3:09-cv-02292 #491

Case3:09-cv-02292-VRW Document491 Filed01/19/10 Page1 of 6
1 LYNN H. PASAHOW (CSB NO. 054283)

lpasahow@fenwick.com
2 CAROLYN CHANG (CSB NO. 217933)
cchang@fenwick.com
3 LESLIE KRAMER (CSB NO. 253313)
lkramer@fenwick.com
4 LAUREN WHITTEMORE (CSB NO. 255432)
lwhittemore@fenwick.com
5 FENWICK & WEST LLP
555 California Street, Suite 1200
6 San Francisco, CA 94104
Telephone: (415) 875-2300
7 Facsimile: (415) 281-1350
8 Attorneys for Third-Party Equality California
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12 KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW

F ENWICK & W EST LLP
PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

13
ATTORNEYS AT LAW
SAN FRANCISCO
Plaintiffs, EQUALITY CALIFORNIA’S

14 v. OPPOSITION TO DEFENDANT-
INTERVENORS’ MOTION TO
15 ARNOLD SCHWARZENEGGER, in his official SHORTEN TIME FOR RESPONSE
capacity as Governor of California; EDMUND G. TO AND HEARING OF MOTION
16 BROWN, JR., in his official capacity as Attorney TO COMPEL
General of California; MARK B. HORTON, in his
17 official capacity as Director of the California
Department of Public Health and State Registrar of Trial: January 11, 2010
18 Vital Statistics; LINETTE SCOTT, in her official Judge: Chief Judge Vaughn R. Walker
capacity as Deputy Director of Health Information & Location: Courtroom 6, 17th Floor
19 Strategic Planning for the California Department of
Public Health; PATRICK O’CONNELL, in his
20 official capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
21 capacity as Registrar-Recorder/County Clerk for the
County of Los Angeles,
22
Defendants,
23 and
24 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
25 MARTIN F. GUTIERREZ, HAK-SHING
WILLIAM TAM, and MARK A. JANSSON; and
26 PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL,
27
Defendant-Intervenors.
28
OPPOSITION TO MOTION TO SHORTEN TIME
FOR RESPONSE AND HEARING ON MOTION TO CASE NO. 09-CV-2292 VRW
COMPEL COMPLIANCE WITH DOC SUBPOENAS
1 INTRODUCTION
2 Without meeting and conferring as required by the Local Rules, Defendant-Intervenors
3 Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and
4 ProtectMarriage.com (“Proponents”) filed their Motion to Shorten Time for Response to and
5 Hearing of Motion to Compel (the “Motion”) against third party Equality California (“EQCA”)
6 on January 15, 2010. Rather than making any meaningful effort to reach an agreement with
7 EQCA on a shortened briefing schedule, less than eight hours before filing the motion Proponents
8 emailed EQCA with two options – either (1) agree to an immediate production or (2) agree to file
9 an opposition to the motion to compel three non-business days later on Martin Luther King, Jr.
10 Day—a federal holiday. Declaration of Leslie Kramer (“Kramer Decl.”) Ex. D. EQCA
11 responded that it was not in a position to prepare and file an opposition by Monday in light of the
12 federal holiday, but that it was willing to discuss the issue further. Kramer Decl. Ex. E.
13 Proponents’ sudden urgency and claimed prejudice comes in the middle of trial—well
ATTORNEYS AT LAW
SAN FRANCISCO
14 after the close of discovery, ignoring the fact that they have been in possession of EQCA’s
15 objections since September of last year. Rather than challenge EQCA’s objections to the
16 subpoenas or even discussing the issue directly with EQCA while discovery was open,
17 proponents tactically opted not to and presumably only do so now because of an order compelling
18 the production of documents against it. Now during trial, Proponents seek to impose an
19 extremely burdensome schedule on several third parties including EQCA, despite the fact by their
20 own admission that such requests implicate “thousands of relevant documents.” Motion to
21 Compel at 5. As the close of discovery, as well as the deadline for compelling discovery, has
22 long passed, Proponents requests for additional, albeit irrelevant, documents from EQCA is
23 simply too late, and no good cause exists to justify such untimely requests.
24 While EQCA maintains that any urgency is entirely the result of Proponents own
25 decisions, it understands that this matter is in trial and that some abbreviated briefing schedule on
26 Proponents untimely motion to compel may be required. As such, EQCA proposes that, if the
27 Court determines that Proponents’ motion to compel should be heard, its opposition be filed with
28
FOR RESPONSE AND HEARING ON MOTION TO 1 CASE NO. 09-CV-2292 VRW
1 the Court on Monday, January 25 along with any other third party oppositions.1
2 STATEMENT OF FACTS
3 Proponents served their first subpoena on EQCA on August 27, 2009. Proponents’
4 Exhibit to Motion to Compel (Dkt. # 472) (“Prop. Ex.”) 1. EQCA served its objections on
5 September 17, 2009 raising a number of objections and agreeing to produce all responsive, non-
6 privileged public documents in response to requests 1, 2, and 5-8. Prop. Ex. 4. EQCA explained
7 that non-public “materials advocating against Proposition 8 cannot demonstrate why Proposition
8 8 was enacted, or on what basis it was enacted, and therefore such materials are not relevant to
9 any legal claim or defense, nor are they reasonably calculated to lead to the discovery of
10 admissible evidence.” Id.
11 EQCA has been unequivocal in its position that non-public documents from a third party
12 opponent are not relevant to this dispute. As such, it has repeatedly explained to Proponents that
13 any discovery obligations of Proponents are not applicable to those of third party opponents, such
ATTORNEYS AT LAW
SAN FRANCISCO
14 as EQCA. Kramer Decl. Exs. A, B. Wholly ignoring these objections, Proponents issued a
15 second, largely duplicative subpoena on November 16. Prop. Ex. 2. ECQA again objected on the
16 same grounds on November 23. Prop. Ex. 4. On December 8, 2009, EQCA produced all
17 relevant, non-privileged public documents in response to the subpoenas. Kramer Decl. ¶ 4, Ex.
18 C.
19 Then, after not hearing a word from Proponents in nearly two months, EQCA received a
20 letter on Tuesday, January 12 threatening to file a motion to compel two days later on January 14
21 unless EQCA identified its core group the next day and began an immediate rolling production.
22 Prop. Ex. 5. EQCA responded reiterating its earlier objections and offering to discuss the issue
23 further. Prop. Ex. 6. On Friday morning Proponents emailed EQCA now demanding that
24 production begin immediately or that EQCA stipulate to filing a response three days later on a
25 federal holiday. Kramer Decl. Ex. D. Again, EQCA responded by offering to discuss this matter
26 further and reminding Proponents that Monday was a holiday, but Proponents refused and instead
27 1
Third Party ACLU filed its Opposition to Proponents’ Motion to Shorten Time on January 19
and proposed deadline of Monday, January 25 for its Opposition the Proponents’ Motion to
28 Compel. Dkt. #488.
1 filed their motions less than 30 minutes later. Kramer Decl. ¶ 6.

