3:09-cv-02292 #197

Case3:09-cv-02292-VRW Document197 Filed09/22/09 Page1 of 15
1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss
5 nmoss@cooperkirk.com (DC Bar No. 472424)
Jesse Panuccio
6 jpanuccio@cooperkirk.com (DC Bar No. 981634)
Peter A. Patterson (Ohio Bar No. 0080840)*
7 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
8 Telephone: (202) 220-9600, Facsimile: (202) 220-9601
9 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
10 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
12 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
13 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
14 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
16 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
17 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
18
* Admitted pro hac vice
19
UNITED STATES DISTRICT COURT
20 NORTHERN DISTRICT OF CALIFORNIA
21 KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.
22 ZARRILLO, CASE NO. 09-CV-2292 VRW
23 DEFENDANT-INTERVENORS’
Plaintiffs, REPLY IN SUPPORT OF MOTION
24 FOR PROTECTIVE ORDER
v.
25 Date: September 25, 2009
ARNOLD SCHWARZENEGGER, in his official Time: 10:00 a.m.
26 capacity as Governor of California; EDMUND Judge: Chief Judge Vaughn R. Walker
Location: Courtroom 6, 17th Floor
27 G. BROWN, JR., in his official capacity as
Attorney General of California; MARK B.
28 HORTON, in his official capacity as Director of
DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

CASE NO. 09-CV-2292 VRW
1 the California Department of Public Health and

State Registrar of Vital Statistics; LINETTE
2 SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
3
Planning for the California Department of Public
4 Health; PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the County of
5 Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
6 the County of Los Angeles,
7
Defendants,
8
and
9
PROPOSITION 8 OFFICIAL PROPONENTS
10 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
11 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
12 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
13
Defendant-Intervenors.
14
15
Additional Counsel for Defendant-Intervenors
16
17 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
18 tchandler@telladf.org
20 Jordan W. Lorence (DC Bar No. 385022)*

jlorence@telladf.org
21 Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
22 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
23
24
25
26
27
28

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................................................ ii
I. THE DISCOVERY AT ISSUE .................................................................................................... 1
II. RELEVANCE............................................................................................................................... 1
III. FIRST AMENDMENT PRIVILEGE ........................................................................................... 6
CONCLUSION................................................................................................................................... 10
i
TABLE OF AUTHORITIES
Cases Page
37712, Inc. v. Ohio Dept. of Liquor Control, 113 F.3d 614 (6th Cir. 1997) ........................................ 5
Adolph Coors Co. v. Wallace, 570 F. Supp. 202 (N.D. Cal. 1983) ...................................................... 7
American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff’d
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) ................................. 9
Anderson v. Hale, 2001 U.S. Dist. LEXIS 6127 (N.D. Ill. 2001) ........................................................ 9
Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986)............................................................................ 2, 3, 5
Australia/Eastern USA Shipping Conference v. United States, 537 F. Supp. 807 (D.D.C. 1987) ..... 10
Barcenas v. Ford Motor Co., 2004 U.S. Dist. LEXIS 25279 (N.D. Cal. 2004)................................... 2
Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) ....................................................................................... 5
Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) ..................................................... 7
Beinin v. Center for the Study of Popular Culture, 2007 U.S. Dist. LEXIS 47546
(N.D. Cal. 2007) ............................................................................................................................. 7
Black Panthers Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981),
granted, vacated as moot, and remanded by 458 U.S. 1118 (1982) .............................................. 7
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) ....................................... 9
City of Los Angeles v. County of Kern, 462 F. Supp.2d 1105 (C.D. Cal. 2006) .................................. 4
Christ Covenant Church v. Southwest Ranches, 2008 U.S. Dist. LEXIS 49483 (S.D. Fla. 2008) ..... 7
Dawson v. Delaware, 503 U.S. 159 (1992) ....................................................................................... 10
Equality Found. v. Cincinnati, 128 F.3d 289 (6th Cir. 1997) .............................................................. 5
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) ................................................................. 2
Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987) .................................................................... 7
Heartland Surgical Specialty Hosp. v. Mid-west Div., Inc., 2007 U.S. Dist. LEXIS 19475 (D.
Kan. 2007) ...................................................................................................................................... 9
International Action Center v. United States, 207 F.R.D. 1 (D.D.C. 2002) ..................................... 7, 8
International Society for Krishna Consciousness, Inc. v. Lee, 1985 U.S. Dist. LEXIS 22188
(S.D.N.Y. 1985) .............................................................................................................................. 7
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ........................................................... 2

ii
In re: Motor Fuel Temperature Sales Practices Litigation, 2009 U.S. Dist. LEXIS 66005 (D. Kan.
2009) ........................................................................................................................................ 8, 10
Paul v. HCI Direct, Inc., 2003 U.S. Dist. LEXIS 12170 (C.D. Cal. 2003) .......................................... 6
SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970) ............................................................................ 2
Seattle School District No. 1 v. Washington, 473 F. Supp. 996 (W.D. Wash. 1979) ........................... 2
Seattle School District No. 1 v. Washington, 633 F.2d 1338 (1980) .................................................... 5
South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003) ..................................... 6
Strom v. United States, 583 F. Supp. 2d 1264 (W.D. Wash. 2008)...................................................... 3
U.S. R.R. Retirement Board v. Fritz, 449 U.S. 166 (1980)................................................................... 2
Washington v. Davis, 426 U.S. 229 (1976) .......................................................................................... 3
Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) .................................................. 3, 5
Watchtower v. Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150 (2002) .............. 1, 9
Wilkinson v. FBI, 111 F.R.D. 432 (C.D. Cal. 1986) ............................................................................. 8
Other
Fed. R. Evid. 402 .................................................................................................................................. 3
iii
1 I. THE DISCOVERY AT ISSUE

