Professional Documents
Culture Documents
11 Attorneys for
NO ON PROPOSITION 8,
12 CAMPAIGN FOR MARRIAGE EQUALITY:
A PROJECT OF THE AMERICAN CIVIL
13 LIBERTIES UNION OF NORTHERN CALIFORNIA
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CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER
Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page2 of 5
1 In its April 17 Order, the Court observed that the parties did not appear to be all that far apart
2 with respect to the measures required to bring the existing discovery disputes – or at least those
3 involving Objectors – to a close. Accordingly, it directed the parties to meet and confer to see if
4 those differences could be bridged in a manner satisfactory to all. Unfortunately that has proven to
5 be easier said than done and each party, now, will be setting forth its respective position.
6 The position of Objectors is simple: We believe that the Court need merely incorporate the
7 essential recitations of the Ninth Circuit regarding the privilege applicable to inter-group
8 communications into an amended production order. That can be done while permitting plaintiffs and
9 Proponents to reserve their respective arguments and positions regarding their own separate
10 discovery disputes that do not involve Objectors. In short, Objectors wish simply to get out of the
11 middle of whatever disputes exist among the other parties while allowing the underlying case to be
12 decided on the merits without the delay that a further appeal by Objectors would create.
13 Objectors’ position is reflected in a letter and attached proposed stipulation that Objectors sent
14 to Proponents and plaintiffs on Monday, the 19th. See Exhibit A. For different reasons, this proposal
15 did not generate enthusiasm from either Proponents or plaintiffs, thus necessitating this separate
17 PROPONENTS’ POSITION
18 Proponents put their views in writing and we submit them here (as Exhibit B) for the Court’s
19 review. Essentially, their position is that while they are content to have the Court’s earlier order (Doc
20 # 623) amended in the manner that Objectors propose, they insist that any stipulation to that effect
21 needs to be joined with a further express provision assuring them “equal treatment” with regard to
22 their discovery obligations to plaintiffs. Not surprisingly, plaintiffs are not agreeable to that
23 suggestion — a position that they made that clear in a telephone conference call among all parties on
25 Objectors believe that Proponents are simply – and needlessly – asking for too much. They
26 have a discovery dispute with plaintiffs that may or may not be affected by what the Ninth Circuit
27 said on April 12. They should be free to make their arguments about that matter to the Court —
28 including an argument that any modification in favor of Objectors needs to be extended to them.
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CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER
Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page3 of 5
1 However, that position should not get in the way of resolving the separate issue involving Objectors.
2 Their arguments, like those of plaintiffs, should simply be reserved and dealt with separately. In
3 other words, any amendment that is needed to resolve Objectors’ concerns should be without
4 prejudice as to any other matter. Proponents and plaintiffs should address the implications of the
5 Ninth Circuit’s order after the issues involving Objectors are over and done with.
6 This Court, in fact, can impose that solution without any agreement from either plaintiffs or
7 Proponents. If it does so, that will satisfy Objectors and they will produce documents forthwith.
8 PLAINTIFFS’ POSITION
9 Plaintiffs’ position has only been stated orally during the parties’ April 20 telephone
10 conference call. However, that position seems quite clear: there is no need for the Court to do
11 anything. As we understand it, that is true for two reasons. First, Proponents assert that although the
12 Ninth Circuit’s April 12 Order recognized in principle that there could be an “association” consisting
13 of people working for more than one organization, it did not actually recognize the existence of any
14 privilege among the multiple core groups in this case. Second, Proponents claim that although the
15 Ninth Circuit may have concluded that this Court mis-read the intended scope of footnote 12 in
16 Perry, it also made certain evidentiary findings that preclude recognition of a cross-entity association
17 in this case.
18 The problem with this position is that it seems destined to lead to what should be an
19 unnecessary appeal. While it is fine for plaintiffs to resist even the slightest compromise in order to
20 resolve this controversy, that will be a result of their own making since, as noted, Objectors have
21 offered a compromise in which no party is required to relinquish any argument or position that it may
23 Moreover, plaintiffs’ position misses the point. There can be no question that both Magistrate
24 Judge Spero and this Court made their orders based on a misapprehension regarding the intended
25 scope of footnote 12. The Ninth Circuit has made it clear in its April 12 opinion that the First
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CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER
Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page4 of 5
1 Amendment privilege is not limited to a “core group” within a single enterprise.1 To the extent that
2 the orders from Magistrate Judge Spero and this Court were based upon a contrary assumption, as
3 they plainly were, they need to be reconsidered and this Court’s March 22nd Order needs to be
5 Insofar as plaintiffs’ position rests upon a supposed “evidentiary” finding by Magistrate Judge
6 Spero and this Court, there would need to be, at a minimum, a remand to the Magistrate Judge for
7 further consideration in light of the Ninth Circuit's clarification of its decision. Failing that,
8 Objectors will be content to appeal that determination since it is plainly contradicted by the
10 Lest there be any misunderstanding, that is not the result that Objectors wish to occur, nor
11 need it be what happens. Objectors do not insist on anything more than what their evidentiary
12 submissions establish when applied in accordance with what the Ninth Circuit has said regarding the
13 scope of the First Amendment privilege. That is what their proposed stipulation provided — and it
14 further provided that by agreeing to it, plaintiffs were not waiving any position that they might wish
15 to take with regard to the obligations or the evidence presented by Proponents. In sum, as we set
16 forth below, it will not take all that much to satisfy Objectors and bring this matter to a close.
