Melendres et al v Sheridan et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres, on
behalf of himself and all others similarly
situated; et al.
Plaintiffs,
and
United States of America,
Plaintiff-Intervenor,
v.
Gerard A. Sheridan, in his official capacity
as Sheriff of Maricopa County, Arizona; et
al.
Defendants.
No. CV-07-2513-PHX-GMS
ORDER
Pending before the Court is a dispute as to whether Defendant Gerard A. Sheridan,
in his official capacity as Sheriff of Maricopa County, Arizona (“MCSO”), is entitled to
withhold certain email documents requested by the Court-appointed Independent
Investigator, due to assertions of the attorney-client privilege and the work-product
protection. Because MCSO has not met its burden of demonstrating that the withheld
documents are privileged or protected, MCSO is instructed to turn over the documents
requested by the Independent Investigator, as expeditiously as possible.
Moving forward, should MCSO again wish to assert the privilege or protection
during the course of the investigation, MCSO must (1) make a prima facie showing of
attorney-client privilege or work-product protection for each asserted document as to a
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member of its own PSB, (2) demonstrate that the privilege or protection has not otherwise
been waived through dissemination within MCSO, and (3) indicate why the Independent
Investigator, (a) in the attorney-client context, would not have a “need to know” the
contents within the documents in the course of her investigation, or (b) in the work-product
context, would be a “potential adversary” to MCSO with regard to the withheld documents.
BACKGROUND
After consultation with the Monitor by the MCSO’s Professional Standards Bureau
(“PSB”), IA 2025-0185, an internal affairs PSB investigation, was recommended for
independent investigation.1 (Doc. 3191 at 1). The Court appointed Shaneeda Jaffer (the
“Independent Investigator”)2 of the Cleveland-based law firm of Benesch, Friedlander,
Coplan and Aronoff to conduct the investigation for IA 2025-0185. (Id.). On August 21,
2025, the Independent Investigator submitted to MCSO a document request seeking
“investigative files or communications” between identified “non-attorney employees of
MCSO.” (Doc. 3271 at 4-5). The document request identified eleven non-attorney
custodians with relevant files or communications. (Id. at 33).
On September 10, 2025, the Independent Investigator informed the Court that a
dispute had arisen with MCSO regarding IA-2025-0185. (Doc. 3251 at 14:21-15:18). The
Independent Investigator flagged that her document requests were being screened by
MCSO lawyers for attorney-client privilege. (Id. at 15:5-9). The Court addressed the
1 The PSB is a division within MCSO that “ensures that MCSO employees adhere to
the highest ethical standards.” Sheriff’s Office, Maricopa Cnty., Ariz.,
https://www.maricopacountyaz.org/Sheriffs_Office.html (last visited Nov. 7, 2025). It
“handles internal investigations and complaints regarding officer conduct, ensuring
accountability and transparency within the department.” Id.
2 MCSO did not appeal the Court’s Order appointing Ms. Jaffer as the Independent
Investigator (Doc. 3191). Additionally, the Court’s Second Supplemental Injunctive Order
in this case (Doc. 1765) contained similar, if not identical, language authorizing an
Independent Investigator to investigate at least twelve internal affairs complaints that
MCSO had failed to appropriately investigate. (See Doc. 1765 ¶¶ 296-319). The Ninth
Circuit affirmed the Court’s Second Injunctive Order in full. See Melendres v. Maricopa
County, 897 F.3d 1217, 1223 (9th Cir. 2018) (Melendres IV) (“The district court did not
abuse its discretion in formulating the terms of the second supplemental injunction.”).
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dispute at a status conference held on September 12, 2025. (Id. at 14:21-28:11). At the
conference, the Court remarked that “merely because [MCSO] can screen attorney-client
privileged information from the monitor in an investigation, doesn’t mean that [MCSO]
can screen the attorney-client privilege from PSB folks who . . . unless you will tell me
otherwise, disclosure to the PSB folks doesn’t waive the privilege. And Ms. Jaffer has got
to be careful not to waive the privilege too. She is acting as a PSB person.” (Id. at 17:6-
13). The Court directed the MCSO to provide the Independent Investigator with all
documents as to which MCSO did not assert any privilege or protection, and then provide
the Independent Investigator with a privilege log. (Id. at 19:25-20:9, 22:25-23:12). The
parties could then brief the issues as to the specific documents contained in the privilege
log. (Id. at 23:10-12). The following exchange occurred at the status conference:
THE COURT: How about this, how about you review those
documents [requested by the Independent Investigator]. You
give her every document that you are not concerned about, and
we deal only with documents, if any exist, that you claim are
subject to some sort of attorney-client privilege?
[COUNSEL FOR MARICOPA COUNTY]: We can do that,
Your Honor.
THE COURT: I mean, I think that will focus the argument a
lot better than if we just -- any problem with the Sheriff in
doing that?
[COUNSEL FOR MCSO]: No, Your Honor.
(Id. at 19:25-20:9 (emphasis added)).
In its briefing, however, MCSO did not include any discussion of the privilege log
submitted to the Independent Investigator, nor did it provide any detail as to why specific
documents could be withheld from the Independent Investigator. Instead, MCSO only
generally identifies three categories of documents that it has withheld from the Independent
Investigator: (1) legal advice regarding the present litigation (“emails between MCSO
command staff and counsel from Jones, Skelton, & Hochuli involving issues from this
litigation and before this Court, including discussions regarding PSB, Monitor requests,
and other compliance requirements”); (2) draft work product (“emails that contain
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comments and draft reports that were eventually filed in this case”); and (3) legal advice
regarding HR decisions, merits appeals, and unrelated cases (“pages pertaining to
communication between Deputy County Attorneys and the Sheriff’s Office in Merit
Appeals”). (Doc. 3261 at 9-10).
