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Daniel J. O’Connor, Jr., Bar No. 010081

Karen J. Stillwell, Bar No. 022711

O'CONNOR & DYET, P.C.

7955 South Priest Drive

Tempe, Arizona 85284

daniel.oconnor@occlaw.com

karen.stillwell@occlaw.com

(602) 241-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr.,

Plaintiff,

vs.

City of Phoenix, an Arizona Municipal

Corporation; Antonio Tarango; Officer 

Oswald Grenier; Officer Kevin 

McGowan; Officer Jason Hobe; Officer 

Ronaldo Canilao; Officer David Head; 

Officer Susan Heimbinger; Officer James 

Clark; Officer Dennis Lerous; Officer 

Ryan Nielson; Officer Steven Wong; and 

Doe Supervisors 1-5,

Defendants.

Case No.: 17-cv-04565-PHX-SMB

DEFENDANTS’ EXPEDITED MOTION 

FOR PROTECTIVE ORDER AND 

MOTION FOR SANCTIONS

(TO BE FILED UNDER SEAL)

(Assigned to the Honorable Susan M. 

Brnovich)

Pursuant to Rule 26(c)(1)(A), FED. R. CIV. P., Defendants City of Phoenix, Antonio 

Tarango, Officer Oswald Grenier, Officer Kevin McGowan, Officer Jason Hobel, Officer 

Ronaldo Canilao, Officer David Head, Officer Susan Heimbigner, Officer James Clark, 

Officer Dennis Leroux, Officer Ryan Nielsen, and Sergeant Steven Wong (collectively 

“Phoenix Defendants”) move for a Protective Order and respectfully request that the Court 
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order Plaintiff’s counsel to cease and desist all future comments, and release of information 

and/or documents, to the media and general public, with regard to this litigation and subject 

incident. Phoenix Defendants also request that the Court issue sanctions against Plaintiff and 

her counsel for the willful violation of the Rules and this Court’s Orders. Phoenix Defendants 

submit the following Memorandum of Points and Authorities in support of this Motion. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

Pursuant to Rule 26(c), Fed. R. Civ. P., and upon stipulation of the Parties, the Court 

Ordered a Protective Order on May 8, 2019, which provided for the protection of confidential 

and “other non-public documents, information, and/or materials made available during 

discovery and disclosures in this matter.” See Dkt. No. 072. Specifically, the Order defined 

“Confidential Information” as “any documents, evidence, testimony, materials, or other 

information, whether written or oral, exchanged, revealed, or presented in these proceedings, 

designated in good faith as ‘Confidential’ by any party,” including but not limited to, 

“information and documents... not generally available to the public as well as any copies or 

summaries of such information or any materials that reveal the contents of such information.” 

See Dkt. No. 072, ¶ 4 (emphasis added). The Order specifically permits deposition 

transcripts to be designated as Confidential “by making such a designation on the record at 

the deposition or by making such a designation in writing within 30 day of receipt of the 

deposition transcript by the Designating Party.” See Dkt. No. 072, ¶ 8. 

Once designated as Confidential, “such material shall be treated as Confidential 

Information under the terms of this Order until... by an order of this Court pursuant to good 

cause shown by a Challenging Party.” See Dkt. No. 072, ¶ 5 (emphasis added). 

II. DOCUMENTS AND INFORMATION DEEMED CONFIDENTIAL

Throughout the course of discovery, fourteen (14) employees from City of Phoenix 

were deposed, with the majority of those depositions videotaped. Phoenix Defendants 
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timely designated all fourteen depositions, including the related videos, as Confidential 

pursuant to the Court’s Protective Order. 

Phoenix Defendants have produced over 15,000 pages of documents through the 

course of the litigation, which include various employment files of the individual 

employees named as Defendants in this action. This includes the Defendant Officers’ 

training records, as maintained by Phoenix Police Department. Phoenix Defendants timely 

designated various documents as Confidential pursuant to the Court’s Protective Order. 

