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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

Brett W. Johnson (#021527) 

Craig A. Logsdon (#020223) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004 

Telephone: 602.382.6000 

E-Mail: bwjohnson@swlaw.com 

 clogsdon@swlaw.com 

Attorneys for Arizona Governor Douglas A. Ducey 

and the Office of Governor Douglas A. Ducey

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A. Merritt, Jr., a single man, 

Plaintiff, 

v. 

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa County 

Attorney; Maricopa County, a body politic; 

Heston Silbert, in his individual capacity; 

Christopher Kalkowski, in his individual 

capacity. Frank Milstead, in his individual 

capacity; Ken Hunter, in his individual 

capacity; Kelly M. Heape, in his individual 

capacity; Jennifer Pinnow, in her individual 

capacity, Anthony Falcone, in his 

individual capacity, 

Defendants. 

Case No. 2:17-CV-4540-PHX-DGC 

NON-PARTIES ARIZONA 

GOVERNOR DOUGLAS A. DUCEY 

AND OFFICE OF GOVERNOR 

DOUGLAS A. DUCEY’S POSITION 

STATEMENT CONCERNING 

DISCOVERY ON THIRD PARTIES 

 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 1 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

The Office of Arizona Governor Douglas A. Ducey, and Governor Douglas A. 

Ducey himself (collectively the “Governor”), submit this Position Statement, and request 

a Rule 26(c) Protective Order on the following discovery issues raised by Plaintiff: 

(1) The Court should prohibit a deposition of the Governor because there are no 

extraordinary circumstances to justify one. Any information the Governor may possess 

has, at most, tangential relevance, is available from other sources, and does not justify 

disruption of the Governor’s official duties. 

(2) Plaintiff seeks information containing private, sensitive, or privileged 

information, such as cell phone numbers of the Governor and his staff. The Governor’s 

Office should be able to redact such information before it is produced in discovery, and 

the attached protective order should govern the production and use of such information. 

I. BACKGROUND. 

The lawsuit does not involve the Governor or his Office. Instead, Plaintiff submits 

allegations of tortious conduct by the Arizona Department of Public Safety (“DPS”), 

which investigated and arrested Plaintiff, and against the prosecuting agency, the 

Maricopa County Attorney’s Office. It is already well established that DPS kept the 

Governor apprised of its investigation of a sensitive case, but the Governor did not 

participate in law enforcement activity, the arrest, or prosecutorial decisions. Instead, the 

Governor let law enforcement officers and prosecutors do their jobs. This is undisputed. 

Plaintiff has not shown that the undisputed facts are somehow relevant to his 

claims or that the Governor possesses other relevant information about his claims that 

cannot be discovered from other sources. 1 Additionally, the disclosure of other 

information, including cell phone numbers, or even partial numbers, puts the Governor’s 

security directly at risk and could substantially disrupt State government. Entering a 

comprehensive protective order at this juncture to allow the redaction of sensitive 

information will lead to more efficient discovery throughout the litigation. 

 

1 Plaintiff’s effort to conduct discovery on the Governor is not new—in Mr. Merritt’s 

criminal matter, the Court denied a motion to depose the Governor without the Governor 

even having to respond. (Order, Ex. A.) 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 2 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

II. A DEPOSITION OF THE GOVERNOR SHOULD BE PROHIBITED 

BECAUSE NO EXTRAORDINARY CIRCUMSTANCES EXIST. 

A highly-placed public officer should not be required to give a deposition where, as 

here, discovery is not essential to prevent prejudice or injustice to the requesting party. In 

re Office of Inspector General, 933 F.2d 276, 278 (5th Cir. 1991); see also Sweeney v. 

Bond, 669 F.2d 542, 546 (8th Cir. 1982) cert. denied, 459 U.S. 878, 103 S.Ct. 174 (1982), 

abrogated on other grounds, O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 

(1996) (governor not required to testify absent compelling need). 

The extraordinary circumstances requirement before allowing discovery is that 

“high ranking government officials have greater duties and time constraints than other[s].” 