2 Ignoring the actual content of their own document requests, Plaintiffs attempt to shift the focus
3
of what is at issue in this motion by claiming that Defendant-Intervenors (hereinafter, also “Propo-
4
nents”) seek a protective order shielding “documents distributed to millions of potential voters … if
5
the list of recipients was targeted, for example, to all registered Republicans….” Doc # 191 at 6.
6
7 See also id. at 15. In fact, we have already produced such documents (e.g., mass mailings, mass
8 emails, text of robo calls) and continue our efforts to gather and produce any such public material
9 that may remain in Proponents’ custody and control. This motion is really about Plaintiffs’ demands
10 for disclosure of Proponents’ nonpublic and/or anonymous communications,1 including (but not
11
limited to) the Proponents’ communications targeted to (and/or received from) (i) persons who
12
donated money to or otherwise volunteered to assist the Prop. 8 campaign; (ii) agents and contrac-
13
tors of the campaign, including political consultants; and even (iii) family, friends, and colleagues.
14
15 Despite Plaintiffs’ assurances, Plaintiffs have not cabined their requests to public or even widely-
16 distributed information. To the contrary, their requests reach virtually all material in any way
17 related to Prop. 8 in the possession of any Defendant-Intervenor. This includes drafts of documents
18 that were never intended to, and never did, see public light. It also includes documents created after
19
the Prop. 8 election. Plaintiffs have also noticed similarly sweeping document subpoenas on two of
20
Protect Marriage’s campaign consultants. See Exs. A, B.
21
II. RELEVANCE
22
23 1. Plaintiffs appear to contend that because the Federal Rules grant wide latitude in discovery,
24 they prescribe no limits at all. But the Rules are not so unbounded: “‘some threshold showing of
25
1
26 Anonymity in political speech, even public speech, is protected from compelled disclosure by
the First Amendment. See Watchtower v. Bible & Tract Soc’y of N.Y., Inc. v. Stratton, 536 U.S. 150,
27 167 (2002) (“The fact that circulators revealed their physical identities d[oes] not foreclose our
consideration of the circulators’ interest in maintaining their anonymity.”). Similarly, the First
28 Amendment protects even the public, but anonymous, speech of a Proponent of Prop. 8.
1
1 relevance must be made before parties are required to open wide the doors of discovery and to
2 produce a variety of information which does not reasonably bear upon the issues in the case.’”
3
Barcenas v. Ford Motor Co., 2004 U.S. Dist. LEXIS 25279, at *6 (N.D. Cal. 2004) (quoting Hofer
4
v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)).
5
2. In justifying discovery into the Prop. 8 campaign, Plaintiffs previously asserted their need to
6
7 gather evidence about the intent of the electorate. See Docs # 134 at 9, # 157 at 12. That was the
8 bait; now comes the switch. Plaintiffs now claim that the main reason they require discovery into
9 virtually every communication made by anyone included in or associated with Protect Marriage is a
10 need to gather “admissions and impeachment evidence regarding the purported state interests that
11
Defendant-Intervenors’ advance and the factual disputes identified in the Court’s June 30, 2009
12
Order.” Doc # 191 at 8. This shift in focus does not save Plaintiffs’ requests.
13
Plaintiffs seek “communications … that would demonstrate [Proponents’] conclusions about
14
15 what voters might accept as purposes and rationales for Prop. 8.” Doc # 191 at 8 n.1. But such
16 communications simply do not matter here, for Prop. 8 must be upheld “if there is any reasonably
17 conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach
18 Commc’ns, Inc., 508 U.S. 307, 313 (1993). This is a wholly objective inquiry, and “it is entirely
19
irrelevant for constitutional purposes whether the conceived reason for the challenged distinction
20
actually motivated the [electorate].” Id. at 315; see also U.S. R.R. Retirement Bd. v. Fritz, 449 U.S.
21
166, 179 (1980) (“this Court has never insisted that a legislative body articulate its reasons for
22
23 enacting a statute”).2 Accordingly, whether a particular purpose or rationale for Prop. 8 was actually
24
2
25 This objective test makes sense, of course, because the question of whether the electorate ac-
tually acted on a particular rationale cannot be answered, or even informed, by resort to the informa-
26 tion at issue here. See McIntyre v. Oh. Elec. Comm’n, 514 U.S. 334, 343 (1995) (“the Court[] [has]
… embraced a respected tradition of anonymity in the advocacy of political issues,” which is “best
27
exemplified by the secret ballot”); SASSO v. Union City, 424 F.2d 291, 295 (9th Cir. 1970); Arthur
28 v. Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986); Seattle School Dist. No. 1 v. Washington, 473 F.
2
1 presented to, or considered by, the electorate is “entirely irrelevant” to this case. And whether the
2 Defendant-Intervenors, or any particular voter, subjectively knew of, believed in, announced, or
3
denounced a particular rational basis (in public or private) is likewise irrelevant.
4
Thus, if Prop. 8 serves any conceivable legitimate governmental purpose, that purpose obvious-
5
ly cannot be negated by any “admission of a party opponent” that Plaintiffs might claim to find in
6
7 the Proponents’ nonpublic communications.3 Indeed, Plaintiffs surely are not serious in suggesting
8 that Proponents’ communications, whether public or private, could somehow constitute an admis-
9 sion that is binding on the electorate and the State of California. For the same reason, it simply
10 matters not whether the Proponents’ nonpublic communications support or contradict any of the
11
particular legitimate state interests that Prop. 8 conceivably serves.
12
Lastly, even if the information at issue here were relevant for these purposes, it would still be
13
privileged under the First Amendment. Parties regularly make statements (such as those to their
14
15 lawyers) that would constitute admissions of a party opponent or impeachment evidence—yet such
16 statements are neither discoverable nor admissible.
17 3. Citing Washington v. Davis, 426 U.S. 229 (1976), and Washington v. Seattle Sch. Dist. No.
18
1, 458 U.S. 457 (1982), Plaintiffs contend that “whether a defendant acted with discriminatory intent
19
or purpose is a relevant consideration in an equal protection challenge.” Doc # 191 at 9. These
20
cases, however, hold that the lawmakers’ intent is relevant only for the purpose of determining
21
whether a facially neutral law was nevertheless intended to discriminate on the basis of race. In this
22
23
Supp. 996, 1014 (W.D. Wash. 1979) (“as to the subjective intent of the voters … the secret ballot
24 raises an impenetrable barrier”). Moreover, even if such material could be compelled from Propo-
nents without infringing on the First Amendment, it would not suffice to show the entire electorate’s
25 motives. As the Sixth Circuit has explained, even if some voters have an improper motive, that
26 motive cannot be ascribed to the electorate at large and thus cannot serve to invalidate an act of the
electorate that “has an otherwise valid reason for its decision.” Arthur, 782 F.2d at 574.
3
27 See FED. R. EVID. 402; Strom v. United States, 583 F. Supp. 2d 1264, 1269 n.3 (W.D. Wash.
2008) (striking evidence because although it “may … be considered an admission of a party oppo-
28 nent … such evidence [wa]s not relevant”).
3
1 case, however, Proponents are not disputing that Prop. 8 can be viewed as creating a classification
2 based on sexual orientation for purposes of the Equal Protection Clause. See Doc # 172-1 at 55.
3
Further, as we have demonstrated, controlling Ninth Circuit precedents (as well as persuasive
4
precedents from every other Circuit to address the issue) clearly hold that sexual orientation, unlike
5
race, is not a suspect classification. See id. at 56. Accordingly, unlike the question at issue in Davis
6
7 and Seattle—which determined whether the challenged measures were subject to strict scrutiny or
8 only rational basis review—the question whether Prop. 8 classifies on the basis of sexual orientation
9 has no effect on the type of scrutiny to which Prop. 8 is subject, and is thus irrelevant for purposes of
10 the Equal Protection Clause. For all of these reasons, Davis and Seattle have no application here.
11
Plaintiffs, quoting City of Los Angeles v. County of Kern, 462 F. Supp. 2d 1105, 1114 (C.D.
12
Cal. 2006), vacated 2009 U.S. App. LEXIS 20078 (9th Cir. 2009), repeatedly assert that “the Court
13
may look to the nature of the initiative campaign to determine the intent of the drafters and voters in
14
15 enacting it.” Doc 191 at 9, 10, 14. That case involved equal protection and dormant commerce
16 clause challenges to a county referendum limiting importation of “sludge” from Los Angeles. The
17 Court rejected the equal protection claim, noting: “[T]he fact that [the referendum] apparently was
18 motivated in part by animus [against Los Angeles] . . . is not fatal for equal protection purposes, so
19
long as that animus was accompanied by other plausible, legitimate legislative goals.” Id. at 1111.
20
Looking solely to the text of the referendum itself, the Court concluded that “[o]n this record, such
21
legitimate goals exist.” Id. Similarly, in determining that the referendum was intended to discrimi-
22
23 nate against interstate commerce, the Court looked solely to the text of the referendum and to the
24 public advertising supporting it. See id. at 1113-14.
25 In all events, even if intent were relevant here, none of the Supreme Court’s cases dealing with
26
an equal protection challenge to a referendum has delved into the type of information Plaintiffs seek
27
28
4
1 here.4 Simply put, “the Supreme Court … has [n]ever inquired into the motivation of voters in an
2 equal protection clause challenge to a referendum election involving a facially neutral referendum
3
unless racial discrimination was the only possible motivation behind the referendum results.”
4
Arthur, 782 F.2d at 573; accord Equal. Found. v. Cincinnati, 128 F.3d 289, 293 n.4 (6th Cir. 1997);
5
37712, Inc. v. Ohio Dep’t of Liquor Ctrl., 113 F.3d 614, 620 n.11 (6th Cir. 1997).
6
7 4. Plaintiffs assert a hodge-podge of reasons why this Court should ignore the Ninth Circuit’s
8 controlling opinion in SASSO.5 First, Plaintiffs claim that SASSO is inapposite because they are not
9 seeking information about the “private attitudes of voters.” Doc # 191 at 10. Well, then exactly
10 what is “evidence concerning the ‘motivations for supporting Prop. 8’”? Id. at 9. Second, Plaintiffs
11
claim that Proponents cannot rely on SASSO because we chose to intervene. Plaintiffs fail to explain
12
why the relevance of certain information in an equal protection challenge is determined by the
13
identity of the parties to the litigation. If Proponents had not joined this lawsuit, would Plaintiffs
14
15 have thus conceded that Proponents’ nonpublic communications are irrelevant? What then justifies
16 the sweeping third-party subpoenas that Plaintiffs have noticed on Proponents’ campaign consul-
17 tants? Third, Plaintiffs argue that SASSO is no longer controlling in light of subsequent Supreme
18 Court cases. But the Ninth Circuit has never questioned SASSO and, as noted, the Sixth Circuit—in
19
4
20 For example, Seattle affirmed the finding, made by both the district court and the Ninth Cir-
cuit, that the referendum at issue “was effectively drawn for racial purposes.” 458 U.S. at 471. But
21 in making this finding, the district court explicitly held that “[i]t is, of course, impossible to ascertain
the subjective intent of those who enacted Initiative 350” and “[o]ne must simply look elsewhere
22 than within the minds of the voters.” 473 F. Supp. at 1013-14. The district court thus engaged in an
objective inquiry, looking to “[t]he very words of the initiative”; publicly-known facts that “the
23 voters in general … were well aware” of; “the historical background,” and a “departure from the
procedural norm.” Id. at 1015-16. For its part, the Ninth Circuit “f[ound] it unnecessary to discuss
24 … discriminatory purpose” and looked only at the initiative’s language and effect. 633 F.2d 1338,
1342-43 (9th Cir. 1980). Thus, at every level of adjudication, nonpublic materials such as those at
25 issue here were irrelevant to the equal protection claim in Seattle.
5
Plaintiffs rightly note that Bates received en banc consideration, but fail to note that, like both
26 the panel majority and dissent, the court looked to nothing more than the language the ballot meas-
ure, the official ballot materials, public “media attention,” and decisions of the California Supreme
27 Court. 131 F.3d 843, 846 (9th Cir. 1997) (en banc). Plaintiffs try to paint Bates as a case about
“notice,” but such a formulation does not save them from the implications of Bates. If the case is
28 about “notice,” it is about what the voters knew—an inquiry that is indistinguishable from intent.
5
1 full view of subsequent Supreme Court cases—has adopted SASSO’s holding and rationale. See
2 Paul v. HCI Direct, Inc., 2003 U.S. Dist. LEXIS 12170, at *10-18 (C.D. Cal. 2003) (courts may not
3
ignore binding authority even if parallel or higher authority “implicitly” calls it into question).6
4
5. Plaintiffs and Plaintiff-Intervenors claim that we are seeking from third parties the very
5
same type of information at issue in this motion. This charge was false when first represented to the
6
7 Court in Plaintiff-Intervenors’ letter, Doc # 182, as we pointed out in our motion, Doc # 187 at 10
8 n.5. In an effort to dispel any confusion, we specifically alerted Plaintiff-Intervenors that this was
9 not the case. And, well before Plaintiffs’ response was submitted, we sent an additional letter to the
10 third parties instructing them not to produce such materials, see Ex. C, which was copied to all
11
counsel. We are perplexed, and dismayed, that Plaintiffs continue to advance this false charge.7
12
III. FIRST AMENDMENT PRIVILEGE
13
Plaintiffs concede that Proponents’ “communications concerning the Prop. 8 referendum
14
15 campaign are core political speech and undeniably entitled to First Amendment protection.” Doc #
16 191 at 12. And they do not contest that when information about support for Prop. 8 has become
17 public, it has led to, in Plaintiffs’ counsels’ words, “widespread economic reprisals” and chilling of
18
First Amendment activity. Yet they dismiss our First Amendment claim as “makeweight.”
19
1. Plaintiffs argue that Defendant-Intervenors waived any and all First Amendment privileges
20
by joining this lawsuit.8 As an initial matter, we note again that Plaintiffs have noticed third-party
21
subpoenas upon the Proponents’ campaign consultants for the same type of discovery at issue here.
22
23 6
Eschewing controlling Ninth Circuit precedent, Plaintiffs can cite only South Dakota Farm
24 Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003), as support for their position. But even the
Eighth Circuit turned to official ballot materials as the “most compelling” evidence of intent. Id. at
25 594. Accordingly, the materials cited by the Eighth Circuit were unnecessary to its decision. In any
event, SASSO controls in this Circuit and, along with Arthur, is the better reasoned case.
7
26 These third parties have also lodged relevance and privilege objections. See Exs. D, E.
8
Plaintiffs also argue that a waiver exists where a party places the requested information at is-
27 sue. Doc # 191 at 12 n.4, 13. Yet Proponents have not placed the intent of the electorate or their
subjective belief in a particular rational basis at issue; instead, we maintain that such inquiries are
28 legally irrelevant and, unless and until the Court rules otherwise, do not plan to present any evidence
6
1 In any event, this Court has flatly rejected such an argument, holding that a “generic distinc-
2 tion” creating a “waiver of [First Amendment] safeguards by reason of the party’s decision to
3
instigate litigation” would prove to be “as much a potential ‘chill’ upon hallowed First Amendment
4
freedoms by indirectly penalizing its exercise, as would be a direct assault.” Adolph Coors Co. v.
5
Wallace, 570 F. Supp. 202, 209 (N.D. Cal. 1983). Thus, in Beinin v. Center for the Study of Popular
6
7 Culture, this Court found that a plaintiff had validly asserted First Amendment rights with respect to
8 a defendant’s discovery requests; the fact that the plaintiff had brought the suit did not matter. 2007
9 U.S. Dist. LEXIS 47546 (N.D. Cal. 2007). See also Int’l Action Ctr. v. United States, 207 F.R.D. 1
10 (D.D.C. 2002) (granting protective order to plaintiffs with regard to information about “political
11
activities”); Black Panthers Party v. Smith, 661 F.2d 1243, 1266 (D.C. Cir. 1981), granted, vacated
12
as moot, and remanded by 458 U.S. 1118 (1982)9; Int’l Soc’y for Krishna Consciousness, Inc. v.
13
Lee, 1985 U.S. Dist. LEXIS 22188, at *27 (S.D.N.Y. 1985) (granting plaintiffs’ claim of First
14
15 Amendment privilege against “an extensive inquiry into [their] associations and …finances”).10
16 These cases are in keeping with the longstanding “unconstitutional conditions” doctrine, which
17 “holds that the government ‘may not deny a benefit on a basis that infringes his constitutionally
18
protected . . . freedom of speech’ even if he has no entitlement to that benefit.” Bd. of County
19
Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996). Although Proponents may be in this lawsuit
20
21
about them, nor to call Proponents as fact witnesses. See Doc # 172-1 at 95-98, 101-03.
9
22 “Even though the Black Panther decision was later vacated as moot … there is no suggestion
in later case law in th[e] [D.C.] Circuit that its reasoning or analysis has been rejected or aban-
23 doned.” Int’l Action Ctr., 207 F.R.D. at 3 n.6. Indeed, many cases dealing with NAACP claims
often rely on the case as persuasive. See, e.g., Coors 570 F. Supp. at 210.
10
24 Plaintiffs try to cast Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987) and Christ Co-
venant Church v. Southwest Ranches, 2008 U.S. Dist. LEXIS 49483 (S.D. Fla. 2008), as supporting
25 their absolute waiver argument. But both courts specifically applied the NAACP balancing test
despite the fact that it was invoked by party-plaintiffs; the courts simply held that the invoking
26 party’s status as plaintiff could be taken into account in analyzing the balance. Grandbouche
specifically stated that even in light of this factor “information sought by defendants may, on
27 balance, be protected from disclosure.” 825 F.2d at 1467. Here, where the documents sought have
no relevance (unlike those in Christ Covenant) the balance must be struck for the party claiming
28 privilege. Moreover, Proponents are not plaintiffs—they have intervened to defend the People’s
7
1 voluntarily, their right to defend in Court a ballot initiative they sponsored and that was passed by
2 the majority of voters in California (an initiative that would go undefended but for their interven-
3
tion) cannot be conditioned on Proponents effectively leaving all First Amendment rights at the
4
courthouse doors. Yet this is precisely what Plaintiffs demand.
5
2. Plaintiffs contend that they “do not seek ProtectMarriage.com’s membership list, or a list of
6
7 donors.” Doc # 191 at 13. But Plaintiffs’ document requests clearly implicate disclosure of organi-
8 zational charts; email distribution lists (of donors, members, or supporters); lists of donors contribut-
9 ing less than the threshold amount triggering public disclosure; and identities of all correspondents,
10 whether or not their identities have previously been publicly disclosed. Further, as we have demon-
11
strated, numerous cases have held that the First Amendment shields not only membership or donor
12
lists, but also other private information of the types at issue here. See Doc # 187 at 18-19 & nn. 18-
13
19 (listing cases); see also Int’l Action Ctr., 207 F.R.D. at 2-4 (protective order barring discovery
14
15 into “political activities.”). Plaintiffs attempt to deal with only one of these cases, arguing that we
16 seek to shield documents beyond those at issue in Motor Fuel.11 But Motor Fuel broadly shielded
17 “documents related to lobbying and legislative affairs,” including “internal communications and
18
evaluations about advocacy of their members’ positions on contested political issues, as well as their
19
actual lobbying on such issues.” 2009 U.S. Dist. LEXIS 66005, at *43-47 (D. Kan. 2009). See also
20
21
vote because their official representatives would not.
11
22 Ignoring the other cases from this Circuit cited in our opening brief, Plaintiffs cite a single
case for the proposition that “[c]ourts in this Circuit have rejected claims of First Amendment
23 privilege where a litigant seeks to apply it [to] … ‘discovery of her files.’” Doc # 191 at 10 (quoting
Wilkinson v. FBI, 111 F.R.D. 432, 436 (C.D. Cal. 1986)). But Wilkinson concerned a request for
24 blanket immunity from any discovery into 30 years’ worth of “documents, tapes and microfilm” that
had already been donated to a historical society. 111 F.R.D. at 434. It was not clear in Wilkinson
25 how many of the documents reflected core First Amendment activity, and the court found that there
was no showing that “the information sought would impair the group’s associational activities.” Id.
26 at 437. Here, Plaintiffs concede that the documents at issue are core political speech and we have
made a showing of the impairment that would result from disclosure. Wilkinson also found that the
27 NAACP doctrine had been applied only to membership lists and thus refused to entertain any claim
of privilege for other types of documents. In light of the Supreme Court’s holdings about the nature
28 of speech in a referendum campaign, and the cases that have applied the NAACP doctrine more
8
1 Heartland Surgical Specialty Hosp. v. Mw. Div., Inc., 2007 U.S. Dist. LEXIS 19475, at *20 (D.
2 Kan. 2007) ( “documents related to … strategy of advocating for bills in the Kansas legislature”).
3
Plaintiffs also contend that because the “public is already aware” of Defendant-Intervenors’
4
affiliations with Protect Marriage, all of Defendant-Intervenors’ political communications should be
5
subject to compelled public disclosure. Plaintiffs ignore what was already explained in our opening
6
7 brief: public disclosure of affiliation with a group or cause is far different from—and reveals far less
8 than—disclosure of specific communications.12 See Am. Const. Law Found. v. Meyer, 120 F.3d
9 1092, 1103 (10th Cir. 1997), aff’d, Buckley v. Am. Const. Law Found., 525 U.S. 182 (1999).13
10 3. Plaintiffs claim that Proponents’ First Amendment privilege cannot stand because Plaintiffs
11
are willing to entertain “any reasonable confidentiality agreement.” Doc # 191 at 16. But a confi-
12
dentiality agreement cannot obviate the fact that the information sought is irrelevant and thus
13
Defendant-Intervenors should not have to shoulder the onerous burden of reviewing and producing
14
15 it. Indeed, where information has little relevance and implicates First Amendment concerns, courts
16 have rejected confidentiality agreements. See Anderson, 2001 U.S. Dist. LEXIS 6127 (allowing an
17 attorneys-eyes-only restriction for relevant information that had only a remote possibility of reach-
18
19 broadly, such a view is no longer tenable.