2 ARGUMENT
3 I. ANY PREJUDICE TO PROPONENTS IS MINIMAL AND CAUSED BY
PROPONENTS’ OWN STRATEGIC DECISIONS
4
Proponents have not demonstrated the good cause required by Federal Rule 6, let alone
5
explained how they will suffer substantial harm or prejudice as required by Local Rule 6-3.
6
EQCA has already produced all responsive, non-privileged public documents. Kramer Decl. ¶ 4.
7
As described by Proponents, the “complete record” includes the “mix of information before and
8
available to the voters.” Motion at 2. Accordingly, the only documents that could potentially
9
cause Proponents’ alleged prejudice relate to internal communications that could not possibly
10
have been “before or available” to the voters. As such, even as described by Proponents, all of
11
the relevant documents have been produced and no harm or prejudice can possibly result from
12
giving EQCA until Monday, January 25 to oppose the motion to compel.
13
ATTORNEYS AT LAW
SAN FRANCISCO
Further, any harm or prejudice is the direct result of Proponents’ decision to delay
14
enforcement of third party subpoenas, while they resolved their own discovery obligations with
15
the Court. Proponents have been in possession of EQCA’s objections since September and have
16
at no time directly addressed EQCA’s arguments, let alone sought to enforce their subpoenas.
17
Proponents’ claim that they have kept the “No on 8 groups continually apprised of both this
18
Court’s and the Ninth Circuit’s rulings regarding the permissible scope of discovery in this case”
19
is simply not the case. In reality, until last week, EQCA had not heard from Proponents in nearly
20
two months. Proponents attempt to explain the delay arguing that the Court’s January 8 Order
21
applies to third party EQCA and excuses their decision to not enforce the subpoena. Motion at 2.
22
However, as previously explained to Proponents, orders addressing the discovery obligations of
23
party Proponents do not apply to third party opponents of Proposition 8 like EQCA. EQCA made
24
this exact argument in October, yet Proponents chose to ignore it until the middle of trial.
25
Accordingly, the urgency Proponents’ base their Motion on is entirely of their own creation and a
26
third party such as EQCA should not be subject to Proponents’ unreasonable scheduling
27
demands.
28
1 II. PROPONENTS FAILED TO MEANINGFULLY MEET AND CONFER IN