In re United States, 985 F.2d 510, 512 (11th Cir. 1993); Bogan v. City of Boston, 489 F.3d 

417, 423 (1st Cir. 2007) (“without appropriate limitations, such officials will spend an 

inordinate amount of time tending to pending litigation”). High-ranking government 

officials’ time should “be conserved for the public’s business to as great an extent as may 

be consistent with the ends of justice.” Cmty. Fed. Sav. & Loan Ass’n v. Fed. Home Loan 

Bank Bd., 96 F.R.D. 619, 621 (D.D.C. 1983). 

Therefore, the law requires Plaintiff to show not only that the deposition of 

Governor Ducey is for a legitimate purpose, but also to further prove that this case 

presents an extraordinary circumstance. Here, as Governor Ducey is not a party to this 

case, Plaintiff cannot identify a legitimate (or relevant) purpose to depose him. 

Furthermore, no extraordinary circumstance is created by the fact that DPS kept the 

Governor’s Office updated, that the Governor made public statements supporting the 

investigation, or that he updated the citizens of Arizona after Plaintiff’s arrest. Since 

Plaintiff cannot meet his burden, the Governor should be protected from a deposition. 

III. A PROTECTIVE ORDER IS APPROPRIATE FOR THIRD-PARTY 

DISCOVERY RELATED TO THE GOVERNOR. 

 In addition to a protective order prohibiting the deposition of Governor Ducey and 

his staff, good cause also exists for a protective order under Rule 26(c)(1) to redact 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 3 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

records protected by the executive communications privilege, and information including 

but not limited to personal and state-issued phone numbers of the Governor and his staff. 

A. The Executive Privilege Should Apply to the Governor’s Communications. 

The proposed protective order gives the Governor’s Office an opportunity to 

protect sensitive advice to the Governor, when necessary, via the executive 

communications privilege. The Governor must be able to have confidential 

communications with officers of State government. It simply is not wise public policy to 

unilaterally disclose sensitive information without having the opportunity to determine 

whether disclosure would affect state interests. 

The executive communications privilege is widely accepted at the federal level. 

The U.S. Supreme Court recognized the presumptive privilege in United States v. Nixon, 

418 U.S. 683, 708 (1974), which the Court noted was “fundamental to the operation of 

Government and inextricably rooted in the separation of powers under the Constitution.” 

See also In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997) (recognizing a 

“presidential communications privilege” when the President is “asked to produce 

documents or other materials that reflect presidential decisionmaking and deliberations 

and that the President believes should remain confidential.”) 

Although Arizona courts have not specifically applied an executive 

communications privilege to communications involving the Governor, the privilege has 

been “widely recognized by both federal and state courts.” Doe v. Alaska Superior Court, 

Third Judicial Dist., 721 P.2d 617, 623 (Alaska 1986). See, e.g., id. (“the public policy 

rationale upon which the Supreme Court relied in United States v. Nixon is equally 

applicable to our state government”); Republican Party of New Mexico v. New Mexico 

Taxation and Revenue Dep’t, 283 P.3d 853, 868 (N.M. 2012); State ex rel. Dann v. Taft, 

2006-Ohio-1825, ¶ 60, 109 Ohio St. 3d 364, 377, 848 N.E.2d 472, 485. 

The Arizona Constitution requires communications between the Governor and 

officers of State government “upon any subject relating to the duties of their respective 

offices.” See Ariz. Const. art. 5, § 4. The proposed protective order provides a mechanism 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 4 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

for these Constitutionally-mandated communications to be reviewed for sensitive 

information and, if necessary, redacted. 

B. Redaction is Appropriate to Address Safety and Other Concerns.

In additional to other potentially privileged material, redaction of phone numbers is 

necessary for several reasons. As set forth above, the Governor is the chief executive of 

Arizona, and his “duties are manifold.” Proctor v. Hunt, 43 Ariz. 198, 207 (1934). If 

certain information, such as the Governor’s personal and official cell phone numbers, is 

disclosed, it would disrupt state operations, create an undue burden for the Governor, and 

create an undue expense of State resources to properly deal with the inevitable fall-out. It 

would be expected that the public would deluge the private numbers with calls or other 

interference with the Governor’s privacy. 

