Case3:09-cv-02292-VRW Document175 Filed09/10/09 Page1 of 2

Cooper & Kirk

Lawyers
A Professional Limited Liability Company

Charles J. Cooper
105 Kaula Lane
1523 New Hampshire Avenue, N.W. Bonita Springs, FL 34134
Washington, D.C. 20036 (239) 948-5947
(202) 220-9660 Fax (239) 948-5946
Fax (202) 220-9601 ccooper@cooperkirk.com

The Honorable Vaughn R. Walker

Chief Judge
United States District Court for the
Northern District of California
450 Golden Gate Ave.
San Francisco, CA 94102
September 10, 2009

Re: Perry v. Schwarzenegger, No. 09-2292 VRW

Dear Chief Judge Walker,

Defendant-Intervenors respectfully request leave to file a motion for a protective order to resolve
a discovery dispute that has arisen between Plaintiffs and Defendant-Intervenors. Plaintiffs originally
asserted that they “plan to seek documents relating to Prop. 8’s genesis, drafting, strategy, objectives,
advertising, campaign literature, and Intervenors’ communications with each other, supporters, and
donors.” Doc # 157 at 12. At the August 19, 2009 hearing, Mr. Cooper explained that “some of the
things that [Plaintiffs] would like to inquire into … going to voter motivation are issues that we
earnestly believe are not fit and appropriate for judicial inquiry, and that in fact, would raise the gravest
possible First Amendment issues.” Tr. 59. Counsel requested “an opportunity to fully brief that
proposition before we get off in the direction of taking depositions of our clients and subpoenaing their
emails … going to their internal campaign strategies . . . .” Id. In response, Plaintiffs’ counsel stated: “I
frankly do not believe that we will have a problem, at least at the initial stages of discovery, in limiting
discovery in a way that does not impermissibly infringe on any First-Amendment issues.” Id. at 63.
Counsel represented that “statements that were made publicly” are “subject to discovery” but that
Plaintiffs would “not be inquiring into” “subjective, unexpressed motivations.” Id. at 63-64.

Two days later, Plaintiffs propounded document requests (enclosed herewith) that seek materials
that are both legally irrelevant and protected from disclosure by the First Amendment. For example, in
Request No. 8 Plaintiffs seek “[a]ll versions of any documents that constitute communications relating
to Prop. 8, between you and any third party.” Plaintiffs define “relating” to mean “indirect and direct
references to the subject matter set forth in the document request.” Plaintiffs thus seek all
correspondence Defendant-Intervenors may have had with any “third party” (even a single individual,
whether or not a California voter) bearing any relationship to Prop. 8 whatsoever—including
communications with individual donors or voters, communications with political strategists, and
communications with friends. Moreover, Plaintiffs seek these communications regardless of whether

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they relate to the public understanding of or motivation for enacting Prop. 8. Defendant-Intervenors and
Plaintiffs have exchanged letters (attached hereto) and engaged in telephone conferences in an effort to
resolve our conflicting views of the permissible scope of discovery in this case. Plaintiffs’ counsel has
confirmed that Plaintiffs seek communications between Defendant-Intervenors and third parties that in
any way relate to Prop. 8. Plaintiffs’ counsel also has confirmed that Plaintiffs seek all versions of
publicly distributed documents, including draft versions never meant for public distribution.

It thus appears that Plaintiffs do not intend to limit their discovery requests in a way that would
be consistent with Defendant-Intervenors’ First Amendment privilege and/or that would relieve
Defendant-Intervenors of the burden of reviewing and producing tens of thousands of documents that
are legally irrelevant. As the Ninth Circuit cogently explained in SASSO v. Union City, while it might
be proper to assign a discriminatory purpose to the public’s enactment of a referendum using “wholly
objective standards” such as “ultimate effect and historical context,” the resort to subjective views of the
electorate is an inappropriate avenue of judicial inquiry as it would require “a probing of the private
attitudes of the voters, [which] would entail an intolerable invasion of the privacy that must protect an
exercise of the franchise.” 424 F.2d 291, 295 (9th Cir. 1970). See also Jones v. Bates, 127 F.3d 839,
860 (9th Cir. 1997). The Supreme Court, in Plaintiffs’ principal case, Romer v. Evans, 517 U.S. 620,
634 (1996), hewed closely to this line, examining only information that was publicly known (such as the
referendum’s ultimate effect). Thus, Plaintiffs seek discovery that has no possible bearing on the
outcome of this case. Moreover, communications regarding political strategy, associational goals, and
speech related to petitioning of the government are protected by the First Amendment. See NAACP v.
Alabama, 357 U.S. 449 (1958); Beinin v. The Center for the Study of Popular Culture, 2007 U.S. Dist.
LEXIS 47546, at *10 (N.D. Cal. 2007) (Ware, J.). See also In re Motor Fuel Temperature Sales
Practices Litig., 2009 U.S. Dist. LEXIS 66005 (D. Kan. 2009).

But the Court need not take our word for it. Plaintiffs’ counsel has very recently explained to the
Supreme Court of the United States just what is at stake: “Even if the government did have an
informational or enforcement interest in applying … disclaimer, disclosure, and reporting requirements
to [an association engaging in core First Amendment activities], those interests would be outweighed by
the extraordinary burdens that those requirements impose on First Amendment freedoms—including the
risk of harassment and retaliation faced by [the association’s] financial supporters, and the substantial
compliance costs borne by [the association]….The widespread economic reprisals against financial
supporters of California’s Proposition 8 dramatically illustrate the unsettling consequences of
disseminating contributors’ names and addresses to the public through searchable websites. . . .” Reply
Br. for Appellant at 28-29, Citizens United v. FEC, No. 08-205 (U.S. Mar. 17, 2009). Here, Plaintiffs
seek much more invasive and sweeping disclosure than the information sought in Citizens.

Defendant-Intervenors respectfully request leave to file a motion for a protective order.

Sincerely,

/s/ Charles J. Cooper

Charles J. Cooper
Counsel for Defendant-Intervenors

Enclosures
Cc: Counsel of Record

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Cooper & Kirk

Lawyers
A Professional Limited Liability Company
1523 New Hampshire Ave., N.W.
Nicole J. Moss Washington, D.C. 20036 (202) 220-9600
nmoss@cooperkirk.com Fax (202) 220-9601

August 27, 2009

By Electronic Mail

Matthew D. McGill
Gibson, Dunn & Crutcher LLP
1050 Connecticut Ave., NW
Washington, D.C. 20036-5306

Re: Perry v. Schwarzenegger, et al.,

U.S.D.C., N.D. Cal., C-09-2292 VRW

Dear Matt,

We are in receipt of Plaintiffs’ First Set of Requests for Production and appreciate the
efforts you have made to confine the scope of those Requests to the representations made at the
August 19, 2009 hearing. Consistent with those representations, I write to clarify that
Defendant-Intervenors understand Plaintiffs’ Requests as not calling for the disclosure of
Defendant-Intervenors’ internal communications and documents, including communications
between and among Defendant-Intervenors, as well as communications between Defendant-
Intervenors and their agents, contractors, attorneys, donors, or others in a similarly private and
confidential relationship with Defendant-Intervenors. We also understand your Requests, to the
extent they call for communications or documents prepared for public distribution, to call for
documents that actually were disclosed to the public. We, in turn, intend to make clear that our
discovery requests to individuals and organizations opposed to Proposition 8 will be similarly
limited.

Sincerely,

Nicole J. Moss

Cc: Charles J. Cooper, Esq.

David Thompson, Esq.
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