MCSO’s position is that production of the above documents would constitute waiver
of the attorney-client privilege and work-product protection by MCSO because the
Independent Investigator’s role goes beyond that of a PSB investigator, and that even if
Ms. Jaffer were a member of the PSB, disclosure to PSB would still constitute waiver of
the privilege and protection. (Id. at 3-6). In response the Independent Investigator posits
that “MCSO does not have the right to delay production of documents in order to review
and remove [] irrelevant and/or privileged documents because there is no risk that the
Sheriff’s Office’s privilege would be jeopardized by production to the Independent
Investigator who is standing in the shoes of the PSB.” (Doc. 3271 at 5).
DISCUSSION
The Court will discuss the applicability of each privilege and protection in turn.
A. The Attorney-Client Privilege.
1. MCSO Must Make a Prima Facie Case That the Documents Are
Privileged.
“A party asserting the attorney-client privilege has the burden of establishing the
existence of an attorney-client relationship and the privileged nature of the
communication.” United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citation
modified) (citations omitted). The Ninth Circuit employs an eight-part test to determine
whether information is covered by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser,
(8) unless the protection be waived.
Id. (citations omitted). Blanket assertions of the attorney-client privilege “are extremely
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disfavored.” United States v. Martin, 278 F.3d 988, 1000 (9th Cir. 2002) (citation omitted),
as amended on denial of reh’g (Mar. 13, 2002). “A party claiming the privilege must
identify specific communications and the grounds supporting the privilege as to each piece
of evidence over which privilege is asserted.” Id. (emphasis added) (citation omitted).
2. MCSO Must Demonstrate That It Did Not Waive the Attorney-Client
Privilege by Circulating the Purportedly Privileged Documents Within
MCSO.
Under the Supreme Court’s formulation in Upjohn Company v. United States, the
attorney-client privilege covers communications between a company’s employees and
legal counsel that “concern[] matters within the scope of the employees’ corporate duties,”
where the employees are aware that information in the communications will assist counsel
in providing legal advice to the corporation. See Upjohn Co. v. United States, 449 U.S.
383, 394 (1981).3 However, to maintain the fourth prong of the attorney-client test—
confidentiality—such communications can only be distributed (1) “on a ‘need to know’
basis” or (2) “to employees that were ‘authorized to speak or act’ for the company.” Fed.
Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 147 (D.C. Cir. 2002) (quoting Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)). Thus, as this
Court has previously held in this case, “the circulation of information to persons who are
not essential to the transmittal of the legal counsel vitiates the privilege.” Melendres v.
Arpaio, 2015 WL 13649412, at *3 (D. Ariz. Apr. 2, 2015) (Doc. 986) (citing United States
v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996)); see also Cohen v. Trump, 2015 WL 3617124,
at *15 (S.D. Cal. June 9, 2015) (“[A] communication loses its protection if . . . disseminated
beyond the group of corporate employees who have a need to know in the scope of their
3 This formulation applies to communications between employees and counsel for a
governmental entity, like MCSO. See United States v. Jicarilla Apache Nation, 564 U.S.
162, 169 (2011) (“The objectives of the attorney-client privilege apply to governmental
clients.”); Melendres v. Arpaio, 2015 WL 13649412, at *3 (D. Ariz. Apr. 2, 2015)
(“Federal law recognizes governmental entities as ‘clients’ for purposes of invoking
attorney-client privilege over communications between the entity and a government
lawyer.” (citation omitted)).
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corporate responsibilities.” (citing string of cases)).4
The Independent Investigator has not requested any direct communications between
MCSO employees and legal counsel. Instead, she requested investigative files or
communications between non-attorney employees of MCSO. (Doc. 3271 at 5). Because
MCSO contends that the documents withheld on the basis of the attorney-client privilege
involve legal advice sent from “counsel from Jones, Skelton, & Hochuli” (Doc. 3261 at 9)
and “attorneys appointed by the County Attorney, including her Deputy County Attorneys”
(id. at 10), this necessarily implies that such communications from counsel were circulated
among non-attorney employees within MCSO. It is thus MCSO’s burden5 to demonstrate
that the communications were sent to persons who had a “need to know” the information
in the scope of their duties, or who were otherwise essential to such transmittal—else,
MCSO has waived the privilege through dissemination.
Assuming that MCSO has met these initial burdens, the third question is whether
the Independent Investigator fills the role of a PSB investigator and, fourth, whether her
receipt of potentially privileged materials would still maintain the confidentiality of the
withheld documents as being relevant and necessary to a PSB investigation in light of
MCSO’s structure. The Court finds that she does stand in the shoes of a PSB investigator.
And the MCSO provides no evidence that the individual documents at issue were not
necessary to the Investigator’s investigation, preferring instead to argue that Ms. Jaffer
does not stand in the shoes of the PSB. As such, it must now turn the documents over.