12
Plaintiffs argue that Anderson v. Hale stands for the blanket proposition that once a person’s
20 organizational affiliation is publicly known, all of that person’s other First Amendment activity loses
protection. But the dispute in Anderson was about Internet “subscription information” and “neither
21 party [could] describe exactly what information” was at issue. 2001 U.S. Dist. LEXIS 6127, at *46
(N.D. Ill. 2001). The only argument the defendants raised with regard to the publicly-disclosed
22 members was that production of subscription information might reveal the identity of anonymous
members. Id. at *14. The Court found this possibility “too remote and speculative” as defendants
23 had failed to show that production would “reveal the identity of an anonymous … member.” Id. at
*19 & n.5. Indeed, the court relied on a finding that the discovery would reveal information that was
24 highly relevant and, at least in part, had nothing to do with the associational activities in question.
Id. at *17-18. With respect to anonymous members, however, the Court refused all discovery,
25 finding that it struck at the heart of the association’s activities and was supported by only “a general
statement regarding … relevancy.” Id. at *22-25. And contrary to Plaintiffs’ suggestion here, a
26 “factual record of past harassment ma[de] the chilling effect of disclosure apparent.” Id. at *23.
13
Plaintiffs’ claim that public discussion by Proponents’ campaign consultant of some aspects
27 of the campaign renders nugatory all claims of privilege over any undisclosed First Amendment
activity. Speakers are free to choose for themselves what to make public and what to keep
28 private. See Watchtower, 536 U.S. at 167.
9
1 ing associational rights, but rejecting any disclosure where greater claims of First Amendment
2 privilege existed). Further, it is not clear what Plaintiffs would deem a “reasonable” agreement, but
3
we suspect it would include the ability to introduce the information at trial and on appeal. Public
4
disclosure would thus occur regardless of confidentiality in the discovery phase. Most important,
5
First Amendment chill occurs from any compelled disclosure—even limited disclosure. Austl./E.
6
7 USA Shipping Conf. v. United States, 537 F. Supp. 807, 810 (D.D.C. 1982) (“There is no doubt that
8 the overwhelming weight of authority is to the effect that forced disclosure of first amendment
9 activities creates a chilling effect which must be balanced against the interests in obtaining the
10 information.”). This is especially so when the party receiving the information is the disclosing
11
party’s political opponent. See Motor Fuel, 2009 U.S. Dist. LEXIS 66005 at *50 (“Disclosure of the
12
associations’ evaluations of possible lobbying and legislative strategy certainly could be used by
13
plaintiffs to gain an unfair advantage over defendants in the political arena.”); Ex. F (showing City
14
15 Attorney Herrera’s extensive anti-Prop. 8 political activities). Thus, the First Amendment “prohibits
16 the State from requiring information from an organization that would impinge on First Amendment
17 associational rights if there is no connection between the information sought and the State’s inter-
18 est.” Dawson v. Delaware, 503 U.S. 159, 168 (1992). Indeed, if “reasonable” confidentiality
19
agreements were the answer in cases such as this, the Supreme Court would have adopted them in
20
cases like NAACP; yet, courts crediting claims of First Amendment privilege routinely shield parties
21
from any production, just as with valid claims of the attorney-client and other privileges.
22
23 CONCLUSION
24 For the foregoing reasons, the Court should grant this motion for a protective order.
25 Dated: September 22, 2009 COOPER AND KIRK, PLLC

