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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., 

Plaintiff, 

v. 

State of Arizona, et al., 

Defendants. 

No. CV-17-04540-PHX-DGC 

ORDER 

 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 stateand 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 
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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). 
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 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 

criminal case against Plaintiff. 

vi) Transmittal of Evidence. Prosecutor’s files and items related to three 

categories of information identified in Plaintiff’s Memorandum (Doc. 113) 

showing the disclosure of information transmitted by the State Defendants 

to the prosecutors about the I-10 Freeway investigation. Many of these 

items were previously withheld under a privilege log. (See Exhibit 4).

Id. at 3 (emphasis in original).

 These categories are slightly more detailed than arguments in Plaintiff’s first brief, 

but they are still very general. Despite Plaintiff’s access to a privilege log (Doc. 126-4), 

he has not identified specific documents he seeks to obtain (Doc. 126 at 3 (stating only 

that “[m]any of these items were previously withheld under a privilege log.”)). Nor does 

he provide more than general descriptions of question topics. As a result, the Court is 

forced to address only general arguments on general categories of information. Plaintiff 

has provided no information from which the Court can engage in more detailed linedrawing between protected and unprotected information. 

II. State Court Decision.

 Defendants argue that the state court judge in this case denied Plaintiff’s request 

for the same discovery before this case was removed to federal court, and argue that the 

Court should leave the state court ruling in place. Doc. 119 at 3-4. As Plaintiff has 

demonstrated, however, the state court judge made a case management decision, not a 

privilege or work product decision, and concluded only that depositions of the 

prosecutors should not be taken at that time. Doc. 126-6 at 41-42. He specifically noted 

that Plaintiff could seek the discovery later. Id. Plaintiff is seeking the discovery now, 

and the Court does not find the state court’s case management decision controlling. 

 
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III. Work Product Doctrine. 

 Defendants and the non-party prosecutor witnesses contend that much of the 

information sought by Plaintiff is protected by the attorney work product doctrine. 

Doc. 119 at 6. They note that Plaintiff essentially seeks the entire prosecutorial file, and 

assert that documents in that file were created “by or for” a party in this case – County 

Attorney Montgomery – in anticipation of or during the criminal case, and therefore fall 

within the work product protection of Rule 26(b)(3). Doc. 119 at 6-8; see Fed. R. Civ. 

P. 26(b)(3) (extending work product protection to “documents and tangible things that are 

prepared in anticipation of litigation or for trial by or for another party or its 

representative[.]”). Defendants also contend that the information sought by Plaintiff, 

including information sought in depositions, is protected work product under Hickman v. 

Taylor, 329 U.S. 495 (1947), and related cases, and that much of it includes mental 

impressions of prosecutors that are entitled to an even higher level of protection than 

ordinary work product. Doc. 119 at 8-11. 

 In response, Plaintiff relies almost entirely on Doubleday v. Ruh, 149 F.R.D. 601 

(E.D. Cal. 1993), a civil case that applied Rule 26(b)(3) to the work of prosecutors in a 

prior criminal case. Docs. 113 at 6-8, 126 at 7-8. Doubleday held that the prosecutors 

who were witnesses and not parties in subsequent civil litigation could not assert work 

product protection because that protection “cannot be claimed by one who would 

ordinarily hold the right to assert the immunity unless that person/entity is a party (or a 

party’s representative) to the litigation in which the immunity is asserted.” 149 F.R.D. 

at 606. In reaching this conclusion, Doubleday relied on In re California Public Utilities 

Commission, 892 F.2d 778 (9th Cir. 1989) (“CPUC”), which applied Rule 26(b)(3). See 

id. at 781. CPUC noted that the rule provides protection only for information created “by 

or for another party or by or for that other party’s representative,” and held that the word 

“party” in this rule language refers to a party in the subsequent litigation. Id. at 780-81. 

Because the prosecutors in Doubleday were not parties to the later civil litigation, the 
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district court presiding over that litigation held that they could not claim work product 

protection. 149 F.R.D. at 606. 