3. The Independent Investigator Fills the Role of a PSB Investigator.
As the Court previously explained in a recent Order, see Melendres v. Sheridan,
2025 WL 3013426 (D. Ariz. Oct. 27, 2025) (Doc. 3292), the Independent Investigator
stands in the shoes of PSB as she conducts her investigation. (Doc. 3292 at 3-4). The
4 Moreover, there is no protection for disclosure of the “underlying facts” in an
otherwise protected communication. Upjohn, 449 U.S. at 395 (1981).
5 MCSO, as the party asserting the privilege, has the burden of proving
confidentiality. United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011); Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).
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arguments to the contrary marshalled by the Sheriff are all clearly refuted by the Court’s
previous orders. The Independent Investigator is duty-bound to comply with all applicable
MCSO policies and procedures, and MCSO is required to cooperate with the Independent
Investigator in the same way that it would cooperate with a PSB investigator conducting
an internal affairs investigation.
a. The Independent Investigator’s Duties are the Same as Those
Assigned to a PSB Investigator.
MCSO policy specifically allows for situations where an outside investigator can
investigate a complaint when the PSB Commander identifies a conflict or potential conflict.
See MCSO Internal Investigation Policy GH-2 § 4(D).6 It states that “the PSB Commander
or the Chief Deputy may refer administrative misconduct investigations to another law
enforcement agency or may retain a qualified outside investigator to conduct the
investigation.” Id. § 4(D)(5) (emphasis added). When the assignment is made to an
Independent Investigator, the Independent Investigator is to “conduct the investigation in
compliance with the best investigative practices and in compliance with the processes and
standards set forth in the Court’s previous orders and which govern the operations of
MCSO’s Professional Standards Bureau.” (Doc. 3191 ¶ 4). Further, “[t]o the extent
possible,” the Independent Investigator “shall conduct the investigation . . . in compliance
with the processes and standards . . . which govern the operations of the MCSO’s
Professional Standards Bureau” (id.), and further has all of the immunities that pertain to a
PSB investigator.
MCSO argues that since the Independent Investigator is an “outside” investigator,
“[h]er very role necessarily puts her in a different position than the PSB itself.” (Doc. 3261
6 MCSO Internal Investigation Policy GH-2 covers the subject of Internal
Investigations. It “establish[es] guidelines and procedures for accepting, processing, and
investigating complaints of employee misconduct.” MCSO Internal Investigation Policy
GH-2, at 1. On October 12, 2023, the Court ordered that MCSO adopt GH-2 as a new
policy (see Doc. 2938), given the Court’s requirement in the Third Supplemental Injunctive
Order that the PSB, under the authority of the Monitor, create and submit new policies and
procedures related to MCSO’s internal investigations. (Doc. 2830 ¶ 348).
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at 4). But it does not say why. The Independent Investigator has to conduct her
investigation “in compliance with the processes and standards which govern the operations
of the PSB” (Doc. 3191 ¶ 4), and an outside presence is only necessitated by investigative
conflicts within the MCSO itself. It is presumably true, as the Independent Investigator
notes, that since “the Independent Investigator is not employed at MCSO, the Independent
Investigator is required to coordinate with a liaison at the MCSO instead of simply
requesting documents related to the investigation directly from MCSO employees or
directly noticing interviews with employees.” (Doc. 3271 at 15). The Court nevertheless
ordered MCSO’s cooperation with the investigation, and MCSO was instructed to insure
that the Independent Investigator was given “timely and complete access to MCSO
documents, office holders, employees, information, and resources.” (Doc. 3191 ¶ 7). The
Independent Investigator collects facts and prepares reports setting forth the basis of any
determinations of recommended charges. (Id. ¶¶ 12-14).
Moreover, MCSO selectively quotes from the Court’s Order and mischaracterizes
the Independent Investigator’s authority, claiming that “she can even ‘depart from the
procedures set forth in [the] Order.’” (Doc. 3279 at 7 (quoting Doc. 3191 ¶ 14)). Not so.
Paragraph 14 of the Court’s Order states in full:
To the extent the Independent Investigator’s recommended
findings or discipline depart from procedures set forth in this
Order, or from MCSO’s disciplinary matrices, the Independent
Investigator shall explain the basis for the recommended
departures in writing.
(Doc. 3191 ¶ 14 (emphasis added)). Paragraph 14 refers to departures from procedures in
the Order relating to recommended findings or discipline (see, e.g., id. ¶¶ 5, 6, 12, 13), not
departures from PSB investigative practices. This, too, is consistent with MCSO practice.
(See Doc. 1765 ¶ 220(k) (MCSO’s disciplinary matrices “require that any departures from
the discipline recommended under the disciplinary matrices be justified in writing and
included in the employee’s file.”)). The Independent Investigator, acting as a PSB officer
here, is required to comply with MCSO investigative policy, as required under the Court’s
Order.
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b. The Independent Investigator Does Not Have the Power to
Impose Punishment on the Principal(s) in Her Investigation.
Though MCSO likens the Independent Investigator to a “law-enforcement official[]
with power to punish the underlying conduct” (Doc. 3261 at 4 (quoting United States v.
Reyes, 239 F.R.D. 591, 603 (N.D. Cal. 2006)), this analogy is inapposite.7 The Independent
Investigator does not have “the ability to impose punishment on the principals” in her
investigation. (Contra id. at 3). Instead, the Independent Investigator issues
“recommended findings or discipline.”8 (Doc. 3191 ¶ 14 (emphasis added)). The
Independent Investigator does not actually impose any discipline—any discipline would
be imposed by the Independent Disciplinary Authority, as the Court has previously done
for internal affairs investigations that have been outsourced to an independent investigator.
