637

Case3:09-cv-02292-VRW Document637 Filed04/22/10 Page1 of 14
1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
5 Theodore J. Boutrous, Jr., SBN 132009

tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
10 BOIES, SCHILLER & FLEXNER LLP

David Boies, pro hac vice
11 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
13 Jeremy M. Goldman, SBN 218888

jgoldman@bsfllp.com
14 Theodore H. Uno, SBN 248603
1999 Harrison Street, Suite 900, Oakland, California 94612
16 Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,
17 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
18 UNITED STATES DISTRICT COURT

19 NORTHERN DISTRICT OF CALIFORNIA
20 KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW
21 Plaintiffs,
and PLAINTIFFS’ RESPONSE TO
22 CITY AND COUNTY OF SAN FRANCISCO, APRIL 17, 2010 ORDER
23 Plaintiff-Intervenor, Trial: January 11-27, 2010
v.
24 Judge: Chief Judge Vaughn R. Walker
ARNOLD SCHWARZENEGGER, et al., Magistrate Judge Joseph C. Spero
25 Defendants,
and Location: Courtroom 6, 17th Floor
26
PROPOSITION 8 OFFICIAL PROPONENTS
27 DENNIS HOLLINGSWORTH, et al.,
28 Defendant-Intervenors.
Gibson, Dunn &

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09-CV-2292 VRW PLAINTIFFS’ RESPONSE TO APRIL 17, 2010 ORDER

1
TABLE OF CONTENTS
2
Page
3
I. INTRODUCTION ..................................................................................................................1
4
5 II. FACTUAL AND PROCEDURAL BACKGROUND ...........................................................2
6 III. ARGUMENT..........................................................................................................................5
7 A. This Court’s March 22, 2010 Discovery Order Is Correct Because It

Applied The Appropriate Legal Standard ....................................................................5
8
B. The March 22, 2010 Order Is Valid And Enforceable Because It
9 Was Based On The Finding That The ACLU Failed To Make An
Evidentiary Showing In Support Of Its Broader Privilege Claims ..............................6
10
11 C. There Is No Basis For Reopening The Court’s Discovery Orders

Involving Proponents ...................................................................................................7
12
D. Plaintiffs Respectfully Request That The Court Swiftly Resolve The
13 Ongoing Discovery Dispute.........................................................................................9
14 IV. CONCLUSION ....................................................................................................................10
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1
TABLE OF AUTHORITIES
2
Page(s)
3
CASES
4
5 Bauman v. U.S. Dist. Court,

