF system for filing and caused the transmittal of a Notice of Electronic 

Filing to all CM/ECF registrants in his matter.

By: /s/ Kathryn A. Miller

Kathryn A. Miller

Case 2:17-cv-04540-DGC Document 177 Filed 09/28/18 Page 8 of 8