The designated documents themselves are marked “CONFIDENTIAL” and the 

Confidential designation is indicated in Phoenix Defendants’ Mandatory Discovery 

Responses. 

Plaintiff’s counsel is well-aware of the Confidential designations of the fourteen

depositions and various documents produced by Phoenix Defendants throughout the course 

of this litigation. In fact, Plaintiff’s counsel has challenged the Confidential designations

due to his desire to speak to the media about this lawsuit, the officers, and their testimony, 

however, the Court has not released any of the information/documents designated

Confidential by Phoenix Defendants that are relevant to this Motion. 

III. PLAINTIFF COUNSEL’S MEDIA COMMENTS AND INFORMATION 

PROVIDED

As the Court may recall, in June 2020, Plaintiff’s counsel Haytham Faraj created 

various social media posts regarding the litigation, and included body camera videos from 

the incident, which he altered to include his interpretation of what was being said in the 

body camera videos. (See Motion at Dkt. No. 179 and Response at Dkt No. 183). Phoenix 

Defendants moved for a Motion for Protective Order. Although the Court denied Phoenix 

Defendants’ Motion for Protective Order (see Dkt. No. 188), the Court cautioned counsel 

on future statements, indicating in part...“because the Court finds no violations of any 

Court order or rule, it declines to issue an order that would act as a prior restraint. However, 
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this does not mean that the Court would not do so if any counsel, whether for Plaintiffs 

or for Defendants violated Court rules in the future. The Court expects all counsel to 

exercise caution and restraint in all future statements, if any...The Court need not 

address Mr. Faraj’s claims that he was engaging in political speech and issue advocacy 

because no order is issuing. Notwithstanding this, his arguments lack merit because 

nothing in his posts were directed at holding elected officials accountable or addressing 

policing procedure issues. Nonetheless, he could do either of these things without 

attempting to influence the outcome of this case or citing to non-public information.” 

(Emphasis added). The Court also noted that it is “concerned with a statement by Mr. Faraj 

in his first post, which states that “[a]ll the officers involved admit that he did not attack 

any officer verbally or physically. This information appears to arise out of information 

obtained from the depositions in this case, which would be subject to the protective 

order.”

While Plaintiff’s counsel continues to assert that it is their intention to not try this 

case in the media (see assurances made by David Chami and Haytham Faraj during 

depositions of Defendant officers, attached as Exhibit A), their actions are blatantly 

contrary to these assurances. Since the Court’s June ruling, Plaintiff’s counsel has

continued to release to the media, information/interpretations, statements, documents, 

officer deposition testimony, and body camera videos from the litigation.

Plaintiff’s counsel’s timing in releasing this information to the media is of no 

coincidence. Immediately after the George Floyd incident in May 2020, Plaintiff’s counsel 

attempted to compare the George Floyd incident to this case and capitalize on the national 

attention and public outcry concerning use of force by police officers.

1 Shortly thereafter, 

the parties participated in additional settlement discussions that carried threats of media 

 

1 See Phoenix Defendants’ prior Motion for Protective Order, at Dkt. No. 179. 
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exposure. Settlement negotiations were not successful and, as threatened, on July 8, 2020, 

CNN released an article and video,

2 which included the release of bates labeled documents 

produced in the litigation, Plaintiff’s expert report, and included a sit-down interview of 

Mr. Chami, as Plaintiff’s counsel. 

In August 2020, Plaintiff’s counsel released body camera videos to the media, 

claiming that the officers targeted and mocked Mr. Muhaymin for his religion. Specifically, 

Plaintiff’s counsel told the media that the body camera video depicts the following:

3

 

Mr. Muhaymin: “Allah”

Officer: “Allah, he’s not going to help you right now”

As the articles indicate, this video was “[t]aken from the body camera of Officer 

Jason Hobel, one of 10 officers named as defendants in the Muhaymin family’s $10 million 

wrongful death lawsuit against Phoenix, the footage was uncovered during the civil suit 

and released by the family’s attorneys. The footage was previously reported on by CNN 

and has now been made public.”