Doubleday is not helpful on most of Plaintiff’s six categories of requested 

information. Four of Plaintiff’s categories – (i) through (iv) – concern information he 

seeks in depositions of prosecutors, and the other two concern documents he seeks to 

have produced. Doc. 126 at 2-3. The work product discussion in Doubleday on which 

Plaintiff relies concerns only documents. It relies on CPUC, which in turn relies on 

Rule 26(b)(3), which applies only to “documents and tangible things.” 149 F.R.D. 

at 605-607; see Fed. R. Civ. P. 26(b)(3). This portion of Doubleday, which addressed a 

subpoena for documents, provides no help for Plaintiff’s four deposition categories.1

 Work product protection for intangible information, such a deposition testimony, 

is not covered by Rule 26(b)(3). It exists by virtue of the Supreme Court’s decision in 

Hickman and cases that have addressed Hickman. This cannot be a surprise to Plaintiff. 

The Court specifically noted during the discovery conference call on June 1, 2018, that 

work product protection for documentary evidence would be covered by Rule 26(b)(3) 

and for testimonial evidence would be governed by Hickman. And Defendants cite 

Hickman in support of their assertion of work product protection. Doc. 119 at 9. 

Plaintiff nonetheless fails to discuss Hickman in any respect. He does not even mention 

it. He instead relies entirely on Doubleday. Plaintiff has thus made no effective 

argument with respect to Defendants’ work product assertion for deposition categories (i) 

through (iv). 

Doubleday arguably applies to Plaintiff’s two categories of requested documents, 

(v) and (vi). But when the Court considers these two categories under the Rule 26(b)(3) 

limitation – that work product must have been created “by or for” a party in this case –

Doubleday is inapplicable because County Attorney Montgomery is a party in this case. 

Work product created “by or for” him in the criminal case would be protected even under 

 

1

 A later portion of Doubleday addressed depositions of prosecutors and declined 

to permit them on grounds other than work product protection. See 149 F.R.D. at 612-14. 
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Doubleday. And Plaintiff provides no information from which the Court can consider 

whether some specific documents would fall outside the work product protection asserted 

by Defendants. Defendant cites five cases in addition to Doubleday, but four of them are 

distinguishable because they rely on the same fact as Doubleday – that the prosecutor 

from the previous criminal case was not a party in the subsequent civil litigation. See

Doc. 113 at 8-9. The Court does not find the fifth case persuasive. Carter v. City of 

Philadelphia, No. Civ.A. 97-4499, 2000 WL 632988, at *1 (E.D. Pa. May 5, 2000), held 

that work product protection did not apply in civil litigation against a district attorney’s 

office because the office’s work product in a prior criminal case was created for the 

Commonwealth, not for the office. The court did not consider whether work product 

protection nonetheless applied because the documents were created by a party to the 

current litigation within the meaning of Rule 26(b)(3).2

 Defendants also assert that some information sought by Plaintiff constitutes 

opinion work product – mental impressions, legal theories, and conclusions of 

prosecutors – which enjoys a higher level of protection than ordinary work product. 

Doc. 119 at 9-10. As the Ninth Circuit explained in Holmgren v. State Farm Mutual 

Automobile Insurance Co., 976 F.2d 573 (9th Cir. 1992), opinion work product, including 

the mental impressions, conclusions, opinions, or legal theories of an attorney, is entitled 

to nearly absolute protection. See id. at 577 (describing heavier burden to overcome 

opinion work product protection). Plaintiff responds by again citing Doubleday, arguing 

that it permits the discovery of mental impression evidence. Doc. 113 at 7. But 

Doubleday cites Holmgren for the proposition that opinion work product “is discoverable 

where an attorney’s mental impressions are at issue and there is a compelling need for the 

 

2 Doubleday notes that “[a]ttorneys who prepared the work product are holders of 

the work product immunity in addition to the party for whom the work product was prepared.” 149 F.R.D. at 606 n.5. Thus, it would appear that County Attorney Montgomery can assert the protection over work prepared “by” him or his office even though he was not a party in the previous litigation. This distinguishes the portion of Doubleday which held that Sacramento County, a party in the subsequent civil litigation, could not assert work product protection because it was not a party in the prior criminal case. 149 F.R.D. at 605-606. 
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material.” 149 F.R.D. at 608 (emphasis added). Plaintiff recognizes this standard, but 

does not show that he has a compelling need for mental impressions of prosecutors. 

