CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER

12345678910111213141516171819202122232425262728STEPHEN V. BOMSE (State Bar No. 40686)sbomse@orrick.comJUSTIN M. ARAGON (State Bar No. 241592) jaragon@orrick.comORRICK, HERRINGTON & SUTCLIFFE LLP405 Howard StreetSan Francisco, California 94105-2669Tel.: (415) 773-5700Fax: (415) 773-5759ALAN L. SCHLOSSER (State Bar No. 49957)aschlosser@aclunc.orgELIZABETH O. GILL (State Bar No. 218311)egill@aclunc.orgACLU FOUNDATION OF NORTHERN CALIFORNIA39 Drumm StreetSan Francisco, CA 94111Tel.: (415) 621-2493Fax: (415) 255-8437

Attorneys for

NO ON PROPOSITION 8,CAMPAIGN FOR MARRIAGE EQUALITY:A PROJECT OF THE AMERICAN CIVILLIBERTIES UNION OF NORTHERN CALIFORNIA(Additional Counsel Listed on Signature Page)

UNITEDSTATESDISTRICTCOURTNORTHERNDISTRICTOFCALIFORNIA

KRISTIN M. PERRY,

et al.

,Plaintiffs,andCITY AND COUNTY OF SAN FRANCISCO,Plaintiff-Intervenor,v.ARNOLD SCHWARZENEGGER,

et al.

,Defendants,andPROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH,

et al.

,Defendant-Intervenors.CASE NO. 09-CV-2292 VRW

STATEMENTOFOBJECTORSINRESPONSETOAPRIL17,2010ORDER

Judge: Chief Judge WalkerLocation: Courtroom 6, 17th Floor

Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page1 of 5

CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER

12345678910111213141516171819202122232425262728In its April 17 Order, the Court observed that the parties did not appear to be all that far apartwith respect to the measures required to bring the existing discovery disputes – or at least thoseinvolving Objectors – to a close. Accordingly, it directed the parties to meet and confer to see if those differences could be bridged in a manner satisfactory to all. Unfortunately that has proven tobe easier said than done and each party, now, will be setting forth its respective position.The position of Objectors is simple: We believe that the Court need merely incorporate theessential recitations of the Ninth Circuit regarding the privilege applicable to inter-groupcommunications into an amended production order. That can be done while permitting plaintiffs andProponents to reserve their respective arguments and positions regarding their own separatediscovery disputes that do not involve Objectors. In short, Objectors wish simply to get out of themiddle of whatever disputes exist among the other parties while allowing the underlying case to bedecided on the merits without the delay that a further appeal by Objectors would create.Objectors’ position is reflected in a letter and attached proposed stipulation that Objectors sentto Proponents and plaintiffs on Monday, the 19th.

See

Exhibit A. For different reasons, this proposaldid not generate enthusiasm from either Proponents or plaintiffs, thus necessitating this separateresponse and proposal.

PROPONENTS’POSITION

Proponents put their views in writing and we submit them here (as Exhibit B) for the Court’sreview. Essentially, their position is that while they are content to have the Court’s earlier order (Doc# 623) amended in the manner that Objectors propose, they insist that any stipulation to that effectneeds to be joined with a further express provision assuring them “equal treatment” with regard totheir discovery obligations to plaintiffs. Not surprisingly, plaintiffs are not agreeable to thatsuggestion — a position that they made that clear in a telephone conference call among all parties onTuesday, the 20th.Objectors believe that Proponents are simply – and needlessly – asking for too much. Theyhave a discovery dispute with plaintiffs that may or may not be affected by what the Ninth Circuitsaid on April 12. They should be free to make their arguments about that matter to the Court —including an argument that any modification in favor of Objectors needs to be extended to them.

Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page2 of 5

CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER

12345678910111213141516171819202122232425262728However, that position should not get in the way of resolving the separate issue involving Objectors.Their arguments, like those of plaintiffs, should simply be reserved and dealt with separately. Inother words, any amendment that is needed to resolve Objectors’ concerns should be withoutprejudice as to any other matter. Proponents and plaintiffs should address the implications of theNinth Circuit’s order after the issues involving Objectors are over and done with.This Court, in fact, can impose that solution without any agreement from either plaintiffs orProponents. If it does so, that will satisfy Objectors and they will produce documents forthwith.

PLAINTIFFS’POSITION

Plaintiffs’ position has only been stated orally during the parties’ April 20 telephoneconference call. However, that position seems quite clear: there is no need for the Court to doanything. As we understand it, that is true for two reasons. First, Proponents assert that although theNinth Circuit’s April 12 Order recognized

in principle

that there could be an “association” consistingof people working for more than one organization, it did not actually recognize the existence of anyprivilege among the multiple core groups in this case. Second, Proponents claim that although theNinth Circuit may have concluded that this Court mis-read the intended scope of footnote 12 in

Perry

, it also made certain evidentiary findings that preclude recognition of a cross-entity associationin this case.The problem with this position is that it seems destined to lead to what should be anunnecessary appeal. While it is fine for plaintiffs to resist even the slightest compromise in order toresolve this controversy, that will be a result of their own making since, as noted, Objectors haveoffered a compromise in which no party is required to relinquish any argument or position that it maywish to assert as to other discovery disputes.Moreover, plaintiffs’ position misses the point. There can be no question that both MagistrateJudge Spero and this Court made their orders based on a misapprehension regarding the intendedscope of footnote 12. The Ninth Circuit has made it clear in its April 12 opinion that the First