It is interesting to note that while Plaintiff’s counsel is attempting to manipulate a 

potential jury pool with his interpretation of what is allegedly said on that body camera

video, Plaintiff’s counsel never questioned the officer at his deposition about what that 

officer actually said in the video. Thus, instead of getting to the truth of the matter or, at 

least, allowing the comment to be interpreted by the jury, Plaintiff’s counsel has

aggressively pushed his portrayal to the media in order to exploit a distorted agenda against 

Phoenix Defendants4 and to contaminate the potential jury pool with prejudice. 

 

2 https://www.cnn.com/2020/07/09/us/phoenix-muhammad-muhaymin-invs/index.html

3 Video and article: https://religionnews.com/2020/08/20/body-cam-video-muhammadmuhaymin-police-please-allah-help-cant-breathe-black-muslim/

4 The officer in fact was not mocking Mr. Muhaymin’s religion, the officer said “Allah? 

We’re trying to help you right now dude so relax. Relax due. Stop moving. Stop resisting, 

you understand?”
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If this violation wasn’t enough, Plaintiff’s counsel’s conduct does not stop there. In 

statements made to the media, Plaintiff’s counsel alleged that the Phoenix Police 

Department left the Allah portion out of the video on purpose...“we think this type of 

information will help maybe get somebody to take a second look whether these officers 

should still be patrolling this neighborhood. There’s no doubt that the city manipulated the 

narrative.”5 These comments are grossly untrue, unfair and extremely prejudicial. 

Plaintiff’s counsel knows, or should know, that these comments have only a single purpose, 

i.e., to manipulate and influence the potential jury pool, and that the Court has already 

admonished all counsel in this case against any such media efforts. 

Even if these statements were interpreted to encourage the public to purportedly 

“hold the Defendants accountable,” perhaps most alarming is Mr. Chami’s participation in 

a September 15, 2020 online video presentation that was live-streamed on Facebook. See 

Flyer of Presentation attached as Exhibit B, a Screenshot of Video attached as Exhibit C,

and a portion of Transcript attached as Exhibit D. See also Hyperlink below to access the 

full online Video Presentation.

6 During the course of this video presentation, Mr. Chami 

commits several direct and blatant violations of the Protective Order. For example, Mr. 

Chami repeatedly discusses deposition testimony given by officers in the litigation (which 

was deemed Confidential), as noted below: 

Mr. Chami: In fact, multiple officers testified that the type of resistance that 

Mr. Muhaymin engaged in is called passive resistance ...

See Exhibit D, p. 9, l. 17-19 (emphasis added). 

Mr. Chami: And then because of this act, and as one of the officers is doing 

it, he swears at Mr. Muhaymin and calls him a mother f’er, raises his arms 

 

5 https://www.standard.co.uk/news/world/police-mock-black-muslim-man-during-kneeon-neck-arrest-a4530696.html 6 Full Video Presentation:

https://www.facebook.com/ncjwarizona/videos/336635440980089
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over his head. And, by the way, the officers testified that Mr. Muhaymin did 

this on his own, took his cuffed arms over his head and he did it while they 

from behind attempted to keep his arms down, which it would be impossible 

for Mr. Muhaymin to take his cuffed arms behind his back over his head on 

his own ... 

Id. at p. 12, l. 8-19 (emphasis added).

Mr. Chami: And the question is – and I asked one of the officers in a 

deposition, what does a fish out of water do when it can’t breathe? I mean, 

its body naturally begins to flop around because it’s desperate for air. And 

that’s what was happening to Mr. Muhaymin. He was trying to adjust, trying 

to get into a position to breathe and the treatment by the officers who all have 

admitted their role. You know, yes, I was – I was putting the weight of my 

body on his waist, on his back. 

And, even Officer Greneir testified, well, you know, I had my knee on his 

shoulder but it slipped onto his head and I kept it there. 

Id. at p. 13, l. 18 – p. 14, l. 4 (emphasis added). 

Mr. Chami: The officers themselves, their statements under oath, their 

testimony under oath differs substantially from the statements they gave on 

the scene.