VIOLATION OF THE LOCAL RULES
2
3 Pursuant to the local rules, Proponents must attempt to meet and confer before filing either
4 the Motion or the motion to compel. L.R. 6-3, 37-1(a). Despite this, Proponents have made no
5 attempt to meaningfully meet and confer on either motion. In nearly every communication sent
6 to Proponents, EQCA has agreed to discuss their objections and Proponents’ demands further.
7 Yet not once have Proponents sought to schedule a call or even directly respond to EQCA’s
8 objections. Kramer Decl. ¶ 8. For this Motion, in particular, Proponents’ efforts to obtain a
9 stipulation are inadequate. Proponents contacted EQCA less than eight hours before filing the
10 Motion and demanded that EQCA either begin an immediate production or agree to a schedule
11 requiring EQCA to file an opposition three days later on a federal holiday. Kramer Decl. Ex. D.
12 Such attempts to reach an agreement on either this Motion or the motion to compel are
13 insufficient under the local rules, which specify that “[t]he mere sending of a written, electronic,
ATTORNEYS AT LAW
SAN FRANCISCO
14 or voice-mail communication, however, does not satisfy a requirement to ‘meet and confer’ or to
15 ‘confer.’ Rather, this requirement can be satisfied only through direct dialogue and discussion –
16 either in a face to face meeting or in a telephone conversation.” L.R. 1-5(n); see also Baker v.
17 County of Sonoma, No. 08-03433, 2010 WL 99088, at *1 (N.D. Cal. Jan. 6, 2010) (finding a letter
18 sent 24 hours before the deadline as insufficient); Williby v. City of Oakland, No. C-06-07385,
19 2007 WL 2900433, at *2 (N.D. Cal. Oct. 3, 2007) (“communication in writing is specifically
20 insufficient to satisfy the meet and confer requirement”). No such face to face meeting or
21 telephone conversation ever occurred, or was even attempted by counsel for Proponents. In light
22 of this gross failure to comply with the rules, requiring third party EQCA to submit to such a
23 limited schedule is particularly inappropriate.
24 CONCLUSION
25 Any harm or prejudice caused by allowing EQCA adequate time to respond to the motion
26 to compel is minimal and ultimately caused by the strategic decisions of Proponents. However,
27 given the fact that Proponents are now in the midst of trial, EQCA is willing to agree to submit its
28 opposition in less than the time permitted under the Local Rules, and it proposes that such
1 opposition be filed by Monday, January 25, 2010—nearly two weeks earlier than when it would
2 otherwise be due.
3 Dated: January 19, 2010 FENWICK & WEST LLP
4
5 By: /s/ Leslie A. Kramer

Leslie A. Kramer
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Attorneys for Third Party, Equality California
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ATTORNEYS AT LAW
SAN FRANCISCO
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Case3:09-cv-02292-JW Document491-1 Filed01/19/10 Page1 of 3
1 LYNN H. PASAHOW (CSB NO. 054283)

lpasahow@fenwick.com
2 CAROLYN CHANG (CSB NO. 217933)
cchang@fenwick.com
3 LESLIE KRAMER (CSB NO. 253313)
lkramer@fenwick.com
4 LAUREN WHITTEMORE (CSB NO. 255432)
lwhittemore@fenwick.com
5 FENWICK & WEST LLP
555 California Street, Suite 1200
6 San Francisco, CA 94104
Telephone: (415) 875-2300
7 Facsimile: (415) 281-1350
8 Attorneys for Third-Party, Equality California
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12 KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW

PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

13
ATTORNEYS AT LAW
SAN FRANCISCO
Plaintiffs, DECLARATION OF LESLIE

14 v. KRAMER IN SUPPORT OF THIRD-
PARTY EQUALITY CALIFORNIA’S
15 ARNOLD SCHWARZENEGGER, in his official OPPOSITION TO DEFENDANT-
capacity as Governor of California; EDMUND G. INTERVENORS’ MOTION TO
16 BROWN, JR., in his official capacity as Attorney SHORTEN TIME FOR RESPONSE
General of California; MARK B. HORTON, in his TO AND HEARING OF MOTION
17 official capacity as Director of the California TO COMPEL
Department of Public Health and State Registrar of
18 Vital Statistics; LINETTE SCOTT, in her official Trial: January 11, 2010
capacity as Deputy Director of Health Information & Judge: Chief Judge Vaughn R. Walker
19 Strategic Planning for the California Department of Location: Courtroom 6, 17th Floor
Public Health; PATRICK O’CONNELL, in his
20 official capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
21 capacity as Registrar-Recorder/County Clerk for the
County of Los Angeles,
22
Defendants,
23 and
24 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
25 MARTIN F. GUTIERREZ, HAK-SHING
WILLIAM TAM, and MARK A. JANSSON; and
26 PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL,
27
Defendant-Intervenors.
28
DECLARATION OF LESLIE KRAMER IN SUPPORT
OF EQUALITY CALIFORNIA’S OPPOSITION TO 1 CASE NO. 09-CV-2292 VRW
MOTION TO SHORTEN TIME
1 I, Leslie Kramer, declare as follows:

2 1. I am an attorney admitted to practice before this Court. I am an associate at the
3 law firm of Fenwick & West LLP, counsel of record for Third-Party Equality California
4 (“EQCA”), in this action. I have personal knowledge of the matters set forth herein and, if called
5 upon, could and would testify competently thereto.
6 2. On October 29, 2009, Carolyn Chang, counsel for EQCA, responded to James
7 Campbell’s October 9 and 23 letters. Ms. Chang reiterated EQCA’s formal objections served on
8 September 17, 2009 and explained that any change in the parties’ discovery obligations by the
9 Court would have no impact on EQCA’s obligations to respond to the subpoena. A true and
10 correct copy of that letter is attached as Exhibit A.
11 3. On November 11, 2009, Ms. Chang sent another letter to Mr. Campbell in
12 response to his October 29, 2009 letter. The letter further detailed EQCA’s argument that the
13 documents sought were not relevant and that the requests were inappropriate given EQCA’s
ATTORNEYS AT LAW
SAN FRANCISCO
14 status as a third party. A true and correct copy of that letter is attached as Exhibit B.
15 4. On December 8, 2009, EQCA produced all responsive, non-privileged public
16 documents in response to Proponents’ subpoenas that were located after a good faith search. A
17 true and correct copy of the cover letter from that production is attached as Exhibit C.
18 5. On January 15, 2010, I received an email from Jesse Panuccio. Mr. Panuccio
19 demanded that EQCA either begin an immediate production or stipulate to a briefing schedule
20 requiring EQCA to file an opposition on Monday, January 18. A true and correct copy of that
21 email is attached as Exhibit D.
22 6. Also on January 15, 2010, I responded to Mr. Panuccio pointing out that his
23 proposed schedule was unreasonable and that January 18 was a federal holiday. I also offered to
24 speak with him about this matter on the next business day. A true and correct copy of my January
25 15, 2010 email is attached as Exhibit E. I have not received a response from Mr. Panuccio, but he
26 sent me an email attaching the Proponents’ Motion to Shorten Time and Motion to Compel
27 shortly thereafter.
28 7. Even after the Proponents filed their motions, EQCA contacted Proponents about
1 stipulating to a revised briefing schedule. Unfortunately, Proponents and EQCA could not come
2 to an agreement. A true and correct copy of that correspondence is attached as Exhibit F.
3 8. Upon information and belief, counsel for EQCA has never spoken with
4 Proponents’ counsel regarding EQCA’s objections or the scope of the subpoenas.
5 9. Responding by Proponents’ immediate deadline of Monday, January 18 imposes
6 an undue burden on EQCA, especially in light of Proponents failure to meaningfully confer on
7 this schedule. Because this matter is in the middle of trial, if the Court concludes that
8 Proponents’ Motion to Compel should be heard, EQCA proposes that it file its opposition by
9 Monday, January 25.
10 I declare under penalty of perjury under the laws of the United States that the foregoing is
11 true and correct.
12 Executed this 19th day of January, 2010, in San Francisco, California.
13
ATTORNEYS AT LAW
SAN FRANCISCO
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15 ________/s/ Leslie A. Kramer_____________