557 F.2d 650 (9th Cir. 1977)...................................................................................................... 3
6
In re Motor Fuel Temperature Sales Practices Litig.,
7 258 F.R.D. 407 (D. Kan. 2009).................................................................................................. 6
8 Perry v. Schwarzenegger,
591 F.3d 1147 (9th Cir. 2010).................................................................................................... 6
9
Perry v. Schwarzenegger,
10
No. 10-15649, slip op. (9th Cir. Apr. 12, 2010)................................................................ passim
11
12
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1 I. INTRODUCTION
2 On April 17, 2010, the Court discharged its April 13, 2010 Order to Show Cause and directed
3 the parties and No on Proposition 8, Campaign for Marriage Equality, A Project of the American
4 Civil Liberties Union and Equality California (collectively “the ACLU”) to “confer and negotiate in
5 order to reach a stipulation that will resolve remaining discovery issues.” Doc #634 at 2. Plaintiffs,
6 Proponents, and the ACLU have met and conferred but unfortunately are unable to reach an
7 agreement that will resolve these issues. Plaintiffs therefore respectfully submit this statement urging
8 the Court to swiftly resolve the ongoing discovery dispute between Proponents and the ACLU—an
9 unnecessary dispute that has now lasted longer than the entire trial in this case.
10 The Court should enforce its March 22, 2010 discovery order, Doc #623, directing the ACLU
11 to produce documents pursuant to Proponents’ discovery requests because that order is correct and
12 has not been disturbed by the Ninth Circuit. In Perry v. Schwarzenegger, No. 10-15649, slip op.
13 (9th Cir. Apr. 12, 2010) (“Perry II”), the Ninth Circuit dismissed the ACLU’s appeal for lack of
14 jurisdiction and further recognized that this Court’s March 22, 2010 order did not appear to be clearly
15 erroneous. Yet now the ACLU and Proponents are delaying the progress of this case by attempting
16 to use Perry II as a tool to reopen this Court’s discovery orders. There is no basis for the ACLU’s
17 and Proponents’ suggestions that this Court should amend its discovery orders because the March 22,
18 2010 discovery order, as well as this Court’s earlier January 8, 2010 and January 20, 2010 orders,
19 Docs ##372, 496, rejecting Proponents’ broad privilege claims, are entirely consistent with the Ninth
20 Circuit’s rulings.
21 This Court’s discovery orders plainly applied the correct legal standard, and the ACLU and
22 Proponents lost on their privilege claims because they failed to make an evidentiary showing, on the
23 specific facts of this case, to support their broad privilege claims beyond the core groups identified in
24 the Court’s orders. Neither Proponents nor the ACLU presented evidence sufficient to justify a core
25 group more extensive than that found by this Court in its numerous thoughtfully crafted orders. In
26 fact, the Ninth Circuit ruled in Perry II that this Court’s March 22, 2010 order did not appear to be
27 clearly erroneous because it was based on this Court’s finding that the ACLU “‘in any event failed to
28 furnish the magistrate [judge] information from which a functional interpretation of [an inter-
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1 organizational] core group . . . could be derived.’” Id. at 9 (quoting Doc #623 at 10). Regardless of
2 the theoretical reach of the First Amendment privilege in a different, hypothetical case, the ACLU
3 and Proponents failed to prove the existence of a privilege broader than that outlined by this Court.
4 Far from trying to give effect to the Ninth Circuit’s rulings, both Proponents and the ACLU
5 are now demanding—as a condition to resolving this dispute and ending the unnecessary and
6 unfortunate delay it has caused—amendments that find no support in any prior order in this case.
7 This is both unnecessary and improper. The ACLU should comply with this Court’s order and
8 produce the documents at issue. While Plaintiffs cannot stop the ACLU from choosing to go into
9 contempt, the Ninth Circuit’s order makes clear that such a tactic and any subsequent appeal would
10 be futile.
11 Plaintiffs respectfully request that the Court resolve the discovery dispute between Proponents
12 and the ACLU and close the evidentiary record as quickly as possible because Plaintiffs are suffering
13 irreparable harm each and every day that they are unable to marry because of Proposition 8
14 (“Prop. 8”). Specifically, Plaintiffs request that the Court order the ACLU to comply with its
15 discovery order in three days or be held in contempt, swiftly enter an appealable contempt order, and
16 direct Proponents to file any motion to supplement the trial record no later than seven days from the
17 ACLU’s compliance deadline.
18 II. FACTUAL AND PROCEDURAL BACKGROUND