In some cases, they lied about – one of the officers lied about not recognizing 

Mr. Muhaymin during the altercation, not knowing he was someone with –

with mental health issues. Until his deposition where I said, oh, here you are 

on video saying yeah, you know him, you remember him, you dealt with him 

before. 

Id. at p. 15, l. 1-9 (emphasis added). 

Mr. Chami continues this video tirade against the Phoenix Defendants to discuss 

training documents and training materials (which were also deemed Confidential). Id. at 

p. 15, l. 18-24. He further misrepresents Phoenix Defendants’ response to training-related 

discovery in the litigation and, as noted above, blatantly accuses the officers of perjury, 

e.g., lying under oath.
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Shortly after this online video presentation aired, media articles began utilizing the 

confidential information Mr. Chami released during the online presentation and CNN 

interviews in various articles. See Exhibit E for Article released on September 15, 2020. 

The article is exemplary of the type of one-sided, misinformed and manipulated 

news coverage that has resulted from Plaintiff and Plaintiff’s counsel’s media campaign. 

In the article, the same misrepresentation created by Plaintiff’s counsel is repeated, 

specifically that the Phoenix Defendants responded to Mr. Muhaymin’s plea to “Allah” by 

saying “He’s not going to help you right now” when the truth is that the officer said “we’re 

trying to help you right now.” Citing this false premise, Plaintiff (Mr. Muhaymin’s sister) 

goes on to say:

The city of Phoenix and the Phoenix police targeted my brother for his race, 

they mocked him for his religion and disability, and then brutally killed 

him. 

The lack of any criminal action is a constant reminder to our family that black 

and brown people’s lives and rights are not valued by the politicians and 

public. 

Exhibit E (emphasis added). 

Mr. Chami personally contributed to the article and his comments compared this 

case directly to the George Floyd case. Id., p. 2. In making his comparisons, Mr. Chami 

referred to expert reports and deposition testimony. Again, as he did in the aforementioned

Video Presentation, Mr. Chami states that “experts have found that officers used excessive 

force, and a study and examination discovered that Mr. Muhaymin died from positional 

asphyxiation.” Id., p. 3. He further states that “we have since taken depositions of the police 

officers who were involved” and goes on to recite testimony from those officers. Id. 

There is no apparent end to Plaintiff’s counsel’s media campaign. It was renewed 

with exceptional vigor after settlement negotiations failed and the obvious goal is to 

prejudice the jury pool, deprive the Phoenix Defendants a fair trial, and attempt to coerce 
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the Phoenix Defendants into meeting Plaintiff’s settlement demands. As this newly 

released information spreads throughout the media (print, online and television), it 

becomes increasingly doubtful that a fair trial can be achieved for the Phoenix Defendants. 

IV. ARGUMENT

The conduct of Plaintiff’s counsel goes far beyond encouraging accountability or 

reassessing elected officials. It demonstrates misguided and wrongful attempts to try this 

case in the media. This is, after all, exactly what Plaintiff’s counsel threatened and, 

unfortunately, they are making good on that explicit threat. See Exhibit F7

.

It is also not without collateral and potentially catastrophic damage. This type of 

conduct provokes anger, anti-police sentiment and violence against police officers. It puts 

the lives of these public servants at even greater risk than normal, and puts the lives of 

community members at risk. In this current environment, with protests across this country 

turning violent, with police officers being targeted for assassination and shot in the streets, 

and with growing unrest resulting in arson, rioting, looting, assault and other violent 

confrontations, the result of Plaintiff’s counsel’s comments to the media and selective leaks 

is no different than adding gasoline to a burning fire. It is irresponsible and inappropriate, 

especially when it is considered that the goal is monetary (i.e., settlement of this case for 

millions of dollars) and not just for any alleged pursuit of “justice.”8 No additional 

 

7 This includes correspondence from Plaintiff’s counsel with settlement demands to 

Phoenix Defendants. While not marked as Rule 408 Communications, the

correspondences arguably contain Rule 408 Communications, and therefore further 

support Phoenix Defendants’ Motion to Seal, filed contemporaneously with this Motion.