(See Doc. 3297; Doc. 1765 ¶¶ 296, 320-37). Thus, while the Independent Investigator does
have the “sole authority to determine whether to pursue charges” (see Doc. 3261 at 4), that
does not vest her with the “power to punish.” (Contra id.).
This is in line with the procedures set forth for a PSB investigator. For example, if
the PSB Commander makes a preliminary determination that serious discipline should be
imposed on a principal, the Appointing Authority “shall conduct a [Pre-Determination
Hearing] and will provide the employee with an opportunity to be heard.” MCSO Internal
Investigation Policy GH-2 § 8(C)(1)(c)(2).9 The Court has similarly provided for the
7 MCSO points out that, “for example, in securities cases, courts have explained that
disclosures to the government are a waiver of the privilege, even if the disclosure was for
the express purpose of sharing evidence outside of a formal legal proceeding.” (Doc. 3261
at 4 (first emphasis added) (citing Reyes, 239 F.R.D. at 603)). But the Independent
Investigator is not acting in the capacity of “the government” here (i.e., she is not stepping
into the shoes of a Securities and Exchange Commission official or a Department of Justice
official—the relevant “government” officials in Reyes). She is instead acting as a member
of MCSO itself as a PSB investigator. The reasoning in Reyes, thus, is of little persuasive
value here.
8 The Independent Investigator is to make charging determinations “in accord with
how such determinations would be made by a responsible internal affairs unit within a
police agency of a similar size to the MCSO.” (Doc. 3191 ¶ 12).
9 A Pre-Determination Hearing “allows an employee, regardless of employment
status, who is being considered for serious discipline, to address the appointing authority
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principal(s) of IA 2025-0185 an opportunity to be heard in front of an Independent
Disciplinary Authority, should the Independent Investigator determine to pursue charges.
(See Doc. 3297). The Independent Disciplinary Authority, not the Independent
Investigator, makes determinations on liability and discipline for “all charges of
misconduct,” “regardless of whether such preliminary charges are for minor or serious
discipline.”10 (Doc. 1765 ¶ 317 (emphasis added); see also Doc. 3191 ¶ 4 (incorporating
“the processes and standards set forth in the Court’s previous orders” for Ms. Jaffer’s
investigation)).
c. The Independent Investigator Has Authority Separate From the
Monitor.
The Independent Investigator’s role is not analogous to that of the Monitor. (Contra
Doc. 3261 at 2-3, 7-8; Doc. 3279 at 4-5). At a status conference on September 12, 2025,
the Court remarked that “if there was no distinction between Ms. Jaffer and the monitor,
we wouldn’t have appointed Ms. Jaffer.” (Doc. 3251 at 17:3-4). The Court’s Order
appointing Ms. Jaffer as Independent Investigator makes it clear that the Independent
Investigator and Monitor have separate, independent authorities. (Doc. 3191 ¶¶ 7-9).
MCSO advances an argument that the Court’s Order appointing Ms. Jaffer as
Independent Investigator limits her to the “same access to MCSO as the Monitor.” (Doc.
3261 at 2). Simultaneously, MCSO also avers that production of documents to the
Independent Investigator would “create[] an end-run around the Court’s [previous] Order
on privilege” that entitles MCSO to withhold documents from the Monitor for privilege.
(Id. at 7-8 (citing Doc. 606 ¶ 146 (stating that “Defendants may withhold from the Monitor
any documents or data protected by the attorney-client privilege”))). Neither are true.
First, while the Court’s previous Order states that the Independent Investigator
“shall have the same access to cooperation and information from all parties, specifically
regarding the intended discipline.” MCSO Internal Investigation Policy GH-2, at 6.
10 Serious misconduct, if sustained, results in discipline of suspension, demotion, or
dismissal, whereas minor misconduct, if sustained, results in discipline or corrective action
less severe than a suspension. MCSO Internal Investigation Policy GH-2, at 5.
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including the MCSO as have been provided the Monitor in this lawsuit by this Court’s
order” (Doc. 3191 ¶ 2), this “access to cooperation and information” provides a floor—
rather than a ceiling—on the level of cooperation expected from MCSO with regard to the
Independent Investigator. For instance, elsewhere in the Court’s Order, the Court instructs
the Independent Investigator to “conduct the investigation in compliance with the best
investigative practices and in compliance with the processes and standards set forth in the
Court’s previous orders and which govern the operations of MCSO’s Professional
Standards Bureau.” (Id. ¶ 4). MCSO is also required to cooperate with the investigation.
(Id. ¶ 7 (“The Sheriff shall insure that the Independent Investigator and each of the
investigators or members of the investigators staff are given timely and complete access to
MCSO documents, office holders, employees, information, and resources in conducting
the investigation(s), making reports, and in pursuing other activities under this Order.”)).
Thus, situations may arise where MCSO would be required to cooperate and provide access
to documents to the Independent Investigator, who is acting as a PSB officer, that MCSO
otherwise would not be required to provide to the Monitor and his team.