19 The current dispute stems from Proponents’ belated attempt to obtain irrelevant discovery
20 from nonparties who unsuccessfully opposed Prop. 8. On January 15, 2010, halfway through trial
21 and over a month after the close of fact discovery, Proponents finally moved to compel the
22 production of documents from the ACLU. Doc #472. The ACLU opposed the motion to compel on
23 the grounds that it was untimely and that the documents sought were irrelevant and privileged. Doc
24 #543 at 11-18.
25 Magistrate Judge Spero granted the motion to compel and relied on three declarations filed by
26 the ACLU to broadly define the core groups of the different organizations implicated, including a
27 supplemental declaration filed after the matter was heard and submitted. Doc #610 at 10. While the
28 magistrate judge recognized a core group for Equality for All that included persons representing
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1 numerous organizations—including the ACLU—the magistrate judge found that the ACLU had not
2 made a showing sufficient to support a First Amendment privilege for communications between
3 separate organizations. See id. at 12-13; Doc #623 at 11-13. On March 22, 2010, the Court denied
4 the ACLU’s and Proponents’ objections to the magistrate judge’s order in their entirety. Doc #623.
5 The Court found that Proponents’ “showing of relevance [was] minimal” and noted that, despite
6 Proponents’ assertions that the documents they sought were “highly relevant,” Proponents “do not
7 appear to have made use of publicly available documents in this regard at trial.” Id. at 7-8.
8 On March 25, 2010, the ACLU filed an emergency motion to stay pending appeal in the Ninth
9 Circuit, which the Ninth Circuit granted on March 26, 2010. On April 12, 2010, the Ninth Circuit
10 held that it did not have jurisdiction over the ACLU’s appeal because, as a non-party, the ACLU
11 could obtain appellate review only “by electing to ignore the [district court’s] order and appealing
12 any ensuing contempt citation.” Perry II, slip op. at 4. The Ninth Circuit further held that mandamus
13 juridisiction was inappropriate because this Court did not obstruct the Ninth Circuit’s mandate, id.
14 at 6, and because the ACLU did not satisfy the discretionary factors identified in Bauman v. U.S.
15 Dist. Court, 557 F.2d 650 (9th Cir. 1977). Perry II, slip op. at 6-10.
16 With regard to the third Bauman factor (i.e., “whether the district court’s order is clearly
17 erroneous as a matter of law”), the Ninth Circuit observed that “the district court may have partly
18 misinterpreted the legal boundaries of the First Amendment privilege” because while Perry v.
19 Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (“Perry I”) held that the privilege was limited to
20 “‘communications among the core group of persons engaged in the formulation of campaign strategy
21 and messages,’” it “did not hold that the privilege is limited only to persons within a particular
22 organization or entity.” Perry II, slip op. at 8 (first emphasis added, second in original). The Ninth
23 Circuit stated that “[i]f the district court meant that the privilege cannot apply to persons who are
24 part of a political association spanning more than one organization or entity, then this interpretation
25 was questionable.” Id. at 8-9 (emphasis added). But the Court also found that, even assuming
26 arguendo that this Court misinterpreted this principle, the third Bauman factor was not satisfied:
27 “[T]here does not appear to have been clear error” given that this Court “granted in part Proponents’
28 motion to compel because appellants ‘in any event failed to furnish the magistrate [judge]
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1 information from which a functional interpretation of [an inter-organizational] core group . . . could
2 be derived.’” Id. at 9 (quoting Doc #623 at 10).
3 On April 15, 2010, counsel for the ACLU sought to negotiate an agreement with Proponents
4 and Plaintiffs whereby the ACLU would seek an order from this Court amending its March 22, 2010
5 order consistent with Perry II’s observation that the First Amendment privilege could in some cases
6 “apply to a core group of associated persons spanning more than one entity.” See Doc #633-6 at 2;