8 The Phoenix Police Department conducted both internal and criminal investigations. This 

matter was investigated by the Phoenix Police Department’s Professional Standards 

Bureau and reviewed by the Department’s Use of Force Board. After review of all 

materials, including thirteen (13) body-worn cameras, the Board determined each of the 

ten officers involved acted in accordance with Department policy. Moreover, Phoenix 

Police Department’s Special Investigation Unit (“SIU”) forwarded its investigation, 

along with the materials and videos, to the Maricopa County Attorney’s Office for 

potential criminal prosecution of the officers. On February 22, 2018, the Maricopa 
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investigations are possible or warranted as those investigations have already been 

conducted and there is no new evidence, despite Plaintiff’s claims to the media of “newlyreleased” footage.

Plaintiff’s counsel indicates in media interviews that he and the family want 

“justice.” That is precisely what trial is intended to provide in these cases. The jury will 

hear all of the evidence in this case and render its verdict. That is the definition of “justice” 

under our civil justice system. Although the Court cannot control the media, the Court can 

control counsel and the litigants in this case – and it has (via the Protective Order). 

The actions of Plaintiff’s counsel are in direct violation of the Protective Order, 

together with this Court’s prior admonitions concerning statements to the media. Plaintiff’s

counsel has knowingly and intentionally released select portions of information (some of 

which is confidential) from this lawsuit to the media for the stated goal of increasing public 

exposure for purposes of pressuring the City of Phoenix into settlement. It is pure 

exploitation of the current environment, without any regard for consequential damages, in 

order to advance a narrative of this case to the general public and potential jury pool that 

is entirely misleading and prejudicial. Moreover, it is irrefutable that Plaintiff’s counsel has 

intentionally released information, documents and even deposition testimony that was 

deemed Confidential and clearly subject to this Court’s Protective Order. As such, 

Plaintiff’s and Plaintiff’s counsel’s conduct also demonstrates contempt of this Court. 

Our judicial system provides that all parties to this litigation are entitled to a fair 

trial, where both sides have the opportunity to present their entire case to a duly selected 

and empaneled jury, who will consider all of the evidence and render the ultimate verdict 

in this case. It is clear that Plaintiff has no intention of waiting until trial and allowing this 

case to be decided on its merits, or lack thereof. Instead, this case is currently being tried 

 

County Attorney’s Office announced the officers did not commit any act that warranted 

criminal prosecution.
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in the court of public opinion because of Plaintiff’s counsel’s efforts. Now, it is doubtful 

whether the Phoenix Defendants will receive a fair trial. Sanctions of the most severe form 

are warranted in this case. 

V. LEGAL ANALYSIS

Phoenix Defendants hereby incorporate their Memorandum (and exhibits) concerning 

the purpose and legal authority surrounding the necessity of Confidential designations in 

litigation (See Dkt. No. 117). Phoenix Defendants further incorporate their Supplemental 

Memorandum and Motion for Protective Order (and exhibits), pertaining to the conduct of 

Plaintiff’s counsel, and particularly with regard to Arizona Rules of Professional Conduct, 

E.R. 3.6 and 4.4 and Local Rule of Civil Procedure 83.8. (See Dkt. No. 179). 

1. Sanctions for Violations of Protective Order

The Court has authority under 28 U.S.C. § 636 to exercise contempt authority for 

violations of the Protective Order, which may be issued with or without a finding of civil 

contempt. Harmon v. City of Santa Clara, 323 F.R.D. 617, 622 (N.D. Cal. 2108). The 

Protective Order, including matters designated as confidential, is clear and unambiguous. 