Leslie A. Kramer
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Case3:09-cv-02292-VRW Document491-2 Filed01/19/10 Page1 of 3
Leslie Kramer
From: Jesse Panuccio [jpanuccio@cooperkirk.com]
Sent: Friday, January 15, 2010 9:05 AM
To: Leslie Kramer
Subject: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)
Ms. Leslie Kramer, Esq.

Fenwick & West, LLP
555 California St., 12th Floor
San Francisco, CA 94104
January 15, 2010
BY EMAIL
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
Dear Ms. Kramer:
I write in follow up to Jim Campbell’s letter of January 12, 2010, and in response to your letter of January 13. The Court in
Perry has stated its intention to build a “complete record” in this case, Doc # 76 at 5, and has held that part of this
complete record is “the mix of information before and available to the voters.” Doc # 214 at 14. The Court has further
defined this “mix of information” as consisting of “any document “that contain[s], refer[s] or relate[s] to arguments for or
against Proposition 8.” Doc # 372 at 5. The subpoena that has been served on Equality California—issued out of the
Northern District of California, the Court that issued the above orders—seeks just such documents. See, e.g., Requests
No. 1, 6, and 8.
Your correspondence to date indicates that Equality California is withholding such documents. Because trial is already
underway and the need to build a “complete record” of “the mix of information before and available to the voters” is
pressing, Defendant-Intervenors have no choice at this juncture but to file a motion to compel compliance with the
subpoena. Concurrent with that motion, Defendant-Intervenors plan to file an administrative motion to shorten time for
response to, and hearing on, the motion to compel. Defendant-Intervenors will propose that any response be filed by 5
p.m. on January 18, 2010, and that the Court hear the motion as soon as possible given the dictates of the trial schedule.
With respect to timeliness of this motion, Local Rule 26-2 states that a “[d]iscovery cut off” applies “[u]nless otherwise
ordered” and that “[d]iscovery requests that call for responses … after the applicable discovery cut-off are not enforceable,
except by order of the Court for good cause shown.” N.D. Cal. Civ. L.R. 26-2. Here, although the Court originally set a
discovery cut-off of November 30, 2009, see Doc # 160 at 2, the Court just recently ruled on the scope of the First
Amendment privilege and relevant discovery. See Doc # 372. Moreover, the Court has already permitted motions to
compel beyond the date established by L.R. 26-2, and it was just such a motion that resulted in the January 8 order. See
Doc # 325 at 8 (seeking order compelling discovery and dated Dec. 28, 2009); Hr’g of Jan. 6, 2010, Tr. at 7 (noting that
Doc # 325 seeks a “compelling” order); id. at 69 (noting that Plaintiffs “filed … what amounts to the motion to compel … on
the 28th”).
Pursuant to N.D. Cal. Civ. L.R. 6-3(a)(2), a party moving to shorten time must seek a stipulation to the time change. If you
stipulate to the time change, please let me know. Additionally, if Equality California has reconsidered its position and will
begin an immediate rolling production, please let me know. If you believe further meet-and-confer will resolve this
dispute, I am available today at 202-220-9642--but, again, I note that Defendant-Intervenors must move forward promptly
on your prior representations that no additional documents will be produced.
Sincerely,
Jesse Panuccio
----------------------------
1
Jesse Panuccio
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com
2
Leslie Kramer
From: Leslie Kramer
Sent: Friday, January 15, 2010 4:18 PM
To: 'Jesse Panuccio'
Cc: Lauren Whittemore
Subject: RE: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)
Mr. Panuccio,
I write in response to your January 15 email.