7 Perry II, slip op. at 9 (emphasis added). In response, Proponents advised that they were “amenable
8 . . . so long as the Ninth Circuit’s further guidance is applied consistently and evenhandedly to both
9 [the ACLU’s] and Proponents’ claims of privilege—which would involve revisiting . . . the Court’s
10 prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege.” Doc #633-7
11 at 2-3. Plaintiffs advised that in principle they did not object to the notion of this Court amending its
12 order in light of the Ninth Circuit’s ruling but reserved the right to weigh in with the Court regarding
13 the content of any such amendment. Doc #633-8. Plaintiffs further noted that regardless of the scope
14 of the privilege identified in Perry I and Perry II, both the ACLU and Proponents failed to make the
15 requisite evidentiary showing to support their broad privilege claims beyond the core groups
16 identified in the Court’s orders. Id.
17 On April 17, 2010, observing that “[t]he parties and nonparties appear to be in substantial
18 agreement with respect to the outstanding discovery issues,” the Court directed the parties and non-
19 parties to meet and confer to “resolve remaining discovery issues.” Doc #634 at 2. After entry of
20 that order, the ACLU circulated a proposed stipulation that would have this Court amend its March
21 22, 2010 order to allow the ACLU to withhold any and all documents “among and between” the core
22 groups identified by this Court, regardless of its failure to make any showing that such documents
23 should be privileged. Letter from Stephen Bomse to Theodore Boutrous and Charles Cooper at 4
24 (Apr. 19, 2010) (attached hereto as Ex. A) (emphasis added). In other words, the ACLU proposed
25 that as a condition to ending this time-consuming and unnecessary discovery fight, it must be
26 permitted to withhold from production documents between individuals whom the ACLU has never
27 established were part of a single, cognizable core group engaged in the formulation of campaign
28 strategy and messages.
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1 Proponents’ sweeping demands in order to resolve this discovery dispute went even further.
2 Proponents informed Plaintiffs and the ACLU that they would agree to the proposed amendment of
3 the Court’s prior order only if, as part of such an amendment, the Court were to strike from the trial
4 record virtually every document that they originally tried, unsuccessfully, to shield from discovery.
5 Letter from Jesse Panuccio to Stephen Bomse and Theodore Boutrous (Apr. 20, 2010) (attached
6 hereto as Ex. B).1
7 Counsel participated in a conference call on April 20, 2010 in an attempt to reach an
8 agreement pursuant to this Court’s April 17, 2010 order. Doc #634. Plaintiffs submit this response
9 because the parties were unable to do so. Id. Despite the current impasse, the ACLU should, at a
10 minimum, produce those documents that are not in dispute. On April 21, 2010, counsel for Plaintiffs
11 therefore sent an e-mail to the ACLU and Proponents requesting that the “ACLU begin immediately
12 producing documents that are seemingly no longer in dispute, i.e., documents not claimed to be
13 subject to the asserted inter-organizational privilege that was the subject of the dismissed appeal and
14 denied mandamus petition.” E-mail from Theodore Boutrous to Counsel for the ACLU and
15 Proponents (Apr. 21, 2010) (attached hereto as Ex. C). As of this writing, neither the ACLU nor
16 Proponents have responded.
17 III. ARGUMENT
18 A. This Court’s March 22, 2010 Discovery Order Is Correct Because It Applied The
Appropriate Legal Standard
19
The Court’s March 22, 2010 discovery order is plainly correct and has not been disturbed by
20
the Ninth Circuit. In Perry II the Ninth Circuit stated: “In the March 22, 2010 order, the district
21
court said as a matter of law that ‘the First Amendment privilege does not cover communications
22
between [or among] separate organizations.’” Perry II, slip op. at 8-9 (quoting Doc #623 at 13). The
23
Ninth Circuit explained that, “[i]f the district court meant that the privilege cannot apply to persons
24
who are part of a political association spanning more than one organization or entity, then this
25
interpretation was questionable.” Id. at 9 (emphasis added).