ATTORNEYS FOR DEFENDANTS-INTERVENORS
26
27 By: /s/Charles J. Cooper

Charles J. Cooper
28
10
Case3:09-cv-02292-JW Document197-1 Filed09/22/09 Page1 of 1
Index of Exhibits
Exhibit
Pls.’ Subpoena to Schubert Flint Public Affairs ............................................................................. A
Pls.’ Subpoena to Connell Donatelli Holdings ............................................................................... B
Letter from Defendant-Intervenors’ to CAEBR. ............................................................................ C
CAEBR’s Objections to Subpoena .................................................................................................D
Fred Karger’s Objections and Responses to Subpoena .................................................................. E
Documents Showing Dennis J. Herrera’s Involvement with anti-Prop. 8 Campaign .................... F
Biography of Dennis J. Herrera from “Herrera for City Attorney” Website. .................. F-1
San Francisco Weekly Blog Post re. Dennis Herrera’s Membership on No-on-8
Executive Committee.. ..................................................................................................... F-2
“No on 8, Equality for All” Statement of Organization................................................... F-3
Press Release listing Dennis Herrera as Chair of CAEBR .............................................. F-4
Announcement of Benefit for No on 8 list Dennis Herrera as an Event Chair ................ F-5
Equality California Press Release re “Activist Training,” list Dennis Herrera as

participant ........................................................................................................................ F-6
Case3:09-cv-02292-VRW Document197-2 Filed09/22/09 Page1 of 7
Exhibit A
Exhibit B
Exhibit C
lIT
ALLIACE DEFENSE FUND

Defending Our FirAt Liberty
September 15, 2009
Via Overnight Delivery and Electronic Mail
Californians Against Eliminating Basic Rights

c/o James C. Harrison and Kari Krogseng
201 Dolores Avenue
San Leandro, California 94577
Re: Perry v. Schwarzenegger,

U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Mr. Harrison and Ms. Krogseng:
This letter is a follow-up correspondence regarding the subpoena to produce documents

and electronically stored information previously issued to your organization by the Proposition 8
Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents")
in connection with the above-captioned case, Perry v. Schwarzenegger.
The Proposition 8 Proponents reiterate, as we indicated in the cover letter that

accompanied the subpoena, that in responding to the document requests you should "follow the
same narrowing constructions that the Proposition 8 Proponents and ProtectMarriage.com are
following with respect to their responses to document requests from the PlaintitTs in this action."
Further, we are not seeking your "organization's internal communications and documents, including
communications between (your) organization and its agents, contractors, attorneys, or others in a
similarly private and confidential relationship with the organization" and "to the extent (the requests)
call for communications or documents prepared for publ ic distribution, include only documents that
were actually disclosed to the public."
The requests in the subpoena issued to your organization mirror the document requests
that the Plaintiffs served on the Proposition 8 Proponents, with the significant caveat that the
Proposition 8 Proponents-through the "narrowing construction" set forth above-attempted to
exclude any documents we believe are irrelevant or constitutionally protected under controlling
law. Unlike the Proposition 8 Proponents' attempts to exclude such materials in its subpoena to
your organization, the Plaintiffs are insisting that the Proposition 8 Proponents provide
documents that we believe are irrelevant and constitutionally protected. As a result, the
Proposition 8 Proponents have objected to the Plaintiffs' requests. I have attached to this letter a
copy of the Proposition 8 Proponents' objections.
15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE 480-444-0020 FAX 480-444-0028 WEB WWW.TELLAF.ORG
,~ ,.',ll, .orT '. I'..:" ,,,' ~',:_~\.~l'. '.': . '. " ~~ ",.,.:".'~.l:" ,_~. " ~F I; _', ,..','r ,.~',"
Please understand that when you produce the requested documents, the Proposition 8
Proponents do not expect your organization to produce any of the materials to which we have
objected in the attached document.
Nevertheless because the Proposition 8 Proponents and the Plaintiffs have been unable to
reach an agreement on the permissible scope of discovery, we are filing with the Court a motion
for a protective order. While the Proposition 8 Proponents will urge the Court that the objected-
to materials are protected from disclosure, should the Court disagree with us, we would expect
your organization to produce the same types of materials that we are required to produce.
If the Court rejects the motion for a protective order, the Proposition 8 Proponents will
alert you of the need to provide additional documents at that time.
Thank you for your assistance in this matter.
~
Sincerely,
James A. Campbell
cc: All counsel of record
EncL.
~;:" (~:-'.;~it ':~;. ',::l . ..~:?~::~ ,1., ::'. ...... '.: . :" _. ".' ,: . ",0" 0' . , . . o. o. , 0 . ~ . _. 0" .-: .',' '. _ ,,0':' " .' .:,'.: ': ~:;
COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
hnielson@cooperkirk.com
Peter A. Patterson (Ohio Bar No. 0080840)*
ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
andrew@pugnolaw.com
ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
ATTORNEYS FOR DEFENDANT-INTERVENOR DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, CASE NO. 09-CV-2292 VRW
DEFENDANT-INTERVENORS’
Plaintiffs, RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF
v. REQUESTS FOR PRODUCTION
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
1
DEFENDANT-INTERVENORS RESPONSES AND OBJECTIONS TO PLAINTIFFS’ FIRST SET OF REQUESTS FOR
PRODUCTION
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, HAK-
SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
Additional Counsel for Defendant-Intervenors
ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
Jordan W. Lorence (DC Bar No. 385022)*

jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant-Intervenors object
and respond as follows to Plaintiffs’ First Set of Requests for Production (“Requests”),
propounded on August 21, 2009.
GENERAL OBJECTIONS
1. Defendant-Intervenors, in a letter to the Court, have sought leave to file a Motion for a
2
PRODUCTION
Protective Order. That letter details, and the motion will detail, Defendant-Intervenors’ objections
to these Requests on grounds of both relevance and First Amendment privilege. Any and all
objections contained in the letter and motion are incorporated herein as objections to these
Requests as if each of these arguments was separately and specifically set forth herein.
2. Defendant-Intervenors object to the Requests to the extent that they purport to call for
the disclosure of any information or document that (a) contains privileged attorney-client
communications, (b) constitutes attorney work product, or (c) is otherwise protected from
disclosure under applicable privileges, immunities, laws or rules. Subject to the objections
detailed herein, including objections to having to undertake the burden of reviewing and/or logging
documents implicated by these Requests, Defendant-Intervenors will produce as soon as possible
following the completion of the production of documents a log of all responsive documents that
have been withheld from production pursuant to this objection and that Defendant-Intervenors are
required to review and/or log pursuant to the Federal Rules of Civil Procedure and/or any existing
or future order of the Court.
3. Defendant-Intervenors object to these Requests to the extent that any of the Requests
individually or collectively when coupled with Plaintiffs’ Instructions for production would require
the production or logging of communications and documents from the files of any of Defendant-
Intervenors’ litigation counsel regarding this litigation. Based on the meet-and-confer between
counsel on September 4, 2009, it is Defendant-Intervenors’ understanding that Plaintiffs have
agreed to narrow their Requests so as not to implicate information from the files of litigation
counsel. To the extent this understanding is incorrect, Defendant-Intervenors note for the record
their objection. Because any responsive information and materials would be held uniquely by such
an attorney (as distinct from the Proponents, who are themselves producing responsive information
and materials), they would be privileged or otherwise protected work product, virtually by
3
PRODUCTION
definition. It would be unduly burdensome, unhelpful to all concerned, and gravely prejudicial to
this overall production effort were these Requests to reach Defendant-Intervenors’ attorneys who
are specifically providing legal counsel in this matter. There simply is no way to compile a
comprehensive privilege log detailing all privileged materials in the possession of Defendant-
Intervenors’ litigation counsel while accomplishing document production on this timetable, and
under these circumstances; nor would it be reasonable or productive to require Defendant-
Intervenors to do so.
4. Defendant-Intervenors object to the Requests to the extent that they seek information,
documents, or other materials protected from disclosure by the First Amendment. Defendant-
Intervenors incorporate herein as objections to these Requests the letter to the Court seeking leave
to file a Motion for a Protective Order and any and all arguments that will be set forth in that
Motion when it is filed as if each of these arguments was separately and specifically set forth
herein. Communications that reflect core First Amendment activity—e.g., political views,
legislative or political strategy, religious beliefs, voter intent, political speech, and associational
activity—are not an appropriate subject of discovery and are protected from disclosure under
applicable law.
5. Defendant-Intervenors also object to the Requests and their accompanying instructions as
unduly burdensome and beyond the scope of obligations imposed by the Federal Rules of Civil
Procedure to the extent that they seek documents and information that are publically available
and/or otherwise in the custody and control of third-parties. To the extent Plaintiffs’ Requests
place an obligation on Defendant-Intervenors to produce documents and information from entities
and/or individuals who are not uniquely within Defendant-Intervenors’ custody and control, the
Requests are objectionable. See Fed. R. Civ. P. 26(b)(2)(C)(ii).
6. Defendant-Intervenors object to these Requests to the extent they call for documents
4
PRODUCTION
irrelevant to any issue in this case. Because virtually all of the discovery sought by these Requests
is legally irrelevant and not designed to lead to the discovery of admissible evidence, it would be
objectionably burdensome for Defendant-Intervenors to have to collect, review, produce, and/or
log all such documents. Because of the irrelevant nature of these materials, the time and expense
that would be required to gather and produce them cannot be reasonably justified.
7. Because they are publicly available, and in an effort to minimize dispute, we are producing
public advertisements and communications (such as newspaper advertisements, the text of radio
advertisements, and the content of social networking posts available to the electorate at large) that
were actually communicated to the electorate at large. We do not, however, concede that these
documents are properly discoverable, legally relevant, or constitute competent evidence in this
case.
8. Defendant-Intervenors object to these Requests, for the reasons stated herein and in the
Motion for a Protective Order we intend to file, which is incorporated herein by reference, to the
extent they seek drafts and other pre-decisional documents or communications associated with
preparing final documents or communications regarding Proposition 8 that were actually
disseminated to the electorate at large. These documents are legally irrelevant and protected from
disclosure by the First Amendment.
9. Defendant-Intervenors object to these Requests and accompanying Instruction No. 7 to the
extent they call for the production of documents and information postdating the passage of
Proposition 8 in November of 2008. Not only are such communications and materials irrelevant to
any conceivable issue in this lawsuit, their disclosure will violate Defendant-Intervenors’ First
Amendment rights. Defendant-Intervenors specifically incorporate herein by reference the
arguments made in the Motion for a Protective Order we intend to file regarding why such post-
election documents and communications are not an appropriate subject of discovery.

5
PRODUCTION
10. Defendant-Intervenors object to these Requests as vague, ambiguous and/or unduly
burdensome to the extent that the terms “public” and “third-party” are not defined and/or limited in
any way, and taken at face value would encompass all communications Defendant-Intervenors
may have had with any “third party”—even a single individual, whether or not a California
voter—bearing any relationship to Proposition 8 whatsoever. Such documents include, but are not
limited to, communications with individual donors, volunteers, or voters; communications with
political strategists and other agents or contractors of the Proponents or Committee; and
communications with friends, colleagues, and casual acquaintances. Moreover, Plaintiffs seek
these communications regardless of whether they relate to the public understanding of or
motivation for enacting Proposition 8. This presents not only First Amendment concerns, but also
creates an undue burden on Defendant-Intervenors in attempting to gather, review, and produce all
such communications.
11. Defendant-Intervenors object to these Requests to the extent they prematurely call for
specific information that need not be made available under the Court’s orders and/or is otherwise
unavailable to the Defendant-Intervenors in its final form at this time. As such, Defendant-
Intervenors must caution that, although they are answering these Requests to the best of their
present ability subject to the objections noted herein, the information contained herein is
necessarily and expressly subject to change and to supplementation as circumstances associated
with and surrounding this litigation continue to develop and unfold in the coming weeks.
12. Defendant-Intervenors’ responses to these Requests are subject to the understanding, based
on an exchange of correspondence between counsel and a telephonic meet and confer, that
Plaintiffs are not requesting internal communications among and between the Defendant-
Intervenors. By letter of August 30, Plaintiffs stated that they “do[] not seek internal
communications among and between [Defendant-Intervenors] regarding Proposition 8 and the

6
PRODUCTION
related political campaign, except to the extent that you deem such communications responsive to
Requests Nos. 9, 10, 13, 14, or 15.” Requests Nos. 9, 10, 13, and 14 seek “[a]ll documents that
tend to support or refute” the claims, denials, assertions, arguments, or responses made in
Defendant Intervenors Answer (Doc. # 9), Memorandum in Opposition to Motion for Preliminary
Injunction (Doc. # 36), responses to Plaintiffs’ Interrogatories Nos. 1-3 and Requests for
Admission Nos. 1-68 propounded on August 21, 2009. By telephone conference of September 4,
2009, Defendant-Intervenors explained that because our position is that all internal
communications are legally irrelevant to any claim in this case, we “deem such communications”
as “tend[ing] [neither] to support or refute” any claim or argument in this case. Plaintiffs appeared
to accept this as a permissible interpretation of these Requests. To the extent Defendant-
Intervenors have misunderstood Plaintiffs’ agreement to narrow their requests in this regard,
Defendant-Intervenors note their objection to producing any internal communications and
incorporate herein by reference the arguments against production that will be set forth in the
Motion for a Protective Order that we have sought leave of Court to file. Defendant-Intervenors
also note that disagreement still exists as to which persons and/or entities should properly be
considered “internal” to Defendant-Intervenors; we preserve herein our objections to an overly
expansive or overly narrow definition of that term.
Subject to and without waiving any of the foregoing General Objections, which are hereby
incorporated into each response given below, Defendant-Intervenors are answering these Requests
in substance to the extent practicable and reasonable under the present circumstances, as stated
below. Defendant-Intervenors hereby object and respond to the individual Requests as follows:
SPECIFIC OBJECTIONS AND RESPONSES
REQUEST FOR PRODUCTION NO. 1:
7
PRODUCTION
All documents constituting literature, pamphlets, flyers, direct mail, advertisements, emails,
text messages, press releases, or other materials that were distributed to voters, donors, potential
donors, or members of the media regarding Proposition 8.
RESPONSE:
Defendant-Intervenors reiterate their General Objections as if specifically set forth below in
response to this Request. Defendant-Intervenors object to this Request as calling for irrelevant
documents and documents privileged from disclosure under the First Amendment. Defendant-
Intervenors further specifically object to this Request to the extent it calls for the production of
documents and information to “donors” or “potential donors.” Defendant-Intervenors further
specifically object to this Request to the extent it calls for production of documents and
information that are not relevant and/or protected by the First Amendment—including documents
not distributed to the electorate at large. Defendant-Intervenors incorporate by reference the
objections and explanations in our Motion for a Protective Order, which we have sought leave of
Court to file.
Subject to and without waiving any objection, and without conceding the relevancy of any
materials being produced in response to this Request, Defendant-Intervenors will produce final
copies of public communications responsive to this Request that were distributed to and or
available to the electorate at large.
All versions of any internet advertisement relating to Proposition 8.
RESPONSE:
8
PRODUCTION
Intervenors’ object to producing drafts of final public communications, which would include, e.g.,
non-public versions of Internet advertisements relating to Proposition 8 that were never actually
posted on the Internet. Defendant-Intervenors object to this Request to the extent it calls for
production of documents not available to the electorate at large (e.g., Internet communications of
limited or invite-only distribution). Defendant-Intervenors also specifically object to this Request
to the extent it calls for the production of material from the Internet that is not uniquely within
Defendant-Intervenors’ custody or control in violation of Fed. R. Civ. P. 26(b)(2)(C)(i). To the
extent there were or are Internet advertisements related to Proposition 8 posted on the Internet by
persons or entities other than the Defendant-Intervenors, that information is as equally available to
Plaintiffs as it is to Defendant-Intervenors and thus is not the proper subject of discovery to
Subject to and without waiving these objections, and without conceding the relevancy of
any materials being produced in response to this Request, Defendant-Intervenors will produce final
versions of internet advertisements posted on the internet by Defendant-Intervenors.
All versions of any television advertisement relating to Proposition 8.
RESPONSE:
Intervenors’ object to producing drafts of final public communications, which would include non-
public versions of television advertisements relating to Proposition 8 that were never actually
aired. Defendant-Intervenors object to this Request to the extent it calls for production of
9
PRODUCTION
documents not available to the electorate at large. Defendant-Intervenors also specifically object
to this Request to the extent it calls for the production of material not uniquely within Defendant-
Intervenors’ custody or control in violation of Fed. R. Civ. P. 26(b)(2)(C)(i). To the extent there
were television advertisements related to Proposition 8 aired by persons or entities other than
Defendant-Intervenors, that information is as equally available to Plaintiffs as it is to Defendant-
Intervenors and thus is not the proper subject of discovery to Defendant-Intervenors.
versions of any television advertisements created by or for Defendant-Intervenors that were
actually aired on television.
All versions of any radio advertisement relating to Proposition 8.
RESPONSE:
public versions of radio advertisements relating to Proposition 8 that were never actually aired.
Defendant-Intervenors object to this Request to the extent it calls for production of documents not
available to the electorate at large. Defendant-Intervenors also specifically object to this Request
to the extent it calls for the production of material not uniquely within Defendant-Intervenors’
custody or control in violation of Fed. R. Civ. P. 26(b)(2)(C)(i). To the extent there were radio
advertisements related to Proposition 8 created by persons or entities other than Defendant-
10
PRODUCTION
Intervenors, that information is as equally available to Plaintiffs as it is to Defendant-Intervenors
and thus is not the proper subject of discovery to Defendant-Intervenors.
versions of radio advertisements created by or for Defendant-Intervenors that were actually aired
on the radio.
All plans, schematics, and versions of the websites that have ever been available at the URLs
http://www.protectmarriage.com or http://www.protectmarriage.net.
RESPONSE:
public versions of websites relating to Proposition 8 that were never actually accessible by the
electorate at large. Defendant-Intervenors object to this Request to the extent it calls for
production of documents not available to the electorate at large.
versions of Internet pages posted on the URLs http://www.protectmarriage.com or
http://www.protectmarriage.net.
11
PRODUCTION
REQUEST FOR PRODUCTION NO.6:
All documents constituting communications prepared for public distribution and related to
Proposition 8, including without limitation speeches, scripts, talking points, articles, notes, and
automated telemarketing phone calls.
RESPONSE:
Intervenors’ object to this Request to the extent it calls for drafts of final public communications,
which would include non-public versions of documents relating to Proposition 8 that were never
actually distributed or available to the public at large. Defendant-Intervenors object to this
Request to the extent it calls for production of documents not available to the electorate at large.
For example, documents “prepared for public distribution” but never actually publicly distributed
are both irrelevant and privileged under the First Amendment. Defendant-Intervenors object to the
“term” public as vague, ambiguous, undefined, and not reasonably narrowed.
versions of documents responsive to this Request that are outside the scope of our objections.