And second, while the Monitor does retain “the same supervisory authority over the
results of the investigation, as he does over all other PSB investigations” (id. ¶ 9 (emphasis
added)), the Court clarified that the Monitor “may not use information arising from the
PSB investigation, unless the Monitor independently uncovered the information in his own
inquiries.” (Id.). In short, the Monitor has independent investigative authority. In this
capacity, the MCSO may appropriately invoke the attorney-client privilege against
production of materials sought by the Monitor. Subsequently, however, the Monitor also
received temporary authority as the Constitutional Policing Authority (“CPA”), which
conferred on him the authority over the results of all investigations and discipline,
including both discipline conducted by the PSB and through all outside processes. See
Melendres v. Skinner, 113 F.4th 1126, 1140 (9th Cir. 2024) (Melendres V) (holding that
“the district court has inherent equitable authority to assign the CPA’s responsibilities to
the Monitor”). Nevertheless, the Monitor may not use information arising from the PSB
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investigation unless he independently discovered it. (Doc. 3191 ¶ 9). Thus, to the extent
the Monitor discovers information in investigations under his own authority, there would
be at the least questions about waiver. Further, the Independent Investigator has assured
the Court that she does not “have any intention of disclosing any documents containing
privileged information to the Monitor or any other party,” and that “she would seek
guidance from the [Maricopa County Attorney’s Office], or in camera review by the Court,
before taking any action which may risk a waiver of privilege.” (Doc. 3271 at 21). There
is accordingly no risk of an “end-run” around the Court’s previous Order entitling MCSO
to withhold documents from the Monitor for privilege. (See also Doc. 3251 at 17:12-13
(“Ms. Jaffer has got to be careful not to waive the privilege too. She is acting as a PSB
person.”)). MCSO’s argument thus lacks merit. In any event, such issues do not present
themselves here, because the MCSO has failed to demonstrate that any of its withheld
documents are even subject to the attorney-client privilege.
d. The Independent Investigator, and Her Staff, Are Expected to
Comply with MCSO Policy Regarding Confidentiality.
MCSO raises another concern with the Independent Investigator’s status, remarking
that “Ms. Jaffer is entitled to hire any number of additional staff, with no discussion of how
that staff will interact with documents or whether they, too, are meant to be simply
additional members of PSB.” (Doc. 3261 at 4). This, too, is not a legitimate concern. The
Independent Investigator (and her staff, as an extension of her position) is expected to
adhere to MCSO policy that requires PSB to keep information regarding employee
misconduct investigations “as confidential as possible.” See MCSO Internal Investigation
Policy GH-2 § 21 (“All investigations shall be securely maintained.”).
e. The Independent Investigator’s Authority to Identify Other
Matters for Investigation or Reinvestigation is Consistent with
Requirements for the PSB.
Finally, MCSO argues that the Independent Investigator’s role goes beyond that of
the PSB because she “can recommend whether to open additional investigations or
reinvestigations.” (Doc. 3261 at 4). But this, again, is consistent with what happens in a
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PSB investigation. “Investigators shall investigate any evidence of potential misconduct
uncovered during the course of the investigation, regardless of whether the potential
misconduct was part of the original allegation.” MCSO Internal Investigation Policy GH-
2 § 5(C) (emphasis added).
The fourth question, accordingly, is whether the Independent Investigator, standing
in the shoes of a PSB investigator, can receive privileged materials from MCSO, without
the waiver of such privilege. She can under certain situations.
4. In Some Cases, Disclosure of Privileged Materials to the Independent
Investigator Does Not Constitute Waiver by MCSO.
MCSO advances the position that even if the Independent Investigator were a
member of the PSB, disclosure of privileged documents would still constitute waiver of
the privilege by MCSO. (Doc. 3261 at 5; see also Doc. 3251 at 17:14-19 (counsel for
Maricopa County asserted that he and MCSO counsel “were trying to think of a situation
where attorney-client materials would go to the PSB, and we could not come up with one
of those situations where that actually occurred”)). However, MCSO fails to identify a
single policy or procedure stating or indicating that PSB investigators are categorically
barred from accessing potentially privileged information if such information is relevant for
their investigation. What’s more is that counsel from the Maricopa County Attorney’s
Office (“MCAO”), in email communications with MCSO and the Internal Investigator,
stated that “[a]s for the normal practice for PSB, in checking with PSB it does not appear
that this issue of attorney client privileged or work product protected communication has
ever been an issue they have dealt with.” (Doc. 3271 at 27).
Because the Independent Investigator stands in the shoes of a PSB investigator, the
“need-to-know” limitation to protect confidentiality—and subsequently, the attorney-client
privilege—may also be extended to the Independent Investigator. See In re Bieter Co., 16
F.3d 929, 939 (8th Cir. 1994) (holding that confidentiality, and thus attorney-client
privilege, was preserved where communications were not disseminated beyond “the
functional equivalent of an employee of the client” “who, because of the structure of the
client’s operations, need[ed] to know [their] contents”); Graf, 610 F.3d at 1159 (adopting
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Bieter’s principles in the Ninth Circuit); see also Restatement (Third) of the Law
Governing Lawyers § 73 cmt. g (2000) (“The need-to-know limitation . . . permits
disclosing privileged communications to other agents of the organization who reasonably
need to know of the privileged communication in order to act for the organization in the
matter.”).
There may be situations where the Independent Investigator, acting in the scope of
her responsibilities as an equivalent-PSB officer, would have a need to know the contents
of a privileged communication transmitted to a principal, witness, or person-of-interest in
her investigation. For example, such communications could be relevant to establish
responsibility for the pertinent misconduct. It may be the case that the principal acted at
the direction of, or pursuant to advice from, counsel in taking a certain course of action—
which would tend to mitigate the principal’s own culpability in the purported misconduct.
