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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., 

Plaintiff,

vs.

State of Arizona, et. al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

MEMORANDUM TO COMPEL 

DISCOVERY RE: CLAIMS OF WORK 

PRODUCT

Plaintiff Leslie Merritt, Jr., through counsel, submits this memorandum under 

the Court's Order (Doc. 103), and moves for an Order permitting discovery of 

information in possession of the Maricopa County Attorney’s Office (MCAO) and 

Maricopa County. Specifically, Plaintiff seeks documentation and testimony from the 

MCAO and Maricopa County being withheld under a privilege log and any notes, 
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emails, or other contemporaneously-created material, including case logs, created 

by prosecutors related to the prosecution of Plaintiff, including information about the 

three categories of non-disclosed or late-disclosed exculpatory material improperly 

withheld during their criminal prosecution of Plaintiff. The discovery sought relates 

to Plaintiff’s claims of false arrest resulting in his prolonged incarceration, wrongful 

prosecution, and intentional infliction of emotional distress. The discovery of this 

material is not available from other sources and may not have protection under the 

work product rule. 

I. Facts

Plaintiff seeks testimony and written documentation from MCAO related to his 

prosecution, including information about three categories of exculpatory evidence 

that Defendants refused or delayed disclosing during the criminal. First, the State 

Defendants used License Plate Readers (LPR’s) in I-10 Freeway Shooting 

investigation to identify motorists near the scenes of the shootings. Next, the State 

Defendants established before Plaintiff’s arrest and assisted by the FBI an 

undercover (honeypot) website. The honeypot was a proactive investigative tool, 

ostensibly to ascertain suspects by identifying the internet protocol addresses of 

individuals who showed an interest in the freeway shootings and visited the 

website. Neither any LPR nor honeypot website data related Plaintiff to any shooting. 

(Exhibit 1, Heape Deposition at 99:19-24; Exhibit 2, Pinnow Deposition at 227:14-

21). But during the criminal proceeding, MCAO disclosed no LPR data or even the 
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existence of the honeypot; let alone their failure to identify Plaintiff. (Exhibit 3, 

Declaration of Jason Lamm; Exhibit 4, LPR Memo),

The third category of information sought from MCAO relates to the Defendants’ 

five-month delay in disclosing a witness interview that contradicted their fabricated 

timeline to “explain” how Plaintiff’s gun was allegedly used in the BMW shooting while 

it was in a pawn shop. To resolve their inconsistent investigation, a DPS detective 

conducted on August 30, 2015, a second interview of the BMW driver whose tire was 

struck by a bullet after he left a Sky Harbor parking garage (when Plaintiff’s gun was 

in a pawn shop). In the interview, the driver stated that it would have been 

“impossible” for his car to have been shot while in the airport garage during August 

27-30, 2015. (Exhibit 5, Warren report of 9/22/15). Inexplicably, MCAO only 

disclosed the report of the interview to Merritt's criminal defense counsel over five 

months later. (Exhibit 6, Discovery letter of 2/29/2016).

Meanwhile, Defendants disregarded the witnesses’ statement and filed the 

criminal complaint against Plaintiff blithely claiming that the shooting occurred 

between August 27-30, 2015. Two days after the interview, a DPS detective falsely 

testified before the grand jury contrary to the exculpatory facts that the BMW driver 

stated in his interview. 

Defendants then procured an indictment, only 41 hours after filing the 

complaint, alleging, in contrast to the previous dates and the exhibits that the BMW 

shooting occurred between August 22-27, 2015. Defendant Pinnow, who supervised 

the investigators, testified that she was unaware of any investigation, evidence, or 
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documentation to support the changing timeline. (Exhibit 2, Pinnow Deposition at 

247:2-249:9). The manner of how the Defendants acquired the exculpatory 

information and the actions taken, given the exculpatory information, goes to the 

heart of Plaintiff's claims.

II. Plaintiff Seeks Material Relevant to His Claims.

Defendants have withheld from disclosure any written communications of the 

MCAO witnesses under a privilege log, including notes, emails, contemporaneously 

produced memorandum, and case logs related to the prosecution of Plaintiff. The 

material sought relates to Plaintiff’s claims against MCAO/Maricopa County and the 

State Defendants. The existence of exculpatory evidence and the State Defendants' 

failure to disclose the information is critical to the issues of causation on most of 

Plaintiff's claims, including Plaintiff's claims of false Imprisonment since prosecutors, 

relying on the State's reports, "could not dismiss charges on the basis of facts of 

which they were unaware. Correcting the error could be accomplished only by 

accurate disclosure of information held by [State defendants] alone and unknown to 

the prosecutors.” Tatum v. Moody, 768 F.3d 806, 819 (9th Cir. 2014). Also, Plaintiff 

has alleged prolonged wrongful detention in violation of the Fourteenth Amendment. 