26
27
1 Specifically, Proponents sought to strike from the trial record 30 admitted exhibits and over
28 1,000 lines of transcript. Ex. B at 3-4.
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1 But this Court plainly did not hold that the First Amendment privilege cannot, as a matter of
2 law, apply to a core group of persons that spans more than one organization or entity. In fact, the
3 Court clearly recognized that the First Amendment privilege articulated in Perry I can apply to a core
4 group consisting of individuals from more than one organization: The Court and Magistrate Judge
5 Spero included in the core group of Equality for All persons who represent numerous entities,
6 including the ACLU. Doc #610 at 10-11.2 The Court’s application of the rule reflects what it
7 actually meant, which is that communications between separate organizations that are not part of a
8 single association or core group are not private and internal and therefore not privileged. Doc #623 at
9 13. This is entirely consistent with Perry I. 591 F.3d at 1165 n.12 (citing In re Motor Fuel
10 Temperature Sales Practices Litig., 258 F.R.D. 407, 415 (D. Kan. 2009)). It is also consistent with
11 Perry II. See Perry II, slip op. at 9 (“We did not hold that the privilege cannot apply to a core group
12 of associated persons spanning more than one entity.”) (emphasis added).
13 B. The March 22, 2010 Order Is Valid And Enforceable Because It Was Based On
The Finding That The ACLU Failed To Make An Evidentiary Showing In
14 Support Of Its Broader Privilege Claims
15 Even if this Court had meant that, as a matter of law, “the [First Amendment] privilege cannot
16 apply to persons who are part of a political association spanning more than one organization or
17 entity,” Perry II, slip op. at 9, the Ninth Circuit found no clear error because this Court based its
18 ruling on the ACLU’s failure to prove such an inter-organizational privilege in this case.
19 Specifically, the Ninth Circuit concluded that even if such a privilege could provide protection in
20 some circumstances, the ACLU “‘in any event failed to furnish the magistrate [judge] information
21 from which a functional interpretation of [an inter-organizational] core group . . . could be derived.’”
22 Id. (quoting Doc #623 at 10). There is thus no basis for the ACLU’s suggestion that the Court should
23 amend its order because, as the Ninth Circuit recognized, the order was based on the finding that the
24 ACLU failed to prove that communications between individuals beyond those already included in the
25 core groups identified by the Court are privileged. And there is no need for the Court to define the
26 potential, theoretical reach of the First Amendment privilege between representatives of different
27
28 2 The same holds true for Proponents’ core group. See infra Section III.C.
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1 organizations that might apply in another case. This case involves a concrete discovery dispute
2 arising under a set of specific facts, and the result of the dispute is the same regardless of the precise
3 legal standard because the ACLU failed to make the requisite threshold showing.
4 The ACLU nonetheless proposes that it not be required to produce documents “among the
5 core group of persons engaged in the formulation of campaign strategy and messages for the No on 8
6 – Equality for All campaign, whether or not they are members of a single organization of entity,”
7 including “communications solely among and between the Equality for All core group, the Equality
8 California core group and the ACLU core group as defined by the Court.” Ex. A at 4 (emphasis
9 added). By making this demand, the ACLU clearly seeks to expand, not simply enforce, the privilege
10 that has been recognized in the decisions of this Court and the Ninth Circuit. The ACLU’s proposal
11 plainly disregards the Ninth Circuit’s finding that this Court did not clearly err because the ACLU
12 “‘in any event failed to furnish the magistrate [judge] information from which a functional
13 interpretation of [an inter-organizational] core group . . . could be derived.’” Perry II, slip op. at 9
14 (quoting Doc #623 at 10).3
15 C. There Is No Basis For Reopening The Court’s Discovery Orders Involving