Plaintiff argues that their mental impressions could shed light on the mental impressions 

of the law enforcement officers who are defendants in this case (Doc. 113 at 7-8), but 

Plaintiff has deposed eight law enforcement officers who were involved in the 

investigation and has obtained substantial document production (Doc. 130 at 3). The 

Court cannot conclude that he has shown a compelling need to obtain the opinion work 

product of the prosecutors. 

 In short, Defendants have shown that the information sought by Plaintiff was 

prepared during or in anticipation of the criminal case, and Plaintiff has provided no basis 

on which the Court can conclude that the assertion of work product protection is 

erroneous. Nor do Plaintiff’s general categories of information provide any information 

for the Court to determine whether some specific documents or topics are not covered by 

the protection. 

IV. Prosecutorial Immunity. 

 Defendants contend that prosecutorial immunity prohibits deposition of the 

prosecutors. Doc. 119 at 5-6. “Absolute prosecutorial immunity is meant to ‘protect[] 

the prosecutor from harassing litigation that would divert his time and attention from his 

official duties’ and to ‘enabl[e] him to exercise independent judgment when deciding 

which suits to bring and in conducting them in court.’” Torres v. Goddard, 793 

F.3d 1046, 1051 (9th Cir. 2015) (quoting Kalina v. Fletcher, 522 U.S. 118, 125 (1997)). 

Defendants rely on Dowling v. Arpaio, No. CV-09-1401-PHX-JAT, 2011 WL 1456732, 

at *5 (D. Ariz. Apr. 15, 2011), for the proposition that even deposing a prosecutor is 

impermissible if it undermines the purposes of prosecutorial immunity. Doc. 119 at 6. 

 The Court noted in its July 3, 2018 order that it was unable to resolve this issue 

because Plaintiff had not addressed it. Doc. 121. Plaintiff responded with three 

sentences, asserting that the primary prosecutorial immunity case, Imbler v. 

Pachtman, 424 U.S. 409 (1976), does not address depositions. Doc. 126 at 7. Plaintiff 
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does not discuss Dowling’s reasoning that Imbler’s rationale should extend to discovery 

in subsequent civil cases. Nor does Plaintiff cite any case that rejects Dowling’s 

approach. Indeed, at least one other district court has prohibited a deposition for the 

same reason. See Chang v. United States, 246 F.R.D. 372, 373-74 (D.D.C. 2007). 

 Plaintiff also contends that “his claims based on Defendants’ media statements and 

involvement in pre-arrest decisions to arrest Plaintiff are prosecutorial actions not subject 

to absolute immunity.” Doc. 126 at 7. This argument appears to refer to discovery 

categories (i) and (iv). 

 With respect to category (iv), Plaintiff is correct that prosecutors have only 

qualified immunity when giving advice to police during a criminal investigation. 

Garmon v. Cty. of L.A., 828 F.3d 837, 843 (9th Cir. 2016). But Plaintiff does not seek 

testimony about such advice; he seeks internal communications among prosecutors. See 

Doc. 126 at 3. Those communications would appear to fall squarely within the holdings 

of Dowling and Chang, which Plaintiff never discusses. 

 With respect to category (i), Plaintiff is correct that prosecutors enjoy only 

qualified immunity when speaking to the press. Garmon, 828 F.3d at 843. But Plaintiff 

does not appear to seek testimony about statements made at the press conference. Those 

are matters of public record, some of which are quoted in Plaintiff’s brief. Instead, 