The Ninth Circuit has held that when “investigating officers, acting with deliberate 

indifference or reckless disregard for a suspect's right to freedom from unjustified loss 

of liberty, fail to disclose potentially dispositive exculpatory evidence to the 

prosecutors, leading to the lengthy detention of an innocent man, they violate the due 

process guarantees of the Fourteenth Amendment.” Tatum, 768 F.3d at 816.
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Defendants' claim of work product will also likely prevent meaningful discovery 

in numerous upcoming depositions: Deputy County Attorney Vanessa Losicco on 

August 20, 2018 (Doc. 107), Deputy County Attorney Edward Leiter on August 20, 

2018 (Doc. 108), Deputy County Attorney Keith Manning on August 22, 2018 (Doc. 

109), and Defendant William Montgomery on August 15, 2018. (Doc. 110). Plaintiff 

seeks to explore each deponent’s knowledge of the exculpatory evidence, the 

rationale for the actions taken by MCAO during the prosecution, when the exculpatory 

evidence was received by the State, how they learned of the information, and the 

actions taken afterward. Without access to the written material in the prosecution 

files, the witnesses will likely have an incomplete recollection of the events and thwart 

meaningful disclosure and Plaintiff's counsel will have no means of refreshing their 

recollections.

III. The Work Product Rule Does Not Apply

The work product rule “is not a privilege but a qualified immunity protecting 

from discovery documents and tangible things prepared by a party or his 

representative in anticipation of litigation.” Admiral Ins. Co. v. United States Dist. of 

Arizona, 881 F2d 1486, 1494 (9th Cir. 1989). To establish work product protection: 

(1) the material must be a document or tangible thing; (2) the material must be 

prepared in anticipation of litigation; and (3) the material must be prepared by or for 

a party, or by or for its representative. Yurick ex rel. Yurick v. Liberty Mut. Ins. Co., 

201 F.R.D. 465, 472 (D. Ariz. 2001)(citations omitted). The burden of establishing a 

claim of work product is on the proponent. Id. Work product is discoverable where 
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an attorney's mental impressions are at issue, and there is a compelling need for the 

material. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 

1992).

The leading Ninth Circuit case addressing the work product rule in a malicious 

prosecution/false arrest civil rights case is Doubleday v. Ruh, 149 F.R.D. 601 (E.D. 

Cal 1993). In Doubleday, the plaintiff brought a malicious prosecution action in 

federal court after she was the subject of a criminal prosecution by the Sacramento 

County District Attorney's Office in which she was found not guilty of assault and 

battery on a peace officer. 149 F.R.D. at 604. She sued the County Sheriff's 

Department and various officers under 42 U.S.C. § 1983 and state law, alleging that 

they had conspired to use excessive force and to coerce the district attorney's office 

into prosecuting her criminally. Id. By subpoena, the plaintiff sought to obtain from 

the district attorney the criminal file used to prosecute her in the prior criminal case. 

The district attorney moved to quash, which the court denied. Id. First, the Court 

rejected the district attorney's reliance on the work product doctrine, concluding that 

the work product doctrine did not apply because the documents sought were not 

created by or for a party to the later litigation. Id. at 606. The Court concluded that 

even if the work product doctrine applied, the prosecutors must produce the 

documents because the plaintiff had shown a substantial need for the documents

and an inability to obtain them without undue hardship. Id. at 607.

The reasoning of Doubleday applies here. First, Plaintiff seeks documents not 

created for Maricopa County or William Montgomery who are the parties to the later 
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civil litigation. In Arizona, the Maricopa County deputy county attorneys in a criminal 

proceeding represent society and do not represent Maricopa County. See State ex 

rel. Romley v. Superior Court in and For County Maricopa, 181 Ariz. 378 (App. 1995). 

Montgomery/Maricopa County cannot satisfy the essential requirement for workproduct that the material must be prepared by or for a party, or by or for its 

representative. The Court should require that Defendants Montgomery and 

Maricopa County produce the documents.

Also, in Doubleday, the plaintiff argued that the mental impressions of the 

attorneys were at issue. The plaintiff claimed that the police officers manipulated 

evidence and the district attorneys so the plaintiff would be improperly prosecuted.

Doubleday, 149 F.R.D. at 607-8. Similarly, here, Plaintiff has alleged that the State 

Defendants have fabricated and manipulated evidence to secure Plaintiff’s 

prosecution. (Doc. 8, Second Amended Complaint at paragraphs 86-90). The mental 

impressions of the officers are at issue.