To begin with, January 18 is a federal holiday. We therefore cannot stipulate to any schedule that requires Equality
California to respond in such a limited time frame, let alone on a federal holiday.

Additionally, you have been in receipt of our objections since September 17, 2009. At that time, we objected for a
number of reasons, including on the ground that Equality California’s non‐public materials relating to Proposition 8 were
not relevant to the claims and defenses in your case. We agreed to produce, and have since produced, responsive non‐
privileged public documents in response to requests numbers 1, 6 and 8. As you know, our objections have been
reiterated by us numerous times, including in Equality California's objections served on November 23 to your second
largely duplicative subpoena. As such, you have had months, including a substantial amount of time before the close of
discovery, to address these issues through the meet and confer process and a motion to compel to the extent you
deemed one necessary. Instead, you decided to do nothing in response to our objections and now all of a sudden
expect us to begin an immediate rolling production or else commit to a three day briefing schedule over a holiday
weekend. Furthermore, Local Rule 26‐2 requires that you demonstrate good cause in order to file a motion to compel
after the close of discovery—which your email fails to do. Please explain the good cause for why you waited to raise this
issue until mid‐trial and after the close of discovery, when you obviously could have moved for an order regarding the
“scope” of discovery in the time permitted to the extent you disagreed with our objections. We reiterate that the
court's January 8 order, which addresses the scope of proponent's First Amendment privilege, does not address our
objections, explain your delay or give you the right to unduly burden a non‐party.

As always, I am happy to discuss this matter further and, to that end, am generally available Tuesday afternoon for a call.

LESLIE KRAMER
Fenwick & West LLP
Associate, Litigation Group
(415) 875-2396
(415) 281-1350
lkramer@fenwick.com

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]
Sent: Friday, January 15, 2010 9:05 AM
To: Leslie Kramer
Subject: Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)
Ms. Leslie Kramer, Esq.

Fenwick & West, LLP
555 California St., 12th Floor
San Francisco, CA 94104
1
January 15, 2010
BY EMAIL
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
Dear Ms. Kramer:
I write in follow up to Jim Campbell’s letter of January 12, 2010, and in response to your letter of January 13. The Court in
Perry has stated its intention to build a “complete record” in this case, Doc # 76 at 5, and has held that part of this
complete record is “the mix of information before and available to the voters.” Doc # 214 at 14. The Court has further
defined this “mix of information” as consisting of “any document “that contain[s], refer[s] or relate[s] to arguments for or
against Proposition 8.” Doc # 372 at 5. The subpoena that has been served on Equality California—issued out of the
Northern District of California, the Court that issued the above orders—seeks just such documents. See, e.g., Requests
No. 1, 6, and 8.
Your correspondence to date indicates that Equality California is withholding such documents. Because trial is already
underway and the need to build a “complete record” of “the mix of information before and available to the voters” is
pressing, Defendant-Intervenors have no choice at this juncture but to file a motion to compel compliance with the
subpoena. Concurrent with that motion, Defendant-Intervenors plan to file an administrative motion to shorten time for
response to, and hearing on, the motion to compel. Defendant-Intervenors will propose that any response be filed by 5
p.m. on January 18, 2010, and that the Court hear the motion as soon as possible given the dictates of the trial schedule.
With respect to timeliness of this motion, Local Rule 26-2 states that a “[d]iscovery cut off” applies “[u]nless otherwise
ordered” and that “[d]iscovery requests that call for responses … after the applicable discovery cut-off are not enforceable,
except by order of the Court for good cause shown.” N.D. Cal. Civ. L.R. 26-2. Here, although the Court originally set a
discovery cut-off of November 30, 2009, see Doc # 160 at 2, the Court just recently ruled on the scope of the First
Amendment privilege and relevant discovery. See Doc # 372. Moreover, the Court has already permitted motions to
compel beyond the date established by L.R. 26-2, and it was just such a motion that resulted in the January 8 order. See
Doc # 325 at 8 (seeking order compelling discovery and dated Dec. 28, 2009); Hr’g of Jan. 6, 2010, Tr. at 7 (noting that
Doc # 325 seeks a “compelling” order); id. at 69 (noting that Plaintiffs “filed … what amounts to the motion to compel … on
the 28th”).
Pursuant to N.D. Cal. Civ. L.R. 6-3(a)(2), a party moving to shorten time must seek a stipulation to the time change. If you
stipulate to the time change, please let me know. Additionally, if Equality California has reconsidered its position and will
begin an immediate rolling production, please let me know. If you believe further meet-and-confer will resolve this
dispute, I am available today at 202-220-9642--but, again, I note that Defendant-Intervenors must move forward promptly
on your prior representations that no additional documents will be produced.
Sincerely,
Jesse Panuccio
----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com
2
Leslie Kramer
From: Jesse Panuccio [jpanuccio@cooperkirk.com]
Sent: Tuesday, January 19, 2010 12:37 PM
To: Leslie Kramer
Cc: Lauren Whittemore; Nicole Moss
Subject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No.
09-2292 (N.D. Cal.)
Ms. Kramer,
We cannot stipulate to January 25.
Thank you,
Jesse
From: Leslie Kramer [mailto:lkramer@fenwick.com]