18 OBJECTORS’ POSITION
19 Like the Court, Objectors thought that there was only a narrow gap between their position and
20 that of the other parties. That may be true, but it is a gap that neither of those parties appears
22 1. The Court, on its own motion, adopt the terms of Objectors' proposed stipulation as its
23 order, applicable to Objectors only. If it does so, Objectors represent that they will produce
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1 The Court said that under its January 4 decision, “the privilege applies to the core group of persons
26 engaged in the formulation of strategy and messages, whether or not they are members of a single
organization or entity. The operative inquiry is whether they are part of an association subject to
27 First Amendment protection. We did not hold that the privilege cannot apply to a core group of
associated persons spanning more than one entity.” Doc # 14 at 9 (emphasis in original).
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CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER
Case3:09-cv-02292-VRW Document639 Filed04/22/10 Page5 of 5
2 2. Alternatively, without adopting the specific language of Objectors’ stipulation, the Court
3 enter its own revised order amending its prior Order (Document #623) to conform to the Ninth
4 Circuit's April 12 statements regarding the scope of the First Amendment privilege for inter-
5 organization communications. If the Court selects this alternative, Objectors, understandably, must
6 reserve the right to decline compliance, be held in contempt and, then, appeal. However, Objectors
7 assure the Court that so long as the principles articulated by the Ninth Circuit regarding the scope of
8 the First Amendment privilege are fairly acknowledged through amendment, it is their intention to
9 accept such amendment and produce documents in accordance with the amended Order without
11 CONCLUSION
12 For the foregoing reasons, the Court should adopt one of the two proposals outlined by
13 Objectors above.
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CASE NO. 09-CV-2292 VRW STATEMENT OF OBJECTORS IN RESPONSE TO APRIL 17, 2010 ORDER
Case3:09-cv-02292-VRW Document639-1 Filed04/22/10 Page1 of 5
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Case3:09-cv-02292-VRW Document639-1 Filed04/22/10 Page2 of 5
ORRICK
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Charles 3. Cooper
Cooker and Kirk, PLLC
[52.3 New Hampshire Avenue, N.W.
Washington, D. C. 20036
We write on behalf of the ACLU and Equality California (“Objectors”) in response to Judge
Walker’s Order of the 17th. We hope that the Judge is correct that the parties are in substantial
agreement as to discovery issues involving the Objectors, since it is their clearly expressed desire
to
resoivc any discovery disputes in your litigation so that the underlying controversy can be resolved
without unnecessary further delay.
What concerns us is that while both plaintiffs and Proponents separately express agreement to our
suggestion that there be a modification ofJudge Walker’s March 22nd Order in light of the Ninth
Circuit’s April 12 opinion, you each attach “conditions” to your approval that relate to discovery
disputes that do not involve Objectors. We see no reason why those separate issues should prevent
resolution of the current matter which relates only to the discovery sought from Objectors.
We. therefore, reiterate our proposal that the Court be asked jointly to modir its March 22nd
decision to make clear that the First Amendment privilege asserted by Objectors may protect
communications regarding campaign strategy and messages among people from different
organizations who have chosen to associate together in support of a common political objective.
We further suggest that your agreement to such a stipulation be without prejudice to any patty’s
right to argue about the significance, or lack of significance, of the Ninth Circuit’s order with
respect to any other party or to any other matter in the pending district court litigation involving
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Case3:09-cv-02292-VRW Document639-1 Filed04/22/10 Page3 of 5
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Iheodore J. Boutrous,jr.
Charles I. c:ooper
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your respective clients. We attach some language that would be sufficient, in Objectors’ view, to
accomplish that goal.
if that stipulation is approved by the Court and a modified opinion is, thereafter, issued reflecting
its
terms, Objectors will proceed to produce documents in accordance with that modified opinion
without seeking any further appellate review or stay. That production will be forthcoming
promptly. Your respective clients thereafter can proceed to argue what significance, if any, the
Ninth Circuit’s April 12 decision has for your separate discovery disputes.
OIlS \\ :2(1)B9J469 I
Case3:09-cv-02292-VRW Document639-1 Filed04/22/10 Page4 of 5
Whereas, on March 5, 2010 Magistrate Judge Spero entered an order directing Equality
California and No on Proposition 8, Campaign for Marriage Equality, a Project of the
American Civil Liberties Union of Northern California (collectively, “Objectors”) to
produce certain documents to Intervenor-Defendants (“Proponents”) (Document 610);
and
Whereas on March 22, 2010 the district court affirmed that order in all respects
(Document # 623); and
Whereas, Objectors thereafter sought to appeal those orders to the Ninth Circuit or, in the
alternative, sought review by way of writ of mandamus; and
Whereas, in response to briefing requested by the court of appeals with respect to its
urisdiction and the appropriateness of mandamus, the court of appeals on April 12, 2010
entered an order dismissing the appeal for lack of jurisdiction and declining to exercise its
mandamus power; and
Whereas, in the course of its April 12, 2010 order the court of appeals stated that
under its January 4, 2010 opinion in Perry v. Schwarzenegger, 591 F.3d 1147, “the [First
Amendment privilege applies to the core group ofpersons engaged in the formulation of
strategy and messages, whether or not they are members of a single organization or
entity”; and
Whereas the Court of Appeals further stated that the “operative inquiry is whether [such
persons] are part of an association subject to First Amendment protection”; and
Whereas the court of appeals further stated that it “did not hold [in Perry] that the [First
Amendment] privilege cannot apply to a core group of associated persons spanning more
than one entity”; and
Whereas, Objectors thereafter have represented to plaintiffs and Proponents that if the
district court’s order is amended in accordance with the foregoing statements of the court
of appeals, they will forthwith produce all documents called for by such amended order
and will take no further appeal therefrom; and
Whereas the parties to this stipulation wish to avoid further unnecessary proceedings with
respect to Proponents’ motion and desire documents to be produced by Objectors
without further delay so that the district court is able to rule on the merits of the
underlying litigation regarding the constitutionality of Proposition 8; and
Whereas, Proponents and plaintiffs are agreeable to the modification provided for herein,
provided that it is without prejudice to any arguments or positions that either of them may
hereafter assert regarding what further action, if any, is required with regard to any other
matter as a result of the Ninth Circuit’s April 12, 2010 order and both Proponents and
Case3:09-cv-02292-VRW Document639-1 Filed04/22/10 Page5 of 5
plaintiffs agree that no inference regarding such matter shall be made by the district court
as a result of plaintiffs or Proponents entering into this stipulation and further agree that
this stipulation is solely for the purpose of resolving the discovery dispute
between Proponents and Objectors,
1. Notwithstanding any language in Documents # 610 or 623 to the contrary, the order
compelling Objectors to produce documents shall be deemed to provide and require as
Follows:
not they are members of a single organization or entity. This includes communications
solely among and between the Equality for All core group, the Equality California core
group and the ACLU core group as defined by the Court.”
2. The district court shall make such other or further amendments to its Order dated
March 22, 2010 as are necessary and appropriate, in its judgment, to effectuate the above
language and which are consistent with the statements regarding the scope of the First
Amendment privilege as explained by the Ninth Circuit in its Order dated April 12, 2010.
4. upon entry of an amended order in accordance with this stipulation, Objectors, and
each of them, shall produce the documents required pursuant to paragraph 1 above within
3 business days.
Case3:09-cv-02292-VRW Document639-2 Filed04/22/10 Page1 of 5
H JJHIHXJ
Case3:09-cv-02292-VRW Document639-2 Filed04/22/10 Page2 of 5
I write on behalf of Proponents and in response to Mr. Bomse’s letter of April 19, 2010,
on behalf of the ACLU and Equality California (“Objectors”). We have also spoken with
counsel for Defendant-Intervenor William Tam and he joins the substance of this letter.
Objectors propose, in light of the Ninth Circuit’s recent guidance on the scope of the First
Amendment privilege, that the parties enter a joint stipulation amending the production order that
currently requires Objectors to produce documents. As we have stated throughout this litigation,
however, our position is that whatever First Amendment (and relevance) rules apply in this case
must apply uniformly to all parties. Accordingly, Proponents cannot enter a stipulation that
would establish one set of rules with respect to Objectors’ privilege assertions, but leave open for
further litigation the rules to apply to Proponents’ privilege assertions. Such a piecemeal
approach would leave open the possibility of a non-uniform application of the Ninth Circuit’s
most recent guidance.
This, as you know, is where matters stood on April 16, when Proponents submitted their
joint response to the order to show cause and motion to hold Objectors in contempt. In response
to that filing, the Court ordered the parties to negotiate further. While Objectors’ proposal does
provide specificity that was lacking on April 16, as a substantive matter it does not advance the
parties beyond the disagreement that existed at that time. Indeed, as noted in Mr. Bomse’s letter,
the proposal is a “reiterate[lon]” of the proposal put forth last week.
Case3:09-cv-02292-VRW Document639-2 Filed04/22/10 Page3 of 5
Stephen V. Bomse
Theodore J. Boutrous
April 20, 2010
Page 2 of 2
Thank you for your continued attention to this matter as we endeavor to work toward a
mutually agreeable solution that uniformly protects the important First Amendment rights of all
parties.
Whereas the District Court has entered numerous orders and rulings on the scope and application
of the First Amendment privilege in this case, both with respect to privilege assertions by
Defendant-Intervenors (“Proponents”) and Equality California and No on Proposition 8,
Campaign for Marriage Equality, a Project of the American Civil Liberties Union (collectively,
“Objectors) ; and
Whereas, in the course of its April 12, 2010 order the Court of Appeals for the Ninth Circuit
stated:
If the district court meant that the privilege cannot apply to persons who are part
of a political association spanning more than one organization or entity, then this
interpretation was questionable. Under Perry I, the privilege applies to the core
group of persons engaged in the formulation of strategy and messages, whether
or not they are members of a single organization or entity. The operative inquiry
is whether they are part of an association subject to First Amendment protection.
We did not hold that the privilege cannot apply to a core group of associated
persons spanning more than one entity.
Whereas, the parties claiming privilege do not waive any objection to any privilege ruling the
District Court has heretofore entered; and
Whereas, the parties to this stipulation wish to avoid further proceedings in the District Court
with respect to First Amendment privilege; and
Whereas, Plaintiffs, Proponents, and Objectors are agreeable to the modifications provided for
herein to the District Court’s prior orders and rulings,
1. Notwithstanding any language in any prior order, or any prior ruling, of the District Court to
the contrary, the Objectors shall only produce to Proponents documents in their possession that
contain, refer or relate to arguments for or against Proposition 8, except those communications
solely within, between, or among the persons in the “core groups” of Equality for All, Equality
California, and the ACLU, as those “core groups” were defined by the District Court in Docs #
610 and 623.
2. Notwithstanding any language in any prior order, or any prior ruling, of the District Court to
the contrary, the following documents or portions of documents, as well as the following
associated portions of the trial transcript, admitted into the record over Proponents’ First
Amendment objections, shall be stricken from the record:
2394:5-15); PX 2389 (and Trial Tr. 1603:12-1604:22; Trial Tr. 1606:19-1610:6); PX 2403; PX
2455 (and Trial Tr. 2389:8-14); PX 2554 (and Trial Tr. 1622:5-1623:25; Trial Tr. 1627:7-
1628:15); PX 2555 (and Trial Tr. 1633:6-18; Trial Tr. 1633:23-1637:9); PX 2561 (and Trial Tr.
1642:8-21; Trial Tr. 2669:23-2670:21); PX 2562 (and Trial Tr. 1643:14-1644:10); PX 2589 (and
Trial Tr. 2386:6-8); PX 2598 (and Trial Tr. 1645:4-1646:6); PX 2655; PX 2656 (and Trial Tr.
2365:10-25; Trial Tr. 2366:9-12); PX 2773 (and Trial Tr. 2375:13-21); PX 2472 (and Trial Tr.
1902:5-1903:22; Trial Tr. 1990:25-1991:12); PX 2476 (and Trial Tr. 1990:25-1901:21); PX
2504 (and Trial Tr. 1995:25-1996:7); PX 2538 (and Trial Tr. 1912:21-1913:19); PX 2599 (and
Trial Tr. 1975:8-1977:5; Trial Tr. 1995:5-19); PX 2609 (and Trial Tr. 1908:17-25; Trial Tr.
1909:14-1910:17); PX 2612 (and Trial Tr. 1904:6-22); PX 2620 (and Trial Tr. 1898:16; Trial Tr.
1899:1-10; Trial Tr. 1899:25-1900:18); PX 2627 (and Trial Tr. 1999:12-18; Trial Tr. 1999:24-
2002:13); PX 2630 (and Trial Tr. 1994:20-21; Trial Tr. 1995:2-4); PX 2631 (and Trial Tr.
1992:20-1993:4; Trial Tr. 1993:21-25); PX 2633 (and Trial Tr. 1965:3-1971:8; Trial Tr.
1980:16-1981:6; Trial Tr. 1981:21-1982:2 Trial Tr. 1991:24-1992:4; Trial Tr. 1992:13-19; PX
2640 (Trial Tr. 1905:3-8; Trial Tr. 1906:6-12; PX 2650 (and Trial Tr. 1911:23-1912:15); PX
2651 (and Trial Tr. 1906:21-1908:6).
3. If the District Court determines that any portion of this stipulation is not to be entered as a
binding order of the Court, then the parties do not stipulate to any other provision of this
stipulation.
4. This stipulation is entered without prejudice to any party or non-party later assertion of error
with respect to the any order or ruling of the District Court regarding First Amendment privilege.