Plaintiff seeks testimony about “facts available to Montgomery at the time of his public 

statements[.]” Doc. 126 at 2. This somewhat imprecise description might well include 

facts the County Attorney acquired in communications within his office and with other 

prosecutors in the course of their prosecutorial duties. The Court cannot, therefore, 

determine that the testimony Plaintiff seeks in this category would be limited to actions 

covered only by qualified immunity. In any event, the Court found above that 

Defendants have asserted work product protection for category (i) that Plaintiff has not 

rebutted. 
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 In summary, Defendants have made a credible assertion that prosecutorial 

immunity prevents the depositions, and Plaintiff has not shown that Defendants are 

wrong.3

V. Deliberative Process Privilege. 

 Defendants contend that the deliberative process privilege prevents discovery on 

all six categories of information. Doc. 119 at 4-5. Federal common law recognizes such 

a privilege. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 

(2001). It rests on the assumption that officials will not communicate candidly among 

themselves if each remark would later be subject to discovery. Id. at 8-9. The privilege 

seeks to enhance the quality of government by promoting open and frank exchanges 

among government decision-makers. Id. at 9. For the privilege to apply, a document 

must meet two requirements. “First, the document must be predecisional – it must have 

been generated before the adoption of an agency’s policy or decision. . . . Second, the 

document must be deliberative in nature, containing opinions, recommendations, or 

advice about agency policies. Purely factual material that does not reflect deliberative 

processes is not protected.” F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th 

Cir. 1984) (internal citations omitted). 

 Plaintiff argues that he seeks “purely factual” information that is not covered by 

the privilege. Doc. 126 at 5-6. The Court agrees with respect to the first category of 

information: the facts available to Defendant Montgomery at the time of his public 

statement. Because this category limits its scope to facts, the deliberative process 

privilege does not apply. 

 But the Court cannot conclude that the deliberative process privilege is 

unavailable for the other five categories, which are not clearly limited to facts. Without 

more detailed information, the Court cannot make an informed decision on which 

documents and questions, or portions thereof, are privileged. The Court cannot conclude 

 

3

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that the deliberative process privilege is unavailable for general categories (ii) through 

(vi). 

 Nor can the Court conclude that Defendants have waived any privilege over those 

five categories. Defendant Montgomery announced the dismissal of the criminal case at 

a brief press conference on November 16, 2016. Doc. 126-1. Plaintiff submits a 

transcript of the press conference and asserts that it waived any privilege that might apply 

to “the information involved in weighing the Murdock report against the ‘totality of all 

the investigation that had been conducted at that point’ and moving to dismiss the 

criminal case.” Doc. 126 at 4 (quoting Defendant Montgomery’s statement). But 

Plaintiff does not link the press conference to the discovery he seeks; he does not explain 

how statements in the press conference waive the privilege with respect to particular 

categories of information. Plaintiff instead seems to argue that the press conference 

waived the deliberative process privilege over all internal deliberations in the criminal 

case. This broad view of waiver is unsupported by the case he cites. Doc. 126 at 4 

(citing Wilson v. Maricopa Cty., No. CV 04-2873 PHX-DGC, 2006 WL 1312934, at *3 

(D. Ariz. 2006) (“isolated instances [of publication] cannot be construed as a wholesale 

waiver of the deliberative process privilege”)). 

 Plaintiff also asserts that he has made the showing required to overcome the 

privilege. Doc. 126 at 4-6. The Ninth Circuit has provided this explanation: 

A litigant may obtain deliberative materials if his or her need for the 

materials and the need for accurate fact-finding override the government's 

interest in non-disclosure. Among the factors to be considered in making 

this determination are: 1) the relevance of the evidence; 2) the availability 

of other evidence; 3) the government’s role in the litigation; and 4) the 

extent to which disclosure would hinder frank and independent discussion 

regarding contemplated policies and decisions. 

Warner, 742 F.2d at 1161 (citations omitted). Plaintiff attempts to address the four 

factors identified in Warner, but his arguments are very general in nature, discussing the 

relevancy of broad categories of information. Doc. 126 at 5-6. Warner, by contrast, 

addressed two specific memoranda and the effect of their potential release, as well as 
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other information obtained in discovery that provided some of the same information as 

the memoranda. 742 F.2d at 1161-62. Plaintiff has provided no information from which 

the Court can engage in a similar inquiry, and his broad categories of requested 

information provide little help. 

 The Court concludes that the deliberative process privilege likely affords 

protection to information covered by categories (ii) through (vi), and that Plaintiff has not 

made the showing required to overcome the privilege. 

IT IS ORDERED that Plaintiff’s motion to compel (Doc. 113) is denied. 

Dated this 6th day of August, 2018.