All documents constituting postings related to Proposition 8 that were made by you on social
networking websites, including but not limited to Facebook, MySpace, and Twitter.
12
PRODUCTION
RESPONSE:
Intervenors object to this Request to the extent it calls for production of documents not available to
the electorate at large. Defendant-Intervenors further specifically object to this Request to the
extent it purports to reach the non-public communications and postings of individual Defendant-
Intervenors on their personal (as opposed to postings publicly accessible by any member of the
electorate at large) social-networking sites. While Defendant-Intervenors do not, at this time,
believe that any such postings exist, were such postings to exist Defendant-Intervenors would
object to producing them, as this would violate their First Amendment rights and call for
information that is entirely irrelevant to any issue in this matter. Thus, to the extent any such
postings do exist, Defendant-Intervenors object to their production.
any materials being produced in response to this Request, Defendant-Intervenors will produce
postings on Defendant-Intervenors’ public social networking sites.

All versions of any documents that constitute communications relating to Proposition 8,
between you and any third party, including, without limitation, members of the public or the
media.
RESPONSE:
13
PRODUCTION
the electorate at large. Defendant-Intervenors’ object to producing drafts of final public
communications, which would include non-public versions of communications relating to
Proposition 8 that were never available to the electorate at large. Defendant-Intervenors object to
the phrases “any third party” and “members of the public” as vague, ambiguous, not defined, and
not reasonably narrowed. Defendant-Intervenors further specifically object to this Request as
impermissibly vague, ambiguous and/or unduly burdensome. It is unclear what additional
communications apart from those already requested in Request Nos. 1 to 7 are being requested
here. On its face, this Request appears to be seeking any communication related to Proposition 8
in any way, whether or not it is related to a public communication to the California electorate at
large or was actually available to the electorate at large. This Request appears to include, for
example: any and all communications Defendant-Intervenors may have had with their vendors,
consultants, donors, members, friends, associates, or other correspondents; disclosure reports
posted and available on public websites; and even pleadings filed in this case. In addition to being
objectionable on First Amendment grounds as set forth above and in the Motion for a Protective
Order that Defendant-Intervenors’ have sought leave to file, which is incorporated herein by
reference, this incredibly broad Request is objectionable because of the undue burden it would
impose on Defendant-Intervenors if we were to gather, review, log and/or produce all responsive
materials, the overwhelming majority of which are irrelevant to any issue in dispute in this case in
violation of Fed. R. Civ. P. 26(b)(2)(C)(iii).
Based on the objections asserted above, Defendant-Intervenors have no additional
documents to produce at this time.
14
PRODUCTION
All documents that tend to support or refute the claims, denials, or assertions made in your
[Proposed] Answer in this litigation (Doc #9).
RESPONSE:
response to this Request. In particular, Defendant-Intervenors reiterate General Objection No. 12.
Defendant-Intervenors object to this Request to the extent it calls for irrelevant documents and
documents protected from disclosure under the First Amendment. Defendant-Intervenors further
specifically object to this Request to the extent it purports to call for either the production of
documents that are protected by the attorney work-product privilege and/or are publically available
and thus as readily available to Plaintiffs as they are to Defendant-Intervenors. See Fed. R. Civ. P.
26(b)(2)(C)(i). For example, Defendant-Intervenors specifically object to this Request to the
extent it purports to call for the production of publically available information such as research or
news articles, statistical data and information, Internet postings, pleadings in this and other cases,
etc.
Subject to and without waiving these objections, because Defendant-Intervenors’ position
is that all documents implicated by these Requests, apart from those objected to on the grounds
that they are work product and/or are publically available, are legally irrelevant to any claim in this
case. Unless and until a court with jurisdiction over this case rules otherwise Defendant-
Intervenors “deem such communications” as “tend[ing] [neither] to support or refute” any claim or
argument in this case, and thus have no responsive documents to produce.
All documents that tend to support or refute the arguments made in your Memorandum in
Opposition to Motion for Preliminary Injunction in this litigation (Doc #36).
15
PRODUCTION
RESPONSE:
26(b)(2)(C)(i). For example, Defendant-Intervenors object to this Request to the extent it purports
to call for the production of publically available information such as research or news articles,
statistical data and information, Internet postings, pleadings in this and other cases, etc..
Documents sufficient to show the title of everyone employed by Protect Marriage, at any time,
including but not limited to organizational charts.
RESPONSE:
16
PRODUCTION
documents. Defendant-Intervenors object to this Request as calling for documents privileged from
disclosure under the First Amendment, such as membership lists, organizational charts, and other
documents identifying individuals involved or associated with Defendant-Intervenors. Defendant-
the electorate at large.
Without waiving these objections, Defendant-Intervenors state that Protectmarriage.com –
Yes on 8, a Project of California Renewal (the “Committee”), a “primarily formed ballot measure
committee” under the California Political Reform Act, has a single officer responsible for filing
required public disclosures – David Bauer. Unofficially, the Committee had many volunteers with
varying levels of involvement and input. Several of those individuals served as agents for other
organizations with an interest in the marriage debate, but none of these individuals were
“employees” of the Committee while the Proposition 8 campaign was ongoing. Producing any
further information about the volunteers and members of Protect Marriage.com is objectionable on
First Amendment grounds, and further, to the extent the identity of volunteers and members of
Protect Marriage.com is already in the public realm, Plaintiffs can obtain this information from
that source without the need for a production from Defendant-Intervenors.
All documents reflecting public media coverage of Proposition 8.
RESPONSE:
17
PRODUCTION
the electorate at large. Defendant-Intervenors’ object to producing drafts of final public
communications, which would include non-public versions of documents relating to Proposition 8
that were never available to the electorate at large. Defendant-Intervenors further specifically
object to this Request to the extent it purports to call for the production of publically available
information that is not uniquely within Defendant-Intervenors’ custody and control and is as
readily available to Plaintiffs as it is to Defendant-Intervenors. See Fed. R. Civ. P. 26(b)(2)(C)(i).
To the extent Plaintiffs wish to review the public media coverage of Proposition 8, they can access
such materials just as easily as Defendant-Intervenors. Defendant-Intervenors further object to this
Request to the extent it calls for collections, compilations, summaries, or analysis of public media
coverage that may have been created by Defendant-Intervenors for personal, political, strategic, or
other reasons.
Subject to and without waiving these objections, and without conceding the legal relevancy
of such materials, Defendant-Intervenors will produce documents created by Defendant-
Intervenors and produced to the media for dissemination to the electorate at large.
All documents that tend to support or refute your responses to Plaintiffs’ Interrogatories
Nos. 1-3 propounded on August 21, 2009.
RESPONSE:
18
PRODUCTION
26(b)(2)(C)(i). Plaintiffs’ Interrogatories Nos. 1-3 specifically sought information related to the
legal contentions of Defendant-Intervenors regarding what governmental interests they contend are
important, legitimate, or compelling. Any information and/or documents that Defendant-
Intervenors have compiled to assess, support, and/or respond to these Interrogatories and/or to
evaluate these legal issues constitute work product that is not subject to disclosure. Further, to the
extent a response to Plaintiffs’ Interrogatories 1 to 3 can be found in the caselaw, such caselaw is
as readily available to Plaintiffs as it is to Defendant-Intervenors.
All documents that tend to support or refute any one of your responses to Plaintiffs’
Requests for Admission Nos. 1-68, propounded on August 21, 2009, that is not an unequivocal
admission.
RESPONSE:
19
PRODUCTION
documents that are protected from disclosure under the First Amendment. Defendant-Intervenors
further specifically object to this Request to the extent it purports to call for either the production
of documents that are protected by the attorney work-product privilege and/or are publically
available and thus as readily available to Plaintiffs as they are to Defendant-Intervenors. See Fed.
R. Civ. P. 26(b)(2)(C)(i).
All documents that you intend to use as exhibits at trial in this litigation.
RESPONSE:
Defendant-Intervenors object to responding to this Request at this time as the Request is
premature. Discovery is not yet complete and a final list of trial exhibits has not yet been compiled.
Defendant-Intervenors further object to this Request to the extent it purports to impose obligations
beyond those set forth in the case management orders of the Court pertaining to the timing and
disclosures of exhibit lists and exhibits. Subject to and without waiving this objection, Defendant-
Intervenors note that they will, consistent with the Orders of this Court, produce at the appropriate
time all documents (apart from documents that may used for purposes of cross-examination or
impeachment) they intend to use as exhibits at trial.
20
PRODUCTION
September 11, 2009