Plaintiff and Plaintiff’s counsel has willfully ignored and violated the Protective Order by 

discussing confidential matters with the media and selectively leaking litigation materials 

(some confidential) to the media. This is tantamount to civil contempt. In re Dual-Deck 

Video Cassette Recorder Antitrust Litig., 10 F.3d 696, 695 (9th Cir. 1993)(“civil contempt 

occurs when a party disobeys a specific and definite court order by failing to take all 

reasonable steps within the party’s power to comply”). “There is no question that 

procedural rules are important and that infractions of those rules should not be tolerated by 

the courts. Otherwise, the rules themselves will not be taken seriously, and eventually they 

may exist in name only, honored in the breach”. Kovilic Construction Co., Inc. v. 

Missbrenner, 106 F. 3d 768 (7th Cir. 1997).

Violations of protective orders can also be addressed under Rule 37(b)(2) of the 

Federal Rules of Civil Procedure. Management Registry Inc. v. A.W. Companies, Inc., 2019 

WL 5388488 [*13]. As the Ninth Circuit has noted, Rule 37 exists to ensure compliance 
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with orders and to provide “adequate sanctions” to enforce compliance with orders. Id., 

citing Grimes v. City of San Francisco, 951 F.2d 236, 240-41 (9th Cir. 1991). 

Pursuant to Fed. R. Civ. P. 37(b)(2)(A), the court may sanction the party through 

any one of the following means: 

i. Directing that the matters embraced in the order or other designated facts be 

taken as established for purposes of the action, as the prevailing party claims;

ii. Prohibiting the disobedient party from supporting or opposing designated 

claims or defenses, or from introducing designated matters in evidence; 

iii. Striking pleadings in whole or in part;

iv. Staying further proceedings until the order is obeyed; 

v. Dismissing the action or proceeding in whole or in part; 

vi. Rendering a default judgment against the disobedient party; or 

vii. Treating as contempt of court the failure to obey any order except an order 

to submit to a physical or mental examination. 

“Instead of or in addition to” these sanctions, “the court must order the disobedient 

party, the attorney advising that party, or both to pay the reasonable expenses, including 

attorney's fees, caused by the failure, unless the failure was substantially justified or other 

circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Federal 

judges have inherent power to sanction parties and attorneys appearing before them for 

actions taken “in bad faith, vexatiously, wantonly, or for oppressive reasons.” See 

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1183–84 (2017); Chambers v. 

NASCO Inc., 501 U.S. 32, 45–46 (1991). 

Under the circumstances, there can exist little doubt that the Court has the inherent 

authority and power to impose severe sanctions. Roadway v. Express, Inc. v. Piper, 447 

U.S. 752, 765, 100 S. Ct. 2455 (1980) (courts have inherent power to levy sanctions on 

parties who engage in abusive litigation practices); Wyle v. R.J. Reynolds Industries, Inc., 
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709 F. 2d 585, 589 (9th Cir. 1983) (courts have inherent power, including dismissal of an 

action, when a party has engaged in conduct utterly inconsistent with the orderly 

administration of justice). 

There can also be no doubt that Defendants have suffered prejudice as a result of 

Plaintiff’s actions. Henry v. Gill Industries, 983 F. 2d 943, 947 (9th Cir. 1993)(“[a] 

defendant suffers prejudice if plaintiff’s actions impair the defendant’s ability to go to trial, 

or threaten to interfere with the rightful decision of the case”). 

“Rule 37(b) sanctions may serve either remedial and compensatory purposes or 

punitive and deterrent purposes,” but ultimately, “the imposition and selection of particular 

sanctions are matters left to the sound discretion of the trial court.” Harmon, 323 F.R.D. 

at 626, citing Falstaff Brewing Corp. v. Miller Brewing Co., 702 F. 2d 770, 784 (9th Cir. 

1993). Civil contempt sanctions under 28 U.S.C. § 636(e) and/or sanctions under 28 U.S.C. 

§ 1927 may be imposed regardless of whether or not the contempt was willful. Id., citing 

In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F. 3d 693, 695 (9th Cir. 1993)

(“civil contempt ... consists of a party’s disobedience to a specific and definite court order 

by failure to take all reasonable steps within the party’s power to comply. The contempt 

need not be willful, and there is no good faith exception of the requirement of obedience 

to a court order.”). 

