DISTRICT JUDGE'S CIVIL MINUTES

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA – PHOENIX

U.S. District Judge: David G. Campbell

Case Number: CV-17-04540-PHX-DGC

Date: October 9, 2020 

Merritt v. Arizona, State of et al

APPEARANCES: Plaintiff(s) Counsel Defendant(s) Counsel

David J. Don

Jason D. Lamm

Jonathan Brinson

Melissa Ho

Edward Novak

FINAL PRETRIAL CONFERENCE:

The Court reviewed the Joint Proposed Pretrial Order (Doc. 334) with the parties. The Court addresses 

the legal issues. As it relates to Defendant’s legal issue 3 – whether there is a viable aiding and abetting 

claim in this case – the Court will make it clear in the jury instructions that Defendant is liable if its 

employees engaged in liability-creating conduct within the course and scope of their employment. The 

parties and the Court therefore agree that the Court will not instruct the jury on the aiding and abetting 

claim. The aiding and abetting claim (Count 10) is dismissed.

Discussion is held regarding the scope of permissible damages. The Court’s view is that Plaintiff can 

recover damages for all injuries caused by Defendant during the six day period following his arrest, even 

if some of those injuries had effects after the six days. Mention of police surveillance shall not be made

before the jury, but Plaintiff can raise it with the Court during trial if he believes it becomes relevant to 

damages. 

The Court discusses video depositions with the parties. The parties are to confer as to what is being 

designated and objected to, and resubmit the chart at the beginning of Exhibit B as it relates to Crane and 

Merritt. If Defendant decides to use the deposition testimony of Ms. Saucedo at trial, it shall submit her 

transcript designations and objections to the Court far enough in advance to permit ruling on objections.

The Motion to Amend Final Pretrial Order (Doc. 420) is granted. The Court will substitute the pages in 

the motion for the pages in the pretrial order. 

Each side will be permitted 19 hours rather than 22 hours of trial time as previously stated. The Rule of 

exclusion is invoked. Forty prescreened jurors will be summoned the first day of trial. The Court will 

seat 8 jurors. The parties are reminded to pick up the jury questionnaires. A joint list of witnesses shall 

be submitted to the Courtroom Deputy no later than noon on October 23, 2020. 

Discussion is held regarding the Superior Court’s Notation of Clearance. The NOC will not be mentioned 

by the parties during trial. The Court instead reviews with the parties its proposed second paragraph of 

the statement of the case to be read to the jury on the first day of trial. After discussion, the Court decides 

to remove the grand jury reference and the mention of the aiding and abetting claim. Otherwise, the 

Court will read the statement of the case as drafted. The parties will not mention the grand jury or its 
CV-17-04540-PHX-DGC October 9, 2020 

Merritt v. Arizona, State of et al Page 2 of 2

indictment during trial. The Court finds Defendant’s cross-motion regarding the Notation of Clearance

(Doc. 407) moot. 

The Court grants Plaintiff’s Motion to Amend Joint Pretrial Order. Doc. 409. 

The Court grants Defendant’s Motion for Leave to Allow Defendant’s Witnesses to Appear by Video. 

Doc. 410. The Courtroom Deputy will email the parties with information needed to accomplish this. 

The Court makes the finding required by Federal Rule of Civil Procedure 43(a) for defense witnesses 

and the plaintiff-side witness who will testify remotely.

The Court grants Plaintiff’s Motion to Amend Joint Pretrial Order. Doc. 412. The Court grants Plaintiff 

leave to submit Deady’s deposition designations. 

The Court grants in part and denies in part Defendant’s Motion to Strike; or in the Alternative Motion 

for Leave to File Sur-Reply. Doc. 411. Defendant’s request to strike is denied and Defendant is

permitted to file a sur-reply by October 14, 2020. Plaintiff’s Motion for Reconsideration (Doc. 390) is 

under advisement pending the sur-reply. 

A discussion was held about the Klees report addressed by the Court in Doc. 387 at 5-6. Following the 

hearing, Plaintiff filed a copy of the report with an ATF affidavit of custodian of records. Doc. 422. 

After reviewing the report and its affidavit, the Court reaches the following conclusions on issues left 

open in Doc. 387: (1) The Klees report was listed by Plaintiff as an exhibit in the proposed final pretrial 

order (Doc. 334 at 28, Ex. 61); (2) the affidavit provided with the report satisfies the authentication 

requirements of Rule 901(a) and 902(4)1; and (3) the report falls within the hearsay exception for public 

records under Rule 803(8) because it recounts activities of ATF’s Forensic Science Laboratory 

(803(8)(A)(i)), it also sets forth factual findings from a legally authorized investigation (803(8)(A)(iii)), 

and Defendant has not shown a lack of trustworthiness (803(8)(B)). The Court cannot yet conclude that 

the Klees report is admissible at trial, however, because Plaintiff has not addressed how Rule 702 is 

satisfied (see Doc. 387 at 6) and Defendant objects that Plaintiff’s proposed use of the exhibits during 

the Weller or Maciulla testimony will not be relevant to their opinions. The Court will need to rule on 

these issues at trial. As a result, Plaintiff should not mention the Klees report to the jury until these issues 

have been resolved.

Deputy Clerk: Christine Boucher

Court Reporter: Patricia Lyons

Start: 1:05 PM

Stop: 3:15 PM

1 Rule 901(a) merely requires evidence sufficient to support a finding that the item is what the proponent 

claims – in this case, an ATF report prepared by Firearms and Toolmark Examiner Gregory Klees. 

Rule 902(4) “is not specific about what the custodian’s certificate should contain. At a minimum, it 

should state that the maker is the custodian of the record, or is otherwise authorized to make the 

certification, and that the copy is a correct copy of the official document.” 5 Weinstein’s Federal 

Evidence § 902.06 (2020). The ATF affidavit attached to Exhibit 61 satisfies these requirements. It is 

made by an ATF custodian of records and attests that the attached report is a “true copy” of ATF records. 

Doc. 422-1 at 2.