In Doubleday, the court recognized “that the mental workings of the defendant 

officers are at issue, especially to the extent that the district attorneys' mental 

processes reflect those of the officers. To the extent that the prosecutor's notes reveal 

unease, irritation, or the like with respect to the pressures, if any, brought to bear 

against them by the individual defendants, those notes constitute the heart of 

plaintiff's case.” Id. at 608. Here, the mental processes of the prosecutors reflect 

those of the DPS officers, and indicate how the State defendants attempted to 

manipulate the prosecutors. The best evidence would be the prosecutors' 
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contemporaneous notes, memorandum, and emails. Plaintiff has no other manner 

of acquiring the information. 

The court in Doubleday also identified that the production of documentary 

material is required for meaningful depositions. “Giving the [deponent] attorneys an 

opportunity to respond to a question regarding their mental impressions without 

access to records would not be as conducive to a forthright answer as the file itself 

would provide.” Id. Similarly here, the deputy county attorneys must have access to 

their records to provide complete responses to deposition questions.

Plaintiff lacks an alternative other than asking the deponents about their 

reliance upon State Defendants’ representations to prosecutors and how they relate 

to the rationale behind later actions taken the criminal case. Plaintiff has elicited 

testimony from multiple individual defendants that multiple pieces of exculpatory 

information were not furnished to prosecutors. Having deposed all DPS personnel 

who may know of the withholding of exculpatory evidence, there is no other avenue 

for Plaintiffs to pursue, save for questioning prosecutors about their impressions, to 

obtain evidence to establish causation.

Most courts from other jurisdiction that have addressed similar cases have 

rejected the application of the work product rule in subsequent civil litigation following 

the demise of the criminal case. See Klein v. Jefferson Parish School Bd., 2003 WL 

1873909, *2-3 (E.D.La. Apr. 10, 2003) (no work-product privilege applied in 

subsequent civil litigation where plaintiff sought district attorney’s written notes from 

plaintiff’s prior criminal investigation); Ostrowski v. Holem, 2002 WL 31956039, at *3 
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(N.D.Ill. Jan. 21, 2002) (“[M]any courts have found the work-product privilege 

unavailable when a prosecutor in a prior criminal investigation later objects to 

discovery by a litigant in a related and subsequent civil lawsuit.”); Carter v. City of 

Philadelphia, 2000 WL 632988, at *1-2 (E.D.Pa. May 5, 2000) (work product privilege 

did not apply where, during course of subsequent civil litigation, plaintiff sought 

documents generated to underlie but already-concluded criminal case); Hernandez 

v. Longini, 1997 WL 754041, at *2 (N.D.Ill. Nov. 13, 1997) (plaintiff asserting a §1983 

claim could obtain production of the prosecutor's criminal files from her prior 

prosecution; work product privilege did not apply); Schultz v. Talley, 152 F.R.D. 181, 

185 (W.D. Mo.1993) (district attorney cannot assert work-product privilege because 

not a party to the present suit). This Court should decline to extend a blanket work 

product privilege to the documents sought by Plaintiff.

IV. Federal Law preempts the Basis for State Court's Previous Ruling

Before removal of this case, the state court judge issued a protective order 

granting work product protection to emails and internal communications of the 

Maricopa County Attorney’s Office (Exhibit 8, Minute entry, filed 

6/27/2017). Although the minute entry fails to reflect the judge’s reasoning, federal 

law preempts the legal basis for the ruling. Now that federal claims exist, the state 

law privileges are preempted,”Where there are federal question claims, and pendent 

state law claims present, the federal law of privilege applies.” Fed. R. Evid. 501 

advisory committee note; see also Wm. T. Thompson Co. v. Gen. Nutrition Corp., 
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671 F.2d 100, 104 (3rd Cir. 1982). This Court should revisit the claim of work product 

based on the new circumstances.

V. Conclusion

Plaintiff seeks an Order requiring Defendants Maricopa County and William 

Montgomery to produce all notes, emails, memorandum, or other 

contemporaneously-created material, including case logs, created by prosecutors 

related to the prosecution of Plaintiff, and require deponents to provide full testimony

about their involvement with the prosecution of Plaintiff.

DATED this 18th day of June 2018.

Law Offices of David J Don, PLLC and

Law Offices of Jason Lamm

By: s/David J. Don

David J. Don, Esq.

Jason D. Lamm, Esq.

Attorneys for Plaintiff Leslie A. Merritt, Jr.
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CERTIFICATE OF SERVICE 

I certify that on this 18th day of June 2018, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to these CM/ECF registrants:

Clerk of the Court

United States District Court, District of Arizona

Sandra Day O’Connor Courthouse

401 W. Washington St.

Phoenix, AZ 85003

Michele Iafrate, Esq.

Renee J. Waters, Esq.

Iafrate & Associates

649 North Second Avenue

Phoenix, Arizona 85003

miafrate@iafratelaw.com

Attorneys for Defendants Maricopa County and William Montgomery

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

Email: enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

By: /s/David J. Don