2. Dismissal of Lawsuit is Appropriate Sanction 

In this case, Plaintiff’s counsel knowingly, intentionally and repeatedly violated the 

Protective Order by releasing confidential information and materials to the media and 

public. These egregious violations of the Protective Order have resulted in extreme 

prejudice to the Phoenix Defendants, impaired the Phoenix Defendants’ ability to receive 

a fair trial and threaten to interfere with the rightful decision of this case. The Court has the 

inherent authority and power to impose the most severe sanctions against Plaintiff and 

Plaintiff’s counsel, including dismissal of the lawsuit, for what has occurred in this case. 

Defendants respectfully submit that remedial sanctions are insufficient at this point 

because the damage is done and cannot now be corrected. Because of the conduct by 

Plaintiff’s counsel, the general public is left with the narrative from the media (including 
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national media outlets like CNN) that (a) the Phoenix Defendants arrested and then 

intentionally tortured and killed Mr. Muhaymin because they were racial and religious 

bigots; (b) the City of Phoenix has concealed and withheld evidence in order to manipulate 

the narrative; (c) the officers’ training was inadequate or protocols were not followed; 

and (d) the Phoenix officers committed perjury and lied under oath at depositions. 

Once put out into the mainstream media, this type of damage cannot be undone. 

The potential jury pool is now filled with persons who come into the jury selection process 

with the preconceived (and likely irreversible) notion that the Phoenix Defendants are 

racists and religious bigots who tortured and killed Mr. Muhaymin out of malice and

subsequently perjured themselves under oath, lied, and concealed evidence to cover up the 

alleged wrongdoings. This is entirely false information and unacceptable and, at the same

time, was entirely avoidable. Hence, the Protective Order and the Court’s prior admonitions 

to counsel against this very type of media campaign. 

Under the circumstances, only the most severe punitive sanctions can adequately 

address these violations, including dismissal of the lawsuit with prejudice on grounds that 

the Phoenix Defendants cannot receive a fair trial as a result of Plaintiff’s misleading and 

patently false media campaign. Moreover, as this Court is well-aware, Plaintiff’s counsel 

has demonstrated a pattern of disregard for the Rules and this Court’s Orders. See Dkt. No. 

127, 128, 164; see also September 14, 2020 and September 18, 2020 correspondence to the 

Court, attached as Exhibit G; see also September 30, 2020 correspondence exchanges to 

the Court regarding Plaintiff’s improper Subpoenas, direct communication with defense 

experts, and subsequent behavior, attached as Exhibit H. In the event that the Court is not 

inclined to dismiss the lawsuit, it is respectfully requested that the Court remove Plaintiff’s 

counsel as attorney of record in this case and/or impose monetary sanctions and against 

Plaintiff, including the attorneys’ fees and costs incurred in addressing Plaintiff’s counsel’s 

improper conduct.

. . .

. . .
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3. A Protective/Restraining Order is Necessary in Interest of Justice

If the lawsuit is not dismissed, the Phoenix Defendants respectfully request that a 

restraining order be instituted in this case. This is true regardless of whether Plaintiff’s counsel 

is removed or permitted to remain. Counsel for the Phoenix Defendants has not 

communicated, whatsoever, with the media other than to indicate that no comment would be 

given. As appropriate, the Phoenix Defendants request this case be decided in the courtroom 

before judge and jury, and not pre-decided in the court of public opinion.

There is good cause to restrict and prohibit Plaintiff and Plaintiff’s counsel from any 

further discussion of this case with the media and public, and selective leaks of materials and 

information to the media and public. That cause is to ensure that the parties receive a fair and 

impartial judicial process when the time comes to empanel the jury in this case. 

In the Court’s Order dated June 4, 2020, the Court noted as follows:

“The Court is empowered to issue a restraining order prohibiting trial 

participants from communicating with the media where ‘excessive trial 

publicity’ endangers the fairness of the judicial process.” Mizioch v. 

Montoya, No. CV10-01728-PHX-JAT, 2011 WL 4900033, at *6 (D. Ariz. 

