Judge not buying City of Tucson’s document claims, orders new trial

tucson-city-hallOn September 05, 2014, Pima County Superior Court Judge Christopher Staring ruled in the matter of Tucson resident Cecilia Cruz’s latest motion for new trial in the lawsuit against the City of Tucson’s former manager Richard Miranda. Cruz filed the suit last year to obtain the documents related to the proposed sale of El Rio Golf Course.

Cruz sought a new trial concerning attorney’s fees and costs, and filed a supplemental application for attorney’s fees. The Court granted Cruz’s current motion for new trial “as it pertains to the issue of attorney’s fees and costs in the context of additional sanctions pursuant to A.R.S. § 12- 349(A),” wrote Judge Staring.

The judge ruled in favor of Cruz again because he found that an “inquiry concerning sanctions is warranted because newly discovered evidence and statements of counsel indicate that COT and/or its attorneys have unreasonably expanded and delayed these proceedings to an extent greater than previously appreciated. Specifically, after the May 16 Ruling, COT produced at least 204 e-mails or attachments that had not been previously produced. At least 130 of these e-mails and attachments were created no later than May 2013. Thus, most, if not all, of the newly produced documents already existed when COT made the July 8, 2013 representation, which greatly limited the scope of the July 23, 2013 trial.”

The judge affirmed that the City “has misrepresented to the Court that it has fulfilled its obligation to produce documents in response to her request.”

The judge found that the City only finally turned over documents “because Ms. Cruz continued to push the matter in post-trial motions. Indeed, seemingly every time Ms. Cruz has pressed the matter further in court, COT has suddenly discovered a large number of undisclosed documents.”

‘On August 11, Ms. Cruz’s counsel represented that “[t]hese would be short depositions.” On August 11, Mr. McLaughlin stated that COT had no objection to Ms. Cruz’s counsel calling the deponents and speaking informally on the phone. In light of the record, the Court authorizes depositions.

The judge also ruled that Cruz, through her attorney Bill Risner, can depose Albert Elias, Assistant City Manager, Chris Kaselemis, Program Director Economic Initiatives for City of Tucson, and Camila Bekat, an Economic Development Specialist with the City of Tucson. The judge ruled that the depositions “shall be completed by October 24, 2014.”

The judge wrote:

“It is also significant that at least 130 of the newly produced e-mails and attachments were located by using the computer search term “project study.” From the early stages, COT referred to the El Rio/GCU matter as “project study.” This was confirmed by Mr. McLaughlin on August 11. Further, on August 11, Mr. McLaughlin acknowledged that: (I) he knew about the “project study” moniker in May 2013; (2) he has been in charge of COT’s response to Ms. Cruz’s request from the beginning; (3) he has been the only assistant city attorney working on the El Rio/GCU response; (4) until recently, he has been the only assistant city attorney handling public document requests; and (5) he did not instruct COT’s IT department to search using the term “project study” until after the May 16 Ruling.

On August 11, Mr. McLaughlin had no good answer concerning COT’s failure to search for documents using “project study” until after the May 16 Ruling. Given the record concerning COT and Mr. McLaughlin’s failure to communicate with the IT department, and their failure to adhere to COT’s established search procedures, the Court finds that the newly produced documents would not have been produced absent the May 16 Ruling.

Nor can the Court ignore the number of times COT and Mr. McLaughlin have misrepresented that a complete response has been made to Ms. Cruz’s request. Most prominently, there was the July 8 representation, which was in a motion signed by Mr. McLaughlin. Further, on July 23, 2013, at the start of the trial, Mr. McLaughlin stated: “So we have made two releases, and we are down to seven documents that we are aware of. Mr. Risner has four, count them, four City officials under subpoena for this hearing. I don’t see any reason we need testimony for this hearing. I have seven documents. I’m ready to have you do an in-camera inspection if you would like to.” As noted by Ms. Cruz, COT made several other misrepresentations concerning the completeness of its response. COT made all of these misrepresentations without conducting a search for documents using its own “project study” reference.

On August 11, when asked about El Rio/GCU public record requests from the Arizona Republic (Josh Brodesky) and KOLD TV (Bud Foster), Mr. McLaughlin acknowledged that COT never responded and stated that neither media outlet had “filed an action” for the records. Mr. McLaughlin’s statements indicate that parties seeking meaningful access to documents concerning EI Rio/GCU had to be willing to litigate. Arizona law, however, contemplates a norm of production rather than litigation.

Further, when asked about the multiple misrepresentations of completeness, Mr. McLaughlin, an experienced lawyer, stated: “I have no answer for that other than that’s what I believed at the times (sic), and I keep being wrong. And I don’t have a legal answer for you. But you asked me to certify on June 4th, and I did. And I do believe it now. I really believe it, because I triple checked everything.” Mr. McLaughlin’s statements call into question whether he really believed there was a factual basis for the earlier misrepresentations, including those made on July 8 and July 23, 2013.

Further, Mr. McLaughlin “managed to lose” a number of hard files delivered to him by one or more city employees. The August 11 hearing revealed that Mr. McLaughlin has no meaningful plans to search further for those files. Neither did he reveal any official efforts to search for the files or to reconstruct them. Under the circumstances, one would expect a no ¬ stone-unturned-approach.

Given the record, the Court will not accept on face value the explanation that the files were inadvertently lost, or the assertion that Ms. Cruz has already received everything that was contained within them. In connection with the Court’s examination of whether additional sanctions should issue pursuant to A.R.S. § 12- 349(A), Ms. Cruz may depose Albert Elias, Chris Kaselemis and Camila Bekat. Ms. Cruz may inquire concerning what documents were contained in COT’s files, including the lost ones, the non-privileged circumstances and timing of the delivery of any files to the City Attorney’s office, whether duplicates exist, and whether the witnesses know or have information concerning the possible whereabouts of the files or how they were lost. These topics are material to the question of whether additional sanctions should issue for unreasonable expansion and delay of these proceedings. Each deposition shall last no longer than ninety (90) minutes.

Rule 59(a)(4), Arizona Rules of Civil Procedure, provides that a new trial may be granted when there is “[m]aterial evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial.” Here, in connection with the trial of Ms. Cruz’s claim for sanctions pursuant to A.R.S. § 12-349(A), the fact that COT did not search using “project study” until after the May 16 Ruling, and the production of at least 130 pre-existing documents as a result of that search, constitute newly discovered material.

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