Proponents
16
Although Proponents attempt to use Perry II as a tool to reopen this Court’s orders regarding
17
their privilege claims—indeed to undo entirely the previous discovery rulings that went against
18
them—Perry II did not involve Proponents’ objections or discovery. Those objections were ruled on
19
in Perry I, and that discovery has long been completed. But in any event, even if Perry II did affect
20
Proponents, which it does not, the Court’s ruling as to Proponents’ broad privilege claim was not
21
erroneous because it was based on their failure to prove and preserve a privilege for any individuals
22
in any organization other than ProtectMarriage.com.
23
24
3 Although Plaintiffs strongly believe that no amendment is necessary, Plaintiffs would not
25 object to a minor amendment of the Court’s March 22, 2010 order to clarify the language
highlighted by the Ninth Circuit in Perry II. Namely, Plaintiffs do not oppose an explanation
26
that the Court did not mean that “the privilege cannot apply to persons who are part of a
27 political association spanning more than one organization or entity” under any circumstances,
but rather it meant that the ACLU failed to make the necessary showing with regard to a
28 broader privilege here.
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1 With respect to Proponents, Magistrate Judge Spero identified a broad and over-inclusive core
2 group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and
3 all “volunteers who had significant roles in formulating strategy and messaging.” Doc #372 at 4. As
4 with the ACLU, the magistrate judge recognized a core group that includes persons spanning
5 numerous organizations, as the ProtectMarriage.com executive committee included representatives of
6 different churches and entities. But the magistrate judge declined to deem privileged
7 communications between Proponents and organizations other than ProtectMarriage.com on the
8 ground that “[P]roponents have never asserted a First Amendment privilege over communications to
9 other organizations.” Doc #372 at 2-3.
10 The magistrate judge further held that “[e]ven if the Court were to conclude that the First
11 Amendment privilege had been properly preserved as to the communication among the members of
12 core groups other than the Yes on 8 and ProtectMarriage.com campaign, proponents have failed to
13 meet their burden of proving that the privilege applies to any documents in proponents’ possession,
14 custody or control.” Id. The magistrate judge explained that “[t]here is no evidence before the Court
15 regarding any other campaign organization, let alone the existence of a core group within such an
16 organization” and “no evidence before the Court that any of the documents at issue are private
17 internal communications of such a core group regarding formulation of strategy and messages.” Id.
18 at 3. Because these findings of waiver and failure of proof are not erroneous, let alone clearly so, this
19 Court should not disturb its earlier discovery orders. The Court should therefore reject Proponents’
20 attempt to re-litigate their failure at trial to make the requisite showing in support of a broader
21 privilege.
22 Proponents attempt to liken their privilege claims to those of the ACLU, but the two are
23 nothing alike. The information Plaintiffs obtained from Proponents is indisputably relevant to the
24 purposes underlying Prop. 8 because those who disseminated it won the campaign. By contrast, the
25 documents Proponents seek from the ACLU are irrelevant because Prop. 8 passed in spite of them.
26 There is thus no basis for Proponents’ effort to strike from the trial record the documents that the
27 Court properly admitted at trial. Ex. B at 3-4. In any event, whether and in what manner the Court
28
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1 chooses to rely on that evidence in reaching its decision is squarely within the province of the Court
2 as the fact finder in this case.
3 Proponents’ position is also distinguishable from that of the ACLU because it is flatly
4 inconsistent with their arguments at trial. At trial, Proponents argued that the hate-filled messages
5 employed by affiliated individuals and groups (for example, Official Proponent William Tam and the
6 creators of the simulcasts) were not part of the official campaign and therefore were irrelevant in
7 assessing voter intent. See, e.g., Doc. #314 at 13. And Counsel for Proponents (Mr. Pugno)
8 conceded that ProtectMarriage.com’s First Amendment privilege did not extend to separate religious
9 organizations: The “First Amendment privilege articulated by the Ninth Circuit was with regard to
10 the campaign’s internal formulation of messaging strategy. We are on a completely different field
11 here,” because “[w]e’re dealing with the religious association of a religious denomination and their
12 ability to communicate with one another within the walls of the church.” Tr. 1618:8-17 (emphasis
13 added). But Proponents now claim that those same individuals and groups were, after all, part of
14 their core group responsible for campaign messaging and strategy and seek on that basis to shield
15 from discovery communications between ProtectMarriage.com and those individuals. The Court
16 should reject Proponents’ current argument not only because of their failure of proof, but also
17 because of their contentions at trial.
18 D. Plaintiffs Respectfully Request That The Court Swiftly Resolve The Ongoing
Discovery Dispute
19
Plaintiffs are suffering irreparable harm every day because Prop. 8 prevents them from
20
exercising their fundamental right to marry. Although more than three months have passed since the
21
final witness testified at trial, this Court has not yet heard closing arguments or issued its ruling
22
because of Proponents’ belated motion to compel—which was not filed until halfway through trial
23
and well after the close of fact discovery—and the ACLU’s objections to the Court’s order. Plaintiffs
24
therefore respectfully request that the Court swiftly bring this discovery dispute to a close.
25
Despite Proponents’ and the ACLU’s convoluted attempts to convince the Court to amend its
26
earlier discovery orders, those orders are plainly correct and the Court should immediately enter an
27
order ending this dispute. To that end, Plaintiffs respectfully request that the Court order the ACLU
28
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1 to produce the required documents in three days, or else be held in contempt, and require Proponents
2 to supplement the trial record within seven days, if at all, upon expiration of the ACLU’s production
3 deadline before the Court closes the evidentiary record.
4 IV. CONCLUSION
5 This Court’s discovery orders are fully consistent with the Ninth Circuit’s decisions in Perry I
6 and Perry II. In fact, the Ninth Circuit concluded in Perry II that it appeared that this Court did not
7 clearly err when it held that the ACLU failed to provide any evidence that the privilege should be
8 extended beyond the individuals identified in the Court’s orders. Plaintiffs therefore respectfully
9 request that the Court quickly resolve this discovery dispute by requiring the ACLU to produce any
10 required documents in a matter of days or else be immediately held in contempt and closing the
11 evidentiary record promptly thereafter.
12 Respectfully submitted,
13 DATED: April 22, 2010 GIBSON, DUNN & CRUTCHER LLP
14 Theodore B. Olson
Theodore J. Boutrous, Jr.
15 Christopher D. Dusseault
Ethan D. Dettmer
16 Matthew D. McGill
Amir C. Tayrani
17
Sarah E. Piepmeier
18 Theane Evangelis Kapur
Enrique A. Monagas
19
20 By: /s/
Theodore B. Olson
21
22 ///
23 ///
24 ///
25
26
27
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1 and
2 BOIES, SCHILLER & FLEXNER LLP
David Boies
3
Steven Holtzman
4 Jeremy M. Goldman
Roseanne C. Baxter
5 Richard J. Bettan
Beko O. Richardson
6 Theodore H. Uno
Joshua I. Schiller
7
8 Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,
9 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
10
11
12
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Case3:09-cv-02292-VRW Document637-1 Filed04/22/10 Page1 of 5
Exhibit A
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.\priI19,2010 Stephen V. Bomse