Safety and security is also of paramount concern. With just seven of the ten 

numeric digits of a phone number already identified, a bad actor could easily identify the 

remaining digits and track the Governor’s movements, hack his accounts, and access 

private and personal information. Once someone has such identifying information, it 

“endangers the security of numerous highly sensitive computer systems. Dates and places 

of birth, social security numbers, and mother’s maiden names are precisely the kind of 

information that many high-security systems use to verify the identity of authorized users . 

. . . disclosure of this information threatens to provide access to a variety of secure 

systems.” Mehl v. Blanas, 241 F.R.D. 653, 657 (E.D. Cal. 2007). 

Under the Governor’s proposed protective order, the Governor’s Office would 

have an efficient means to screen for such information, and Plaintiff would still receive 

the information responsive to his request. (Protective Order, Exs. B and C.) Simply, 

Plaintiff would still be able to identify when calls were made to the Governor and his 

staff—the numbers would simply be redacted. According to Plaintiff, it is the timing of 

the calls that matter to him (despite failing to provide justification for this argument). 

The Governor’s proposal to redact sensitive and potential executive privileged 

information has been approved as an effective means for handling documents with private 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 5 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

information. When faced with a request for inspection of records containing personal 

identifying information, the court in Carlson v. Pima County, 141 Ariz. 487, 490–91 

(1984), found that “a practical alternative to the complete denial of access would be 

deleting specific personal identifying information, such as names.” The Governor 

proposes the same approach here. 

For some information, such as phone numbers, redaction is required as opposed to 

a simple non-disclosure order. As articulated in Mehl v. Blanas, 241 F.R.D. at 658, if the 

information is produced, “the only safeguard preventing widespread public disclosure of 

this sensitive information is the assurance of Plaintiffs’ counsel.” And while Plaintiff’s 

counsel would not intentionally disclose confidential information, as the Court held in 

Mehl, the Governor’s interest in the privacy and security of confidential or privileged 

information requires a more stringent safeguard than the assurance of any one litigant. Id. 

Likewise, an “Attorneys’ Eyes Only” designation is an insufficient safeguard in 

this context. Other courts have recognized that this label does not offer adequate 

protections when personal information is at issue. See, e.g., Entral Grp. Int'l, LLC v. 

YHCL Vision Corp., 436 F. Supp. 2d 404, 406 (E.D.N.Y. 2006) (denying disclosure of 

Social Security numbers because “The ‘attorneys’ eyes’ only’ protective order suggested 

by the plaintiff here is not sufficient to address the privacy concerns at issue.”) Again, the 

Governor does not anticipate intentional disclosure by anyone. But common sense dictates 

that one error by staff, a security breach, or any other host of factors could result in 

disclosure of the Governor’s information if merely protected by “Attorneys’ Eyes Only.” 

Finally, while the Court already entered into a protective order between the parties 

to the litigation, it does not specifically address the Governor. It also provides insufficient 

protection, as it does not cover additional discovery, subpoenas, or testimony, or require 

compliance by anyone not a party to the litigation. 

IV. CONCLUSION 

For the reasons stated above, discovery directed to the Governor should be 

prohibited, and the proposed protective order should be entered. 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 6 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

 DATED this 14th day of March, 2018. 

 SNELL & WILMER L.L.P. 

By: /s/ Brett W. Johnson 

Brett W. Johnson (#021527) 

Craig A. Logsdon (#020223) 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004 

Telephone: 602.382.6000 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 7 of 8
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

CERTIFICATE OF SERVICE 

I hereby certify that on this 14th day of March, 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 the CM/ECF registrants. 

 /s/ Tracy Hobbs 4840-0767-4463 

Case 2:17-cv-04540-DGC Document 59 Filed 03/14/18 Page 8 of 8