Oct. 14, 2011) (citing Levine v. United States District Court for the Central 

District of California, 764 F.2d 590, 600-601 (9th Cir. 1985)). The Supreme

Court has said that the speech of trial participants can be restricted under a 

less demanding standard than that required to restrictions imposed on the 

press. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991). The 

Ninth Circuit has recently reiterated that a lower standard applies to prior 

restraints of the speech of attorneys participating in a case. See, e.g., In re 

Dan Farr Prods., 874 F. 3d 590, 593 n.3 (9th Cir. 2017). Other courts have 

noted that issuing restraints on lawyers still requires special protection when 

there has not been a determination that the speech is unprotected by the First 

Amendment. See Clifford v. Trump, Case No.: CV-18-02217-SJO (FFMx), 

2018 WL 5273913, at *3-4 (C.D. Cal. July 31, 2018); United States v. 

McGregor, 838 F.Supp.2d 1256, 1262 (M.D. Ala. 2012) (“Thus, a court 

should issue a gag order only if (1) the attorneys' speech presents a 

substantial likelihood of material prejudice to the proceedings; (2) the 

proposed protective order is narrowly tailored; (3) alternatives to the 
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protective order would not be effective; and (4) the order would be effective 

in achieving the government's goal.”)

Dkt. No. 188 (emphasis added). 

In this case, a Protective Order that imposes such a “gag order” upon Plaintiff and 

Plaintiff’s counsel is warranted for the fair and impartial administration of justice. If 

Plaintiff cares about “justice,” as claimed, there should be no objection to allowing this 

case to be tried solely where it belongs – in the courtroom. 

Similar to Plaintiff’s counsel’s seminar to discuss this litigation, there is new public 

advertising about another upcoming presentation on social media forums, which will 

include a discussion with Plaintiff, Mussalina Muhaymin, and is currently scheduled for 

October 14, 2020. See flyer attached as Exhibit I. In light of Plaintiff’s and Plaintiff’s 

counsel’s previous instances of improper release of information concerning this litigation, 

Phoenix Defendants requested expedited consideration of this Motion. This will ensure that 

additional violations of the Court’s Order and the Protective Order will not occur.

VI. CONCLUSION

For these reasons, Phoenix Defendants respectfully request the Court enter a Protective 

Order prohibiting further discussions with media and/or members of public. Phoenix 

Defendants also respectfully request that the Court issue sanctions against Plaintiff and

Plaintiff’s counsel for violating this Court’s Protective Order and June 5, 2020 Order, and 

repeated violations of the Court’s Orders and Federal Rules of Civil Procedure.

Phoenix Defendants propose sanctions against Plaintiff and Plaintiff’s counsel, to 

include dismissal of this case in its entirety, removal of Plaintiff’s counsel as attorneys of 

record, monetary punitive sanctions sufficient to deter such conduct in the future, a “gag” 

order to preclude any future communications and release of information to the media and 

public, and/or reasonable attorneys’ fees and costs awarded to the Phoenix Defendants 
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associated with preparing and filing all pleadings to date related to Plaintiff counsel’s 

release of information to the media and general public. 

RESPECTFULLY SUBMITTED this 7th day of October, 2020. 

O’CONNOR & DYET, P.C.

By: /s/ Karen J. Stillwell

Daniel J. O’Connor, Jr.

Karen J. Stillwell

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on October 7, 2020, I electronically filed the foregoing with the 

Clerk of the Court for the U.S. District Court, District of Arizona, using the CM/ECF 

System. A Notice of Electronic Filing will be served to the following registered 

participants:

David A. Chami

PRICE LAW GROUP, APC 

8245 N. 85th Way

Scottsdale, AZ 85258

Attorney for Plaintiff 

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ 

1935 W Belmont Ave. 

Chicago, IL 60657

Attorney for Plaintiff

 Brian J. Theut

THEUT, THEUT & THEUT

5150 North 16th Street

Phoenix, AZ 85016

Guardian Ad Litem and Statutory Representative for A. M. 

By: /s/ Aly Shomar-Esparza