(415) 773-4145
sbomse@orrick.com
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Cibson, Dunn & Crutcher LLP
.)3.) South Crand Avenue
Los ,\ngeles, California 90071-3197
Charles J. Cooper
Cooker and Kirk, PLLC
152) New Hampshire Avenue, N.W.
\X'ashington, D. C. 20036
Re: Perry v. Schwarzenneger, et al.
Dear Ted and Chuck:
\Ve wntc on behalf of the ACLU and Equality California ("Objectors") in response to Judge
\X'alker'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
resoke 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 of Judge 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 modify 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 party'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
o
F R C K

Charles J. Cooper
,\pril 1(), 2010
Page :2
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
Nimh Circuit's April 12 decision has for your separate discovery disputes.
vcn~', 'f~(~)
SlCPh~
cc: David H. Thompson
Chnstopher D. Dusseault
J ~aurcn Whittemore
James I ~sseks
STIPULATION RE DISCOVERY ISSUES
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
jurisdiction 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 of persons 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
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,
Now, therefore, it is stipulated as follows:
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:
"Each No on 8 group is DIRECTED to produce all documents in its possession that

contain, refer or relate to arguments for or against Proposition 8, except those
communications solely among the core group of persons engaged in the formulation of
campaign strategy and messages for the No on 8 - Equality for All campaign, whether or
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.
3. Nothing in this stipulation shall be deemed to represent any admission or agreement on

the part of plaintiffs or Proponents regarding the effect of this stipulation upon the
discovery obligation of any party other than Objectors or as to whether any further action
by the Court is required or appropriate in light of the Ninth Circuit's April 12, 2010
Order, all such arguments and positions being expressly reserved.
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.
Exhibit B
Cooper & Kirk

Lawyers
A Professional Limited Liability Company
1523 New Hampshire Avenue, N.W.
Jesse Panuccio Washington, D.C. 20036 (202) 220-9600
jpanuccio@cooperkirk.com Fax (202) 220-9601
April 20, 2010
VIA ELECTRONIC MAIL
Mr. Stephen V. Bomse

Orrick, Herrington & Sutcliffe LLP
450 Howard Street
San Francisco, CA 94105-2669

Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW
Dear Messrs. Bomse and Boutrous:
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[ion]” of the proposal put forth last week.
Cooper & Kirk

Lawyers
Stephen V. Bomse
Theodore J. Boutrous
April 20, 2010
Page 2 of 2
While Proponents cannot agree to Objectors’ proposed stipulation, we remain willing to

explore a global resolution of all First Amendment issues in the district court. To that end, we
would be willing to enter into the attached stipulation. It is our hope that this proposed
stipulation would bring an end to continued litigation over the scope of the First Amendment
privilege in the district court.
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.
Cc: Lauren Whittemore

James Esseks
Christopher D. Dusseault
STIPULATION RE APPLICATION OF FIRST AMENDMENT PRIVILEGE
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,
Now, therefore, it is stipulated as follows:
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:
The portions of PX 2341 Bates numbered DEFINT_PM_005614-15, 005617-005661; the

portions of PX 2350 containing email communications (but not the attachment thereto) (and
Trial Tr. 1030:13-14; Trial Tr. 1037:25-1038:2; Trial Tr. 1039:13-14); PX 2385 (and Trial Tr.
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.
Exhibit C
Monagas, Enrique A.
From: Boutrous Jr., Theodore J.

