We’ve been waiting for a long time to see any number of items talked about, but never delivered by Mike Zullo. I wrote about that in my first article titled, “Waiting for Zullo” back in 2013 where I listed 34 such items, and the answers are still not forthcoming.
One hoped, perhaps too optimistically, that some of the answers might come from Mike Zullo’s deposition scheduled for next Wednesday, October 7. The subpoena of Zullo also requested all documents in his possession related to investigations of public officials on behalf of Arpaio and all correspondence with a list of individuals, starting December 23, 2011 and extending to the present. Arpaio’s defense team has moved, the day before the documents were due, to quash that subpoena. The motion to quash argues that the production of documents is a hardship for Mr. Zullo, and provides him with insufficient time. Defense also claims that the subpoena is overly broad, noting that the subpoena extends back roughly 2 years prior to any involvement with Dennis Montgomery (which we now know thanks to the subpoena started in the Fall of 2013). The Defense claims that it will take the full-time activity of Mike Zullo “weeks” at his own expense to respond with all the subpoena asks for. The subpoena was served on Mr. Zullo on September 24 evening and demands delivery of the documents by September 30. The motion to quash states that the subpoena was issued “on late September 25” but that was the day that the attorneys were served, not Zullo. Indeed the motion to quash states:
Plaintiffs’ filed three subpoenas on September 25, 2015 with this court, but have not indicated that they have served Mr. Zullo.
In fact, the subpoena filed on September 25 with the Court clearly shows service of Mr. Zullo on the preceding day (see page 37).
While not argued in the subpoena, Arpaio’s counsel takes a shot at Plaintiffs in a footnote:
In addition, Plaintiffs have known for months about Mr. Zullo and his role with MCSO in this action, but failed to ever serve a subpoena on him. Plaintiffs apparently believe they are entitled to rolling discovery in this case with absolutely no limitations or regards to Defendants’ rights. Indeed, Plaintiffs’ Notice of Subpoenas does not provide any reason as to why this information is relevant let alone why there is good cause that it should be discoverable now, or why it should be produced on such an expedited timetable. Plaintiffs had ample opportunity to discover their requested information, but failed to do so, and now seek to recover this information when proceedings are ongoing, in a further attempt to continue their “trial by fire” litigation tactics.
The Zullo subpoena requests documents in “native format.” Native format is the format in which the information is usually maintained on the producing party’s system. A problem with such raw data is that individual items, such as emails, cannot easily referenced (by a the “Bates number” we keep hearing about in testimony), cannot be redacted, cannot be marked confidential, and cannot be viewed without the application software that produced it; however, it is the format with the least cost to produce. An email folder may consist internally on the computer as a single file that could be copied to a flash drive. Paper documents have to be scanned, but who uses paper any more? OK, Arpaio only has a typewriter. Never mind.
I cannot count the number of times in my IT career that I asked “what format do you want it in?” in response to requests for information. I would suggest to Zullo that he take the subpoena literally, and just dump the files. If Zullo’s information is not well-organized, then it could take a fair amount of time to separate what is responsive to the subpoena vs. what is not. Considering how long it has taken Hillary Clinton to respond with her emails, perhaps 5 days is a bit short of the requisite time for Mike Zullo to sort through his, quaquaquaqua.
In court documents filed yesterday, Plaintiffs have modified the Mike Zullo subpoena changing the start date for the documents requested from December 23, 2011, to September 1, 2013. Also the “catch all” language referring to “any employee of Maricopa County Sheriff’s Office” is deleted, as well as emails to and from Brian Sands. There is also an updated delivery deadline of October 5, 2015. Plaintiffs indicated that the earlier date was a mistake and that Mr. Zullo was re-served with the correct date on September 25. Plaintiffs defend the “any elected official” language, saying:
Documents showing any discussion relating to this litigation or investigation by Mr. Zullo or others, targeting any judge or elected official, during the requested time frame, are also material to this Court’s determination of whether the retention of Dennis Montgomery reflects Sheriff Arpaio’s use of Mr. Zullo to target and investigate the Sheriff’s perceived opponents, which will case light on the activities of Mr. Zullo relative to this Court and case.
Plaintiffs observe that Zullo may have emails from certain MCSO staff that were not turned over by those individuals previously, but perhaps should have been.