Separately, however, disclosure of any privileged communications to the
Independent Investigator does not always mean that such communications will remain
privileged upon disclosure. If the privilege in the communication has not been waived and
is not relevant to any part of the Investigator’s inquiry, then its disclosure to the Investigator
would not be appropriate. The Independent Investigator discusses four cases to support
her argument that disclosure of potentially privileged documents during an internal
investigation would categorically not pose any issues of waiver of the privilege by MCSO.
(Doc. 3271 at 13-16 (citing In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir.
2014); In re Allen, 106 F.3d 582 (4th Cir. 1997); Gibson v. Reed, 2019 WL 2372480 (W.D.
Wash. June 5, 2019); Davis v. City of Seattle, 2007 WL 4166154 (W.D. Wash. Nov. 20,
2007))).
But these cases stand for the narrower proposition that a company can invoke the
attorney-client privilege to protect statements made by and to internal investigators if the
investigators are (1) attorneys, or non-attorney agents of attorneys, (2) acting as the
functional equivalent to an employee with the company, and (3) providing legal advice to
the company. See In re Kellogg, 756 F.3d at 758 (“[C]ommunications made by and to non-
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attorneys serving as agents of attorneys in internal investigations are routinely protected by
the attorney-client privilege.”); In re Allen, 106 F.3d at 603 (“The relevant question is not
whether [outside counsel] was retained to conduct an investigation, but rather, whether this
investigation was related to the rendition of legal services.” (internal quotation marks and
citation omitted)); Gibson, 2019 WL 2372480, at *2 (holding that attorney-client privilege
protected communications by and to the “functional equivalent” of an employee of
defendant-company where functional employee “was engaged in offering confidential
legal advice” to defendant); Davis, 2007 WL 4166154, at *4 (similarly holding that
attorney-client privilege protected confidential communications sent by “functional
equivalent of an employee” of defendant-company that were made “for the purpose of
[defendant] securing legal advice from its attorneys”).
Here, in contrast, the Independent Investigator does not argue that the Independent
Investigator provides legal advice to MCSO. It is not the case that a PSB investigator
necessarily provides legal advice when investigating serious misconduct—there is no
requirement that PSB investigators must be attorneys. The Court declines to hold that the
Independent Investigator provides legal advice to MCSO.
Thus, MCSO’s burden here is three-fold. First, MCSO must make a prima facie
case that the information in the withheld documents is covered by the attorney-client
privilege. Second, because the requested communications are between non-attorney
MCSO employees, MCSO must demonstrate that the transmittal of any legal advice,
summarily described by MCSO in its briefing (see Doc. 3261 at 8-9), was to employees
who had a “need to know” the content of such communications while acting in the scope
of their duties for MCSO—else, the attorney-client privilege does not extend to these
communications. And third, MCSO must also demonstrate that the Independent
Investigator would not have a separate “need to know” the content in the privileged
communications in order to properly effectuate her internal affairs investigation. The
MCSO has made none of these showings.
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B. The Work-Product Protection.
MCSO and the Independent Investigator primarily devote their arguments to the
attorney-client privilege and do not address whether the work-product protection involves
a different set of rules when determining waiver. Because the work-product protection is
a “qualified immunity protecting from discovery documents and tangible things prepared
by a party or his representative in anticipation of litigation,” there could be situations where
a party can assert the work-product protection but not the attorney-client privilege, and vice
versa.11 Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Fed.
R. Civ. P. 26(b)(3)); see also Melendres, 2015 WL 13649412, at *6.
The “disclosure of work product to a third party does not waive the protection unless
such disclosure is made to an adversary in litigation or ‘has substantially increased the
opportunities for potential adversaries to obtain the information.’” United States v.
Sanmina Corp., 968 F.3d 1107, 1121 (9th Cir. 2020) (quoting 8 Wright & Miller’s Federal
Practice & Procedure § 2024 (3d ed. 2020)). If disclosure to a third-party does not waive
the work-product protection, then disclosure to the Independent Investigator, who is acting
as a PSB investigator, would not waive the protection either. The relevant inquiry, as
outlined by the Ninth Circuit, is whether the Independent Investigator qualifies as either
(1) a potential “adversary” or (2) a “conduit to an adversary” to MCSO. Id. (quoting United
States v. Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 2010)). The Independent Investigator
does not meet either definition.
1. The Independent Investigator is Not a “Potential Adversary.”
The Independent Investigator is not a “potential adversary” to MCSO in the context
of the work-product dispute described by MCSO. The Investigator and MCSO share a
common purpose—they both “ensure[] that MCSO employees adhere to the highest ethical
standards.” Sheriff’s Office, Maricopa Cnty., Ariz.,
https://www.maricopacountyaz.org/Sheriffs_Office.html (last visited Nov. 7, 2025). They
11 However, like the attorney-client privilege, the party asserting the work-product
protection bears the burden of establishing it. Conoco Inc. v. U.S. Dep’t of Justice, 687
F.2d 724, 728 (9th Cir. 1982).
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both “handle[] internal investigations and complaints regarding officer conduct, ensuring
accountability and transparency within the department.” Id.