COOPER AND KIRK, PLLC
ATTORNEYS FOR DEFENDANTS-INTERVENORS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, HAK-SHING WILLIAM
TAM, MARK A. JANSSON, AND
PROTECTMARRIAGE.COM – YES ON 8, A PROJECT
OF CALIFORNIA RENEWAL
By:/s/Charles J. Cooper
Charles J. Cooper
21
PRODUCTION
Exhibit D
Exhibit E
Exhibit F
F-1
http://www.dennisherrera.org/about?id=0001
Dennis Herrera for San Francisco City Attorney (http://www.dennisherrera.org/)
Biography
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San Francisco City

Attorney Dennis Herrera
leads an office that has
won national acclaim as
one of the most talented,
progressive and innovative
public law offices in the
nation.
The first Latino ever to hold

the office, Dennis was
elected City Attorney of
San Francisco in 2001 on a
pledge to defend the
integrity of our public
institutions, to expand
neighborhood protection
efforts, and to enhance local government's accountability to its citizens and taxpayers. But it has been
several of his bolder, affirmative litigation efforts for which Herrera has earned his national reputation.
He filed the first government litigation in American history to challenge the constitutionality of
marriage laws that discriminate against gay and lesbian couples. His case was among those that
won a landmark 2008 decision that not only toppled the discriminatory marriage exclusion, but
solidified civil rights protections for lesbians and gay men from discrimination in California.
He led the nation’s only public sector intervention to challenge the constitutionality of the Bush
Administration's federal abortion ban, representing public hospitals and clinics that are often a
safety net of last resort for poor and underserved women, and fighting to protect women’s right
to reproductive choice all the way to the U.S. Supreme Court.
He led the groundbreaking public integrity investigation and lawsuit on behalf of the San Francisco
9/22/2009 9:32 AM
http://www.dennisherrera.org/about?id=0001
Unified School District that blew the whistle on a nationwide scam to defraud the federal E-Rate
program, which helps expand access to technology to America's poorest school districts. His
testimony before Congress on the case helped establish lasting protections against waste, fraud
and abuse for countless public school children.
Beyond his role as City Attorney, Herrera is active participant in numerous local, state and national
organizations. He serves on the board of the Hunter’s Point Boys and Girls Club, and helps to impart his
love of sports and recreation by helping to coach local youth soccer and baseball programs. He worked
tirelessly to raise money statewide to support the 2008 campaign to defeat Proposition 8. He was
chosen to serve on a judicially appointed committee on the independence of the judiciary, and he has
spoken and written extensively on the importance of protecting our judicial branch of government from
cynical political attacks. He also serves on the board of the American Constitution Society, a prestigious
and influential national legal organization past leadership includes U.S. Attorney General Eric Holder and
others.
Herrera was born on November 6, 1962 in Bay Shore, New York, and grew up in the nearby Long
Island community of Glen Cove. He obtained his bachelor's degree at Villanova University in
Pennsylvania, and went on to earn his juris doctor from the George Washington University School of
Law in Washington, D.C. He was admitted to the California Bar in 1989.
With the inauguration of President Bill Clinton in January 1993, Herrera was appointed to the U.S.
Maritime Administration in Washington, D.C., where he served under Transportation Secretary Federico
Pena and helped lead implementation of the National Shipbuilding Initiative and Maritime Security
Program. Herrera later returned to private practice in San Francisco as a partner in the maritime law
firm of Kelly, Gill, Sherburne & Herrera, but remained active in local community service. He was
appointed to the City's Transportation Commission by then-Mayor Willie L. Brown Jr., who later named
him to the San Francisco Police Commission.
Herrera won high marks from police accountability advocates and police officers’ association leaders
alike for his fair-minded temperament and focus on bridging divides and solving problems. He would
later be elected Police Commission President. As a commissioner, Herrera led a groundbreaking effort
to develop police department protocols to assure fair treatment and protect the dignity of transgendered
people.
Dennis Herrera and his wife, Anne, live in the Potrero Hill neighborhood of Dogpatch, with their seven-
year-old son, Declan.
9/22/2009 9:32 AM
F-2
http://blogs.sfweekly.com/thesnitch/2009/01/so_city_attorney_dennis_herrer.php
So City Attorney Dennis Herrera Was on 'No

on 8' Executive Committee -- Can He Do That?
And What Will Enraged LGBT Activists Think?
By Joe Eskenazi in Government, Politics Friday, Jan. 23 2009 @ 6:30AM
If LGBT activists excoriate Dennis Herrera for his role on the No on Prop. 8 executive
committee, then he'll be feeling the heat from all sides
This week, after months of rancor and a public records request, the names of the
16 folks on the No on Prop. 8 executive committee began circulating on the
Internet. Very quickly, this became a case of indignant LGBT blogger see,
indignant LGBT blogger link.
We couldn't help but notice that one of the 16 folks mentioned is City Attorney
Dennis Herrera. This prompts two questions: Is a city attorney legally allowed to
serve on the executive board of a statewide political action committee, potentially
charting strategy, allotting millions of dollars, and fund-raising from folks he may
well see in court one day?
And, secondly, we've written how Herrera's tenacious legal work on behalf of
advancing gay marriage has helped make him a solid mayoral candidate. Does
serving on the executive committee of the organization that laid a $45 million egg
and lost the electoral fight for marriage equality tarnish his candidacy?
The answer to these questions, respectively, are "yes" and "perhaps." Let us
explain.
The handful of California legal and good-government experts SF Weekly called

could not recall a single instance in which a city attorney was so heavily involved in
a major statewide political campaign (face it, San Francisco is just a political
town).
That being said, all agreed that while Herrera's involvement was highly unusual, it
was also certainly legally permissible.
"It's unusual for a city attorney to get involved in a statewide race. But this was an
unusual race and an unusual election issue that affected San Francisco more than
most other statewide measures," said Bob Stern, president of Los Angeles' Center
for Governmental Studies and a former general counsel for the Fair Political
Practices Commission. "Herrera was bringing the lawsuit, not judging it."
(Incidentally, San Francisco law prohibits the city attorney from weighing in on
local candidates and ballot measures.).
Derek Cressman, the western states regional director of California Common Cause,
also saw nothing improper about San Francisco's city attorney serving on a
statewide PAC But he did perceive one red flag: "If Herrera was in a position
9/22/2009 9:34 AM
F-3
STATEMENT OF ORGANIZATION
Statement of Organization
Type or print in ink Date Stamp
Recipient Committee CALIFORNIA
FORM 410
Statement Type Initial Amendment Termination - See Part 5 For Official Use only
List I.D. number: List I.D. number:
Not yet qualified or Page 7
# 1259396 #
10/3/2003
Date qualified as committee Date qualified as committee Date of Termination
(If applicable)
1. Committee Information 2. Treasurer and Other Principal Officers

NAME OF COMMITTEE NAME OF TREASURER
No on 8, Equality for All
STREET ADDRESS
CITY STATE ZIP CODE AREA CODE/PHONE

STREET ADDRESS (NO P. O. BOX)
NAME OF ASSISTANT TREASURER, IF ANY
STREET ADDRESS
MAILING ADDRESS (IF DIFFERENT)

Case3:09-cv-02292-VRW Document197-7
OPTIONAL: FAX/E-MAIL ADDRESS NAME AND POSITION OF OTHER PRINCIPAL OFFICER(S), IF APPLICABLE
Dennis Herrera
COUNTY OF DOMICILE COUNTY WHERE COMMITTEE IS ACTIVE IF DIFFERENT
THAN COUNTY OF DOMICILE MAILING ADDRESS

San Francisco CA 94102 415-554-4700
Attach additional information on appropriately labeled continuation sheets.
3. Verification
I have used all reasonable diligence in preparing this statement and to the best of my knowledge the information contained herein is true and complete. I certify under
penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on By
DATE SIGNATURE OF TREASURER OR ASSISTANT TREASURER
Executed on By
Filed09/22/09 Page8 of 15
DATE SIGNATURE OF CONTROLLING OFFICEHOLDER, CANDIDATE, OR STATE MEASURE PROPONENT
Executed on By
Executed on By
FPPC Form 410 (Jan/01)

FPPC Toll-Free Helpline: 866/ASK-FPPC
1073895-6
F-4
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http://www.eqca.org/site/apps/cd/content.asp?c=kuLRJ9MRKrH&b=4028667&event_id=%7B2B14FBBF-452E-4661-8FE5-B862BFC8764E%7D&c...
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Events
You Are Cordially Invited to Join Event Champions and Chairs for
An Evening to Benefit the No On 8 Campaign
Special performance by Melissa Etheridge and Mary J. Blige
Tuesday, October 21
6:30 p.m.
At the home of Ron Burkle

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Beverly Hills
Champions: Steve Bing, David C. Bohnett & Tom Gregory, Jonathan Lewis
Chairs: John & Mike August, Ron Burkle, Kate Capshaw & Steven Spielberg, Bruce Cohen &
Gabe Catone, David Geffen, Chad Griffin, Frank Pond, Hon. Dennis Herrera, Hon. Gavin
Newsom, Hon. Fabian Nuñez, Hon. Antonio Villaraigosa, Equality California - Geoff
Kors, Human Rights Campaign - Joe Solmonese, L.A. Gay & Lesbian Center - Lorri L.
Jean, National Center for Lesbian Rights - Kate Kendell
Honorary Chair: Barbra Streisand
Hosts: Julie Anderson & Amy Dantzler, Tess Ayers & Jane Anderson, Shelley Freeman, Susan
Feniger & Dean Hansell, Jason Hendler & Chad Billmyer, John Gile, Jeffrey & Marilyn
Katzenberg, Kathy Kennedy & Frank Marshall, Jonathan King, Hugh Kinsellagh & Dana Perlman,
Kelly Lynch & Annie Goto, Rayman Mathoda & Avantika Shahi, Gary Meade, Bill Resnick & Doug
Cordell, Dan Ricketts & Steve Frankel, Fred Paul & Eric M. Shore, Joel Safranek, Lorraine & Sid
Sheinberg
Sponsors: Steve Afriat & Curtis Sanchez, Jehan F. Agrama & Dwora Fried, Mark Baer, Tammy
Billik, Ilene Chaiken, Elizabeth Chase & Janelle Eagle, Chris Cook, Clifford Davidson & Andy
Sfeir, Craig Dougherty & Tony Leonhardt, Brian Hargrove and David Hyde Pierce, Chuck
Henry, Ellen Huang, Barry Karas, Barbara Kaufman, Barton H. Kogan, Kirk & Rob
Marcolina, George Mariella, Jym Genesta & Tommy Chambers, Rafael Medina, Loren Ostrow &
Brian Newkirk, David Pence & Andrew Georgiou & Yael Swerdlow, Vahan Saroians, Rodney
Scott, Curt Shepard & Alan Hergott, Dannielle Thomas, Bart Verry & Mark Arteaga, Lew Wolf
Co-Chairs: Greg Berlanti, Hon. John Duran, Fall Out Boy, Michele & Rob Reiner, Anita May
Rosenstein
List of supporters still in formation.
$1,000 donation per person or $10,000 Event Sponsor includes reception and entertainment
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More Information: www.NoOnProp8.com/laevent
Donate | About | Sponsors | Contact | Privacy Policy | Site Map

Our affiliated organizations: Equality California Institute & Equality California PAC
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Copyright 2008
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Our affiliated organizations: Equality
2005 Press Releases California Institute & Equality
California PAC
2370 Market St. 2nd Floor, San
For Immediate Release: January 21, 2005 Francisco, CA 94114 phone:
415.581.0005 fax: 415.581.0805
EQUALITY CALIFORNIA CO-HOSTS WEEKEND MARRIAGE
SUMMIT AND ACTIVIST TRAINING WITH
ASSEMBLYMEMBER MARK LENO, NCLR AND OTHER LOCAL MySpace | Facebook |
ORGANIZATIONS Twitter | Blogger |
YouTube | Photos
Sunday, January 23rd, 2005, 9:30 AM - 3:30 PM Media Inquiries
State Building, Basement Auditorium Copyright 2008
455 Golden Gate Ave, near the Civic Center in San Media Resources
Francisco 2009 Press Releases
Free Admission/ Refreshments Provided
Comunicados de medios
en español
San Francisco - On Sunday, January 23, 2005, Equality
California is co-hosting a marriage summit and activist Archive
training to give supporters the latest update on the marriage 2008
litigation from the attorneys, legislators and organizations
leading the charge. Press are welcome to attend. The agenda 2007
is below. 2006
2005
10:00-10:15 AM Welcome, Organizational Sponsors
Introduced 2002-2004
10:15-10:45 AM California Litigation Update
Courtney Joslin, NCLR, lead counsel
in marriage litigation
Dennis Herrera, SF City Attorney
Plaintiffs: John Lewis & Stuart
Gaffney
10:45-11:00 AM Assemblymember Mark Leno,AB 19:

Religious Freedom & Marriage Protection Act
11:00-11:10 AM Geoffrey Kors, EQCA Executive

Director
Overview of 2005 Plans to combat
discrimination and secure equality for LGBT families
11:15-12:00 PM Part One of Panel Breakout

Sessions (select one)
1. Building an Asian Pacific Islander Movement for

Marriage Equality (Andy Wong moderator, panelists Felix
Tsai (GAPA) Stuart Gaffney and John Lewis (EQCA/MECA)
2. Building Coalitions: Finding Common Goals and

Strategies with non-LGBTQ Groups
Moderator: Eve Lubalin - PFLAG Statewide Advocacy
Coordinator for CA Panelists include: Nicole Yelich (Political
Organizer, NARAL Pro-Choice California), Diane Harrison (
President and CEO, Planned Parenthood Golden Gate)
3. Prop 54/Three Strikes/Lessons: Moderator: Rafael

Mandelman Panelists include: Maya Harris (Racial Justice
Project, ACLU) Steve Phillips (Power PAC.org), Stephanie
Ong (Hope Road Consulting)
4. Marriage Equality in the Latino Community Moderator:

David Campos Panelists: Mark Sanchez (Commissioner, San
Francisco Board of Education); Victor Marquez (Former
President, La Raza Lawyers Association)
12:00-12:45 PM Lunch (on your own)
12:45-1:30 PM Part Two of Panel Breakout

Sessions (select one)
1) Why Marriage Equality? Why Now?

Moderator: Debra Walker/Michael Goldstein Panelists
include: Leslie Katz (Chair of SF Democratic Party), Joey
Cain (Chair of SF Pride Board), Devina Kotulski (Marriage
Equality)
9/22/2009 9:29 AM

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Case3:09-cv-02292-VRW Document197 Filed09/22/09 Page1 of 15

1 COOPER AND KIRK, PLLC

9 LAW OFFICES OF ANDREW P. PUGNO

12 ALLIANCE DEFENSE FUND

16 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

21 KRISTIN M. PERRY, SANDRA B. STIER,

DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

1 the California Department of Public Health and

17 ALLIANCE DEFENSE FUND

20 Jordan W. Lorence (DC Bar No. 385022)*

DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

TABLE OF AUTHORITIES ................................................................................................................ ii

I. THE DISCOVERY AT ISSUE .................................................................................................... 1

III. FIRST AMENDMENT PRIVILEGE ........................................................................................... 6

Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986)............................................................................ 2, 3, 5

Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) ....................................................................................... 5

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) ..................................................... 7

Dawson v. Delaware, 503 U.S. 159 (1992) ....................................................................................... 10

FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) ................................................................. 2

Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987) .................................................................... 7

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ........................................................... 2

Strom v. United States, 583 F. Supp. 2d 1264 (W.D. Wash. 2008)...................................................... 3

U.S. R.R. Retirement Board v. Fritz, 449 U.S. 166 (1980)................................................................... 2

Washington v. Davis, 426 U.S. 229 (1976) .......................................................................................... 3

Wilkinson v. FBI, 111 F.R.D. 432 (C.D. Cal. 1986) ............................................................................. 8

Fed. R. Evid. 402 .................................................................................................................................. 3

1 I. THE DISCOVERY AT ISSUE

16 statements are neither discoverable nor admissible.

24 public advertising supporting it. See id. at 1113-14.

19 broadly, such a view is no longer tenable.

25 Dated: September 22, 2009 COOPER AND KIRK, PLLC

27 By: /s/Charles J. Cooper

Pls.’ Subpoena to Schubert Flint Public Affairs ............................................................................. A

Pls.’ Subpoena to Connell Donatelli Holdings ............................................................................... B

Letter from Defendant-Intervenors’ to CAEBR. ............................................................................ C

CAEBR’s Objections to Subpoena .................................................................................................D

Fred Karger’s Objections and Responses to Subpoena .................................................................. E

Documents Showing Dennis J. Herrera’s Involvement with anti-Prop. 8 Campaign .................... F

“No on 8, Equality for All” Statement of Organization................................................... F-3

Press Release listing Dennis Herrera as Chair of CAEBR .............................................. F-4

Equality California Press Release re “Activist Training,” list Dennis Herrera as

ALLIACE DEFENSE FUND

September 15, 2009

Via Overnight Delivery and Electronic Mail

Californians Against Eliminating Basic Rights

Re: Perry v. Schwarzenegger,

Dear Mr. Harrison and Ms. Krogseng:

This letter is a follow-up correspondence regarding the subpoena to produce documents

The Proposition 8 Proponents reiterate, as we indicated in the cover letter that

Thank you for your assistance in this matter.

cc: All counsel of record

COOPER AND KIRK, PLLC

LAW OFFICES OF ANDREW P. PUGNO

ALLIANCE DEFENSE FUND

ATTORNEYS FOR DEFENDANT-INTERVENOR DENNIS HOLLINGSWORTH,

* Admitted pro hac vice

UNITED STATES DISTRICT COURT

KRISTIN M. PERRY, SANDRA B. STIER,

ARNOLD SCHWARZENEGGER, in his official

Director of Health Information & Strategic

PROPOSITION 8 OFFICIAL PROPONENTS

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUND

Jordan W. Lorence (DC Bar No. 385022)*