The former top prosecutor in the case against indicted Maricopa County Supervisor Don Stapley was chastised by an angry judge Friday for allowing a developer's deposition to be released to the Tribune.
Lisa Aubuchon, a deputy county attorney, violated a protective order that was supposed to seal the deposition of East Valley land mogul Conley Wolfswinkel when she allowed the document's release by the Maricopa County Sheriff's Office, Judge Larry Grant of Maricopa County Superior Court ruled.
Grant ordered that all copies of the deposition be returned and said he is inclined to bill the county for legal costs racked up by Wolfswinkel's attorneys. He also ordered that the deposition "should not be used by anyone for any purpose."
Despite harsh words for Aubuchon, Grant said she would not be personally liable for whatever money damages he ends up assessing. Aubuchon was acting in her official capacity as a government employee, Grant said.
"They came into my court asking me to do something, and they didn't wait," Grant said in chiding Aubuchon's lawyer at one point. "Are you telling me I can't do anything about that?
"She knew about the protective order. She injected herself into this case. When she does that she knows there is a protective order and that protective order has broad limitations."
A spokesman for County Attorney Andrew Thomas said the agency will appeal Grant's order.
At issue is the deposition given by Wolfswinkel last June in a lawsuit involving the purchase of a water company in Pinal County by a family-owned company he represents. The case was settled and both sides agreed to seal many of the records, including Wolfswinkel's deposition, with a protective order.
But in January, Aubuchon asked to have the deposition unsealed as part of an ongoing investigation being conducted by the sheriff's office into business dealings between Stapley and Wolfswinkel. After that motion was filed, sheriff's detectives obtained a copy of the deposition when they searched the Tempe offices of Wolfswinkel-connected companies.
Stapley was indicted in November on 118 charges alleging he failed to list business and real estate interests on financial disclosure forms he is required to file. Among the transactions that were not reported are several involving the Wolfswinkels, according to the indictment.
Aubuchon notified Grant at a February hearing that sheriff's deputies had obtained a copy of the deposition. At that time, Grant ordered that the protective order be maintained until he could weigh Aubuchon's request to unseal the deposition.
The Tribune obtained a copy of the deposition through a public records request filed with the sheriff's office in February. After a story based on the deposition was published, Wolfswinkel's lawyers asked for sanctions against Aubuchon.
Grant was not swayed by arguments from Aubuchon's lawyer that the deposition was released by sheriff's officials without consulting her, or that he could not order sanctions against her because she was not a party to the original case.
Before issuing his order, Grant said he made it clear during the February hearing that the deposition was supposed to remain sealed. It was bad enough that the order was violated, but even worse that the deposition was distributed to the news media, Grant said.
Lawrence Wright, a lawyer for the Wolfswinkel companies, said the reason for sealing the deposition was that it contains confidential business information unrelated to Stapley. Wolfswinkel's lawyers offered to release all portions of the deposition that mentioned Stapley to the county attorney, Wright said.
"We had nothing to hide with regards to Conley Wolfswinkel's dealings with Don Stapley," Wright said.
Barnett Lotstein, special assistant county attorney, said Grant failed to recognize that the county attorney has no authority to issue orders to the sheriff's office, so Aubuchon cannot be held responsible for the deposition's release.
Aubuchon referred questions to Lotstein after the hearing.
The issue of whether Aubuchon would be personally liable stems from a separate motion filed by lawyers for the county Board of Supervisors. The board, which has been warring with Thomas' office since the indictment of Stapley was announced, asked that any monetary damages be assessed against Aubuchon personally rather than the county.
Thomas sent the Stapley case to the Yavapai County Attorney's Office for prosecution earlier this month in what he characterized as an attempt to resolve his disputes with the board.