The question is “not whether [the Independent Investigator] could be [MCSO’s]
adversary in any conceivable future litigation, but whether [the Independent Investigator]
could be [MCSO’s] adversary in the sort of litigation the work-product documents
address.” See id. (quoting Deloitte, 610 F.3d at 140) (citation modified) (emphasis added).
MCSO has described the draft work product at issue as “several emails that contain draft
comments and draft reports that were eventually filed in this case.” (Doc. 3261 at 9).
In Sanmina, the Ninth Circuit held that disclosure of memoranda authored by a
corporation’s in-house counsel to an outside law firm that was retained to prepare a
“valuation report” in support of a tax position asserted by the corporation did not constitute
waiver of the work-product protection. Since the memoranda were prepared in anticipation
of a dispute between the corporation and the Internal Revenue Service (IRS), not between
the corporation and the outside law firm, they “would likely be irrelevant in any potential
dispute between [corporation] and [outside law firm].” Sanmina, 968 F.3d at 1122.
Similarly, in Deloitte, the D.C. Circuit held that a taxpayer’s disclosure of work product to
an independent auditor did not waive the work-product protection because the documents
were prepared in anticipation of a dispute with the IRS, not with the independent auditor.
Deloitte, 610 F.3d at 140.
Likewise, here, MCSO describes attorney work product that was seemingly
prepared in anticipation of a dispute with the Plaintiff class, or the United States—not the
Independent Investigator. (See Doc. 3261 at 9 (“several emails that contain draft comments
and draft reports that were eventually filed in this case” and “actual drafts and commentary
of items eventually submitted to the Court” (emphasis added))). MCSO has provided no
indication that that the documents withheld on the basis of work-product protection were
prepared in anticipation of a dispute with the Independent Investigator. The Independent
Investigator is not a “potential adversary” in this context.
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2. The Independent Investigator is Not a “Conduit to an Adversary.”
The Independent Investigator is also not a “conduit to an adversary” to MCSO.
There are two discrete inquiries here—(1) “whether the disclosing party has engaged in
self-interested selective disclosure by revealing its work product to some adversaries but
not to others” and (2) “whether the disclosing party had a reasonable basis for believing
that the recipient would keep the disclosed material confidential.” Sanmina, 968 F.3d at
1121 (quoting Deloitte, 610 F.3d at 141).
First, there is no indication that MCSO would engage in “self-interested selective
disclosure” by providing work product to the Independent Investigator, since the
Independent Investigator is not an adversary to MCSO, as described above. See id. at 1123;
Deloitte, 610 F.3d at 142. There is also no indication that MCSO has revealed the described
work product to any of its “adversaries” (in the work-product context), such as the Plaintiff
class. The first inquiry thus poses no concerns of waiver by disclosing the documents to
the Independent Investigator.
Second, while MCSO expresses concerns that the Independent Investigator will
share the disputed documents with the Monitor (see Doc. 3261 at 7 (claiming that it is
“likely that the Independent Investigator would give [the documents] the Monitor if
requested”)), such concerns are not reasonable. The Monitor “may not use information
arising from the PSB investigation, unless the Monitor independently uncovered the
information in his own inquiries.” (Doc. 3191 at ¶ 9). The Independent Investigator has
stated that she has no “intention of disclosing any [of the disputed] documents . . . to the
Monitor or any other party.” (Doc. 3271 at 21). The Court has also previously remarked
that the Independent Investigator “has got to be careful” with any disclosed documents
because “[s]he is acting as a PSB person.” (Doc. 3251 at 17:12-13). And as discussed
previously, the Independent Investigator is expected to adhere to the MCSO policy on
confidentiality. See MCSO Internal Investigation Policy GH-2 § 21.
Accordingly, as a general matter, MCSO is not entitled to assert the work-product
protection as a reason to withhold documents from the Independent Investigator. Such
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disclosure would not constitute waiver of the protection by the MCSO, because the
Independent Investigator is neither a “potential adversary” nor a “conduit to an adversary”
to MCSO in the work-product context. Instead, the protection is only available to MCSO
in the narrow context where MCSO can sufficiently demonstrate that the work product
requested was created specifically in anticipation of a dispute with the Independent
Investigator herself.
C. MCSO Has Not Met Its Required Burden to Withhold the Requested
Documents.
The Independent Investigator issued her document request on August 21, yet MCSO
submitted its second supplemental privilege log, described by the Independent Investigator
as “flawed,” on October 3—a period spanning 44 days. (Doc. 3271 at 9). MCSO’s briefing
thereafter did not discuss individual documents as the Court directed it to, but dealt with
the general question whether disclosure to the Investigator would destroy the privilege. A
PSB investigation—and consequentially, the Independent Investigator’s investigation—is,
in normal circumstances, a time-limited inquiry that generally must be completed within
180 calendar days of the initiation of a complaint. (Doc. 3076 ¶ 204); see also A.R.S. §
38-1110 (“An employer shall make a good faith effort to complete any investigation of
employee misconduct within one hundred eighty calendar days . . . .”); (but see Doc. 1765
¶ 337(b)). At this late juncture, MCSO has not met its burden in establishing that the
withheld documents are privileged or protected, or that disclosure to the Independent
Investigator would waive any privilege or protection. The Independent Investigator
previously identified a number of deficiencies with MCSO’s privilege log, “including a
lack of Bates stamps, insufficient information to determine whether the withheld document
involves a confidential communication between an attorney and client, a failure to provide
sender and recipient information, and, in many cases, the date of the communication, a
failure to specify the document being withheld, and multiple errors within the log itself.”
(Doc. 3271 at 19 n.9). The Independent Investigator notes that “[w]hile MCAO has
corrected some of these deficiencies, there are still multiple unresolved deficiencies which
make determining whether a document is privileged impossible.” (Id.). MCSO disputes
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this characterization of its privilege log, stating that the characterization was made “without
any consultation or factual support.” (Doc. 3279 at 8). However, MCSO has made no
showing that it did provide sufficient information to the Independent Investigator for the
purpose of evaluating MCSO’s assertions of privilege and protection—a task that is
MCSO’s, not the Independent Investigator’s, burden. In such circumstances, in which the
Court has ruled on all the arguments raised by the MCSO, the MCSO must now produce
the documents.
D. The Court Will Enter a Rule 502(d) Order to Protect Any Inadvertent
Disclosures of Privileged or Protected Documents.
Finally, the Independent Investigator requests the Court to enter an Order under
Federal Rule of Evidence 502(d) to alleviate the risk of waiver with relation to the
disclosure of privileged or protected documents. (Doc. 3271 at 17). The rule states, in full:
Controlling Effect of a Court Order. A federal court may
order that the [attorney-client] privilege or [work-product]
protection is not waived by disclosure connected with the
litigation pending before the court — in which event the
disclosure is also not a waiver in any other federal or state
proceeding.
Fed. R. Evid. 502(d). The Independent Investigator contends that “[a] Rule 502(d) order
may address not only inadvertent waiver but also instances in which intentional disclosure
will not result in waiver.” (Doc. 3271 at 17 (quoting The Sedona Conference, The Sedona
Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 95, 130
(2015) (emphasis added))). The Independent Investigator does not cite any cases in support
of this proposition, however.
Orders in this District have generally constrained the reach of Rule 502(d) to
situations involving inadvertent waiver. See, e.g., Pulte Home Co. LLC v. Colony Specialty
Ins. Co., 2025 WL 1169162, at *2 (D. Ariz. Apr. 22, 2025) (stating that 502(d) “avoids the
need to litigate whether an inadvertent production was reasonable”); Joovv Inc. v. Mito Red
Light Inc., 2023 WL 12117442, at *5 (D. Ariz. Oct. 30, 2023) (“Pursuant to Fed. R. Evid.
502(d), the inadvertent production of Litigation Material subject to the attorney-client
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privilege or the attorney work-product doctrine will not waive the attorney-client privilege
or the attorney work-product doctrine.”); Extremity Med., LLC v. Fusion Orthopedics,
LLC, 2023 WL 12117441, at *9 (D. Ariz. May 3, 2023).
Thus, the Court is not yet inclined to hold that Rule 502(d) applies to the intentional
disclosure of privileged and protected materials, where such disclosure would normally
result in waiver. See also The Sedona Conference, The Sedona Conference Commentary
on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 Sedona Conf. J. 1, 25
n.53 (2022) (acknowledging a difference of opinion among federal courts as to whether
Rule 502(d) is limited to inadvertent disclosures or can be extended to intentional
disclosures). The Court will, however, enter a Rule 502(d) Order to at least protect the
inadvertent production of any privileged and protected materials made by MCSO to the
Independent Investigator, where such disclosure would ordinarily result in waiver of any
privilege or protection by MCSO. This will help to streamline any disputes if MCSO later
learns that it accidentally disclosed privileged or protected materials.12
CONCLUSION
For all of the reasons set forth above,
IT IS THEREFORE ORDERED that MCSO, as expeditiously as possible, turn
over the withheld documents, as described by MCSO in Doc. 3261 pp. 9-10, to the
Independent Investigator because MCSO has not met its burden in establishing that the
withheld documents are privileged or protected, or that disclosure to the Independent
Investigator would waive any privilege or protection.
IT IS FURTHER ORDERED that if MCSO again seeks to assert the attorney-
client privilege as a basis to withhold documents from the Independent Investigator, MCSO
must make a prima facie showing of attorney-client privilege for each asserted document,
demonstrate that MCSO did not waive the privilege by circulating the documents, and
12 MCSO admits that a Rule 502(d) order would apply in “other cases,” but argues
that it would “not protect and preserve [MCSO’s] rights in this case.” (Doc. 3279 at 10).
This is contrary to the text of the rule, which clearly states that such an order would protect
“disclosure connected with the litigation pending before the court.” Fed. R. Evid. 502(d).
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show that the Independent Investigator does not have a legitimate need to know the
contents within the documents in the course of her investigation.
IT IS FURTHER ORDERED that if MCSO again seeks to assert the work-product
protection as a basis to withhold documents from the Independent Investigator, MCSO
must make a prima facie showing that the requested documents qualify as attorney work-
product and were created in anticipation of a dispute with the Independent Investigator.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Evid. 502(d), inadvertent
disclosure by MCSO of privileged or protected documents to the Independent Investigator
and her team during the course of IA 2025-0185, or any other internal affairs investigation
routed from the PSB to the Independent Investigator by the Monitor, does not constitute
waiver by MCSO of the attorney-client privilege or the work-product protection of those
inadvertently produced documents in all litigation pending before this Court, as well as any
other federal or state proceeding. Rule 502(d) does not require any party agreement, and
it avoids the need to litigate whether an inadvertent production was reasonable.
Dated this 7th day of November, 2025.
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