Sent: Wednesday, April 21, 2010 7:44 AM
To: Jesse Panuccio; Bomse, Stephen; lwhittemore@fenwick.com; Dusseault, Christopher D.; JEsseks@aclu.org; Kapur,
Theane Evangelis
Cc: Chuck Cooper; David Thompson
Subject: Discovery
All:
I understand that yesterday's call did not yield an agreement and that we will thus each be filing separate
reports with Chief Judge Walker tomorrow. In the meantime, if it has not already been done, I suggest that the ACLU
begin immediately producing documents that are seemingly no longer in dispute, i.e., documents not claimed to be
subject to the asserted inter‐organizational privilege that was the subject of the dismissed appeal and denied mandamus
petition. That will at least help move things along and narrow the universe of documents that may still need to be
produced and reviewed once Chief Judge Walker rules on the various pending issues. Regards,

Ted

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]
Sent: Tuesday, April 20, 2010 1:28 PM
To: Bomse, Stephen; lwhittemore@fenwick.com; Boutrous Jr., Theodore J.; Dusseault, Christopher D.; JEsseks@aclu.org;
Kapur, Theane Evangelis
Cc: Chuck Cooper; David Thompson
Subject: Perry v. Schwarzenegger: Letter and Dial-in information
Dear Counsel,
Please see the attached letter responding to the ACLU/EQCA letter of last evening. Although we are happy to proceed
with the scheduled conference call today, we are also willing to reschedule the call for first thing tomorrow morning should
any party feel additional time is required to review the proposal in the attached letter.
The dial-in information for the call today is:
Date: Tuesday, April 20, 2010
Start Time: 5:30 PM Eastern Daylight Time
Dial-in No.: 1-800-610-4500 (Toll Free in USA and Canada)
Access Code 681844
----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com

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Case3:09-cv-02292-VRW Document637 Filed04/22/10 Page1 of 14

1 GIBSON, DUNN & CRUTCHER LLP

5 Theodore J. Boutrous, Jr., SBN 132009

10 BOIES, SCHILLER & FLEXNER LLP

13 Jeremy M. Goldman, SBN 218888

16 Attorneys for Plaintiffs

18 UNITED STATES DISTRICT COURT

Gibson, Dunn &

09-CV-2292 VRW PLAINTIFFS’ RESPONSE TO APRIL 17, 2010 ORDER

5 II. FACTUAL AND PROCEDURAL BACKGROUND ...........................................................2

7 A. This Court’s March 22, 2010 Discovery Order Is Correct Because It

11 C. There Is No Basis For Reopening The Court’s Discovery Orders

Gibson, Dunn &

5 Bauman v. U.S. Dist. Court,

Gibson, Dunn &

Gibson, Dunn &

17 ACLU’s compliance deadline.

18 II. FACTUAL AND PROCEDURAL BACKGROUND

Gibson, Dunn &

Gibson, Dunn &

2 be derived.’” Id. at 9 (quoting Doc #623 at 10).

16 identified in the Court’s orders. Id.

28 strategy and messages.

Gibson, Dunn &

6 hereto as Ex. B).1

7 Counsel participated in a conference call on April 20, 2010 in an attempt to reach an

16 Proponents have responded.

Gibson, Dunn &

12 of associated persons spanning more than one entity.”) (emphasis added).

Gibson, Dunn &

14 (quoting Doc #623 at 10).3

15 C. There Is No Basis For Reopening The Court’s Discovery Orders Involving

Gibson, Dunn &

5 numerous organizations, as the ProtectMarriage.com executive committee included representatives of

7 communications between Proponents and organizations other than ProtectMarriage.com on the

9 other organizations.” Doc #372 at 2-3.

Gibson, Dunn &

2 as the fact finder in this case.

17 because of their contentions at trial.

Gibson, Dunn &

3 deadline before the Court closes the evidentiary record.

11 evidentiary record promptly thereafter.

Gibson, Dunn &

8 Attorneys for Plaintiffs

Gibson, Dunn &

jl~, HOWARL. "-, T

I·RANUSt f . ' .Aj ,,-\ .t1\j.:" -.1

.\priI19,2010 Stephen V. Bomse

I'Zd I ~1J2ail and ( '. S. A1ail

Theodore J. Boutrous, Jr.

Re: Perry v. Schwarzenneger, et al.

Dear Ted and Chuck:

Theodore J. Boutrous, Jr.

STIPULATION RE DISCOVERY ISSUES

Now, therefore, it is stipulated as follows:

"Each No on 8 group is DIRECTED to produce all documents in its possession that

3. Nothing in this stipulation shall be deemed to represent any admission or agreement on

Cooper & Kirk

April 20, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse

Theodore J. Boutrous, Jr.

Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW