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LAW OFFICE OF TERRY L. THOMPSON Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAK-SHING WILLIAM TAM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.

CASE NO. 09-CV-2292 VRW DEFENDANT-INTERVENOR HAKSHING WILLIAM TAM’S MOTION FOR LEAVE TO FILE MOTON TO STRIKE AND/OR RECONSIDER Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor

DEFENDANT-INTERVENOR TAM’S MOTION FOR LEAVE TO FILE MOTION TO STRIKE AND/OR RECONSIDER CASE NO. 09-CV-2292 VRW

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TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Local Rule 7-9 Defendant Intervenor Hak-Shing William Tam will and hereby does move this Court for leave to file the attached motion to strike and/or reconsider its prior orders and rulings on Defendant-Intervenor’s assertion of First Amendment

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ninth Circuit held that “[i]mplicit in the right to associate with others to advance one’s shared political beliefs is the right to exchange ideas and formulate strategy and messages, and to do so in private.” Id. at 1162. The privilege is not limited to “official proponents of initiatives and referendums, but also [extends] to the myriad social, economic, religious and political organizations that publicly support or oppose ballot measures.” Id. at 1158. Footnote 12 stated that the “holding is … limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages,” id. at 1165 n.12, and this Court interpreted that language to mean that the 1
DEFENDANT-INTERVENOR TAM’S MOTION FOR LEAVE TO FILE MOTION TO STRIKE AND/OR RECONSIDER CASE NO. 09-CV-2292 VRW

privilege, and also the attached declaration in support of that motion. MEMORANDUM AND POINTS OF AUTHORITIES 1. L.R. 7-9(a) provides that a party must obtain leave of the Court to file a motion for re-

consideration of an interlocutory order “[b]efore the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case.” In a motion for leave, the moving party must show: (1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) The emergence of new material facts or a change of law occurring after the time of such order; or (3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. L.R. 7-9(b). 2. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (hereinafter Perry I), the

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privilege was restricted to communications solely among those persons in a single organization or entity. See, e.g. Trial Tr. 1615-1621. On April 12, 2010 the Ninth Circuit stated: [T]he district court said as a matter of law that “the First Amendment privilege does not cover communications between [or among] separate organizations.” Doc #623 at 13 (brackets in original). 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. Order, Perry v. Schwarzenegger, No. 10-15649 (9th Cir. Apr. 12, 2010), at 8-9. And as the Ninth Circuit stated in its January 4 opinion, the associations subject to First Amendment privilege are simply those persons who come together “to advance one’s shared political beliefs,” including “myriad social, economic, religious and political organizations.” Perry I, 591 F.3d at 1158, 1162. 3. Because the Ninth Circuit has provided clarification on the meaning of its prior mandate

there is now “a material difference in … law … from that which was presented to the Court before 17 18 19 20 21 22 23 24 25 26 27 28
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entry of the interlocutory order for which reconsideration is sought.” L.R. 7-9(b)(1).

CONCLUSION For the foregoing reasons, Defendant-Intervenor Tam respectfully requests that the Court grant leave to file the attached motion to reconsider and/or strike exhibits and associated portions of the trial transcript, and also the attached declaration in support of that motion. Dated: April 26, 2010 Respectfully submitted,

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Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAKSHING WILLIAM TAM

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/s/ Terry L. Thompson Terry L. Thompson

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LAW OFFICE OF TERRY L. THOMPSON Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAK-SHING WILLIAM TAM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants,

CASE NO. 09-CV-2292 VRW [PROPOSED] ORDER GRANTING DEFENDANT-INTERVENOR TAM’S MOTION TO FOR LEAVE

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PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL,

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For good cause shown Defendant-Intervenor Tam’s motion for leave to file a motion to strike and/or reconsider is GRANTED.

Dated the ________ of _______, 2010

____________________________ Chief Judge Vaughn R. Walker

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LAW OFFICE OF TERRY L. THOMPSON Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAK-SHING WILLIAM TAM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors. Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor

CASE NO. 09-CV-2292 VRW DEFENDANT-INTERVENOR HAKSHING WILLIAM TAM’S MOTION TO STRIKE

DEFENDANT-INTERVENOR TAM’S MOTION TO STRIKE CASE NO. 09-CV-2292 VRW

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TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 10 at 10:00 a.m., or as soon as feasible before that date, before the Honorable Vaughn R. Walker, United States District Court, Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Defendant-Intervenor Hak-Shing William Tam will move the Court for an order

5 6 7 8 9 10 11 12 tion as evidence, of documents and testimony revealing confidential political speech and association 13 14 15 16 17 18 19 20 objections, in part because some of the documents were communications sent or received by persons 21 22 23 24 25 26 27 28 This motion is noticed for a hearing on the next available date on the Court’s calendar but Defendant-Intervenor Tam has no objection to an expedited briefing and hearing schedule. By moving to strike these exhibits at this time, Defendant-Intervenor Tam does not waive any further claims of First Amendment error in this Court’s prior discovery and evidentiary rulings and orders, and herein renews his objections to preserve them for appeal. 1
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striking privileged documents, and associated testimony, from evidence. 1 The issue to be decided is: Pursuant to the Ninth Circuit’s guidance demonstrating that this Court’s privilege rulings constituted error, should documents and testimony admitted into evidence on the basis of those rulings, and over Defendant-Intervenor’s objection, be stricken from the record? BACKGROUND Defendant-Intervenor Tam has objected to the compelled production, and later to the introduc-

he engaged in while associating with others for common political purposes during a ballot measure campaign. See, e.g., Doc # 187; Doc # 187-12 at 4 (“I volunteered as the head of a coalition of Asian churches whose membership also had an interest in passage of Proposition 8…. As the head of this coalition, I had numerous private communications reflecting mine and others’ deeply held political and religious views and our thoughts on political strategy and petitioning the government. I engaged in these communications as part of this coalition….”); Trial Tr. 1893-94. The Court rejected these

outside of the ProtectMarriage.com “core group”—the sole association of persons that this Court ruled could claim the protections of the First Amendment against requests for compelled disclosure of nonpublic communications with political associates about the formulation of political strategy and

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messaging. See, e.g., Docs # 214, 252, 372, 496; Trial Tr. 1893-94. The Ninth Circuit has now stated that the First Amendment privilege applies “whether or not [persons] are members of a single organization or entity,” and that “the operative inquiry is whether they are part of an association subject to First Amendment protection.” Order, Perry v. Schwarzenegger, No. 10-15649 (9th Cir.

5 6 7 8 9 10 11 12 campaign messaging and strategy, the Ninth Circuit stated that the “holding is limited to communica13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [T]he district court said as a matter of law that “the First Amendment privilege does not cover communications between [or among] separate organizations.” Doc #623 at 13 2
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Apr. 12, 2010), at 9 (“Perry II”). ARGUMENT A. Pursuant to the Ninth Circuit’s Recent Order, This Court Should Strike Exhibits that Were Admitted Into the Record Based on an Erroneous Interpretation of the January 4 Opinion.

In its January 4 opinion recognizing the existence of a First Amendment privilege against compelled disclosure of nonpublic communications among political associates about the formulation of

tions among the core group of persons engaged in the formulation of campaign strategy and messages.” Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) (“Perry I”). This Court interpreted that language to mean that all of the Defendant-Intervenors in this case could claim a privilege only over documents sent or received solely among a “core group” of persons within ProtectMarrige.com, and that any document in any Defendant-Intervenor’s possession that was sent or received by any person outside this group could receive no First Amendment protection. Accordingly, over his objection, Dr. Tam had to produce many confidential documents in his possession, including those shared with persons with whom he associated during the Proposition 8 campaign for purposes of formulating political messaging and strategy. And over his continuing objection at trial, the Court admitted into the record numerous such documents. See Trial Tr. 1893-94. The Ninth Circuit’s April 12, 2010 order states that this interpretation of its January 4 opinion was erroneous:

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(brackets in original). 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. Perry II at 8-9. Accordingly, “the protected material and its fruits” that were admitted into evidence on the basis of this erroneous privilege ruling should be “excluded from evidence.” Mohawk Indus. v. Carpenter,

9 10 11 12 13 14 15 16 1911:23-1912:15); and PX 2651 (and Trial Tr. 1906:21-1908:6). See also Doc # 187-12 at ¶ 2 (“As an 17 18 19 20 21 22 23 24 25 26 27 28 First Amendment objection. See Trial Tr. 1893-94 (standing objection); id. at 1901 (admission of PX 2476); id. at 1904 (admission of PX 2612); id. at 1906 (admission of PX 2472); id. at 1910 (admission of PX 2609); id. at 1913 (admission of PX 2538); id. at 1997 (admission of PX 2504). Although Dr. Tam’s prior declaration of September 25, 2010, his testimony, and the face of the documents them3
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130 S. Ct. 599, 606-07 (2009). Specifically, Defendant-Intervenor Tam joins, and incorporates by reference, the motion to strike filed by Defendant-Intervenors Hollingsworth, Gutierrez, Jansson, and ProtectMarriage.com, see Doc # 604-2, with respect to the following exhibits and associated portions of the trial transcript: PX 2640 (and Trial Tr. 1905:3-8; Trial Tr. 1906:6-12); 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 2627 (and Trial Tr. 1999:12-18; Trial Tr. 1999:24-2002:13); PX 2650 (and Trial Tr.

official proponent I had private communications regarding political strategy and my own personal political and moral views with other members of ProtectMarriage.com.”); Ex. A (Declaration of HakShing William Tam in support of this motion) at ¶¶ 6-7. Dr. Tam also moves to strike the following documents (and portions of the trial transcript), which on their face show that they are communications Dr. Tam had with political associates about the formulation of strategy and messaging. All of these documents were admitted over Dr. Tam’s standing

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selves are sufficient for establishing the privilege, Dr. Tam also submits herewith, as Exhibit A, a further declaration in support of this motion. 1. PX 2472 (and Trial Tr. 1902:5-1903:22; Trial Tr. 1990:25-1991:12); PX 2476 (and Trial Tr. 1990:25-1901:21); and PX 2612 (and Trial Tr. 1904:622).

As Dr. Tam explained in his September 25, 2009 declaration, he served as the “head of a coalition of Asian churches whose membership also had an interest in the passage of Proposition 8,” and within and through this association he “had numerous private communications reflecting [his] and others’ deeply held political and religious views and … thoughts on political strategy and petitioning the government.” Doc # 187-12 at 4. PX 2472, PX 2476, and PX 2612 are examples of such communications that Dr. Tam sent to this group of political associates, which he described as “friends of TFC,” see Ex. A at ¶ 3, and thus fall squarely within the Ninth Circuit’s guidance that “[t]he

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operative inquiry is whether [the persons communicating] are part of an association subject to First Amendment protection.” Perry II at 9. 2. PX 2504 (and Trial Tr. 1995:25-1996:7).

As PX 2504 on its face reveals, it is an email chain that begins with Dr. Tam writing to a group of political associates. See PX 2504 at TAM_PM_003083-84. The remainder of the document is series of emails between Dr. Tam and one of those political associates who responded to the first email. See id. at TAM_PM_003082-83. Those emails reflect a discussion about the formulation of political strategy and messaging between these two political associates. See id. See also Ex. A at ¶ 5.

3.

PX 2538 (and Trial Tr. 1912:21-1913:19) and PX 2609 (and Trial Tr. 1908:17-25; Trial Tr. 1909:14-1910:17).

PX 2538 and PX 2609 are, on their face, communications from Dr. Tam to pastors and church leaders with whom he associated in the common political cause of developing strategy and messaging

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to support of passage of Proposition 8. 2 See Ex. A at ¶ 4.

C.

Plaintiffs’ Arguments Against Proper Application of the First Amendment Privilege Are Untenable.

Following the Ninth Circuit’s guidance in Perry II, the Plaintiffs appear to be taking the posi5 6 7 8 9 10 11 12 private, and/or otherwise nonpublic political speech and associational activity surrounding the Prop. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Aside from Dr. Tam’s standing objection, with respect to PX 2609, his counsel specifically objected to its being publicly read at trial because it was a “private e-mail” to “pastors and church leaders.” Trial Tr. 1909:1-5. The Court overruled the objection upon receiving confirmation that the document was “sent by the witness.” Id. at 1909:12 5
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tion that the Defendant-Intervenors cannot claim First Amendment privilege because they “‘have not asserted a First Amendment privilege over communications to other organizations.’” Doc # 633-8 at 3 (quoting Doc # 372 at 2-3). This argument fails. Defendant-Intervenor Tam was a party to the September 25, 2009 motion for a protective order, which stated that “the conclusion is inescapable [that] the First Amendment would be improperly infringed if Defendant-Intervenors are compelled to answer Plaintiffs’ wide-ranging requests for disclosure of substantially all of their internal,

8 campaign.” Doc # 187 at 18 (emphasis added). See also Doc # 197 at 6 (“This motion is really about Plaintiffs’ demands for disclosure of … nonpublic and/or anonymous communications, including (but not limited to) … communications targeted to (and/or received from) … family, friends, and colleagues.”). In support of that motion, Dr. Tam submitted a declaration that explained that his privilege claim was over nonpublic communications both to and from members of ProtectMarriage.com and to and from other those persons in a “coalition of Asian churches,” with whom he associated and communicated about “deeply held political and religious views and … thoughts on political strategy and petitioning the government.” Doc # 187-12 at 4. Plaintiffs also claim that Defendant-Intervenors in this case cannot claim benefit of the First Amendment privilege because “‘[t]here is no evidence before the Court regarding any other

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campaign organization’ and ‘no evidence before the Court that any of the documents at issue are private internal communications of such a core group regarding formulation of strategy and messages.’” Doc # 633-8 at 3 (quoting Doc # 372 at 2-3). Again, this simply and flatly ignores the actual content of Defendant-Intervenor Tam’s September 25 motion and declaration, which attest to

5 6 7 8 9 10 11 12 organization had a separate “core group” and that the communication was among members of those 13 14 15 16 17 18 19 20 21 22 23 24 CONCLUSION 25 26 27 28 For the foregoing reasons, Defendant-Intervenor Tam respectfully requests that the Court grant this motion to strike exhibits and associated transcript portions from the record. Dated: April 26, 2010 6
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the fact that there were, in fact, political associations at issue aside from ProtectMarriage.com. And the documents at issue in this motion demonstrate on their face that they were “private internal communications” among a core group of persons engaged in the formulation of strategy and messages. In any event, the quoted finding of the magistrate judge was based on an erroneous legal theory, as now explained by the Ninth Circuit—i.e., that to claim First Amendment privilege for communications among members of different formal organizations, one must prove that each

individual “core groups.” See Doc # 372 at 2-3. But “[t]he operative inquiry is whether the[] [persons communicating] are part of an association subject to First Amendment protection,” and the persons who qualify for this privilege may be made up “of associated persons spanning more than one entity.” Perry II at 9. Because the Court had erroneously interpreted footnote 12 to exclude inter-organizational communications from First Amendment protection, the Court did not consider, and held that Defendant-Intervenors could not put in any additional, evidence about persons who were not members or vendors of ProtectMarriage.com. See id. at 104:3-12.

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LAW OFFICE OF TERRY L. THOMPSON Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAKSHING WILLIAM TAM

By:

/s/ Terry L. Thompson Terry L. Thompson

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LAW OFFICE OF TERRY L. THOMPSON Terry L. Thompson (CA Bar No. 199870) tl_thompson@earthlink.net P.O. Box 1346, Alamo, CA 94507 Telephone: (925) 855-1507, Facsimile: (925) 820-6034 ATTORNEY FOR DEFENDANT-INTERVENOR HAK-SHING WILLIAM TAM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants,

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PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL,

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Defendant-Intervenor Hak-Shing William Tam has demonstrated that the following exhibits and associated portions of the trial transcript should be stricken from the record: PX 2640 (and Trial Tr. 1905:3-8; Trial Tr. 1906:6-12); 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-

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19); PX 2627 (and Trial Tr. 1999:12-18; Trial Tr. 1999:24-2002:13); PX 2650 (and Trial Tr. 1911:23-1912:15); and PX 2651 (and Trial Tr. 1906:21-1908:6); PX 2472 (and Trial Tr. 1902:51903:22; Trial Tr. 1990:25-1991:12); PX 2476 (and Trial Tr. 1990:25-1901:21); and PX 2612 (and Trial Tr. 1904:6-22); PX 2504 (and Trial Tr. 1995:25-1996:7); and PX 2538 (and Trial Tr. 1912:21-1913:19) and PX 2609 (and Trial Tr. 1908:17-25; Trial Tr. 1909:14-1910:17) Therefore, Defendant-Intervenor Tam’s Motion to Strike is GRANTED.

Dated the ________ of _______, 2010

____________________________ Chief Judge Vaughn R. Walker