Sent: Tuesday, January 19, 2010 3:14 PM
To: Jesse Panuccio
Subject: RE: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)
After consulting with the other third parties and learning that the ACLU has proposed Monday, January 25 as a deadline
for responding to the motion to compel, we feel it's most efficient for all third parties to respond to the motion to
compel on the same day. Accordingly, we will be asking the court for the same deadline. Based on your previous
representations, we assume that date is not acceptable to you. If, however, you will agree to that schedule, please let
us know immediately. Otherwise, we will go forward with our Opposition to the Motion to Shorten Time.

Sent: Monday, January 18, 2010 2:37 PM
To: Leslie Kramer
Ms. Kramer,
Thank you for your email. We would be willing to stipulate that the opposition to the motion be filed by the ECF deadline
on Wednesday (essentially midnight on Wednesday).
Regards,
Jesse
From: Leslie Kramer [mailto:lkramer@fenwick.com]

Sent: Monday, January 18, 2010 2:00 PM
To: Jesse Panuccio
Cc: Lauren Whittemore
We intend to oppose your Motion to Shorten Time on Tuesday pursuant to the local rules. Will you stipulate to our
opposition to the motion to compel being filed Thursday, January 21?
1

Sent: Friday, January 15, 2010 4:43 PM
To: sbomse@orrick.com; kkrogseng@rjp.com; Leslie Kramer
Subject: Service of Motion to compel and motion to shorten time, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.)
Dear Counsel,
Please see the attached motions, which were just filed in, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.). Exhibits to
the motion to compel will be attached in a follow-on email.
Regards,
Jesse Panuccio
----------------------------
Jesse Panuccio
Cooper & Kirk, PLLC
Phone: (202) 220-9600
Fax: (202) 220-9601
www.cooperkirk.com
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3:09-cv-02292 #491

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Case3:09-cv-02292-VRW Document491 Filed01/19/10 Page1 of 6

1 LYNN H. PASAHOW (CSB NO. 054283)

12 KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW

PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs, EQUALITY CALIFORNIA’S

1 filed their motions less than 30 minutes later. Kramer Decl. ¶ 6.

1 II. PROPONENTS FAILED TO MEANINGFULLY MEET AND CONFER IN

19 2007 WL 2900433, at *2 (N.D. Cal. Oct. 3, 2007) (“communication in writing is specifically

23 limited schedule is particularly inappropriate.

5 By: /s/ Leslie A. Kramer

1 LYNN H. PASAHOW (CSB NO. 054283)

12 KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW

PAUL T. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs, DECLARATION OF LESLIE

1 I, Leslie Kramer, declare as follows:

15 ________/s/ Leslie A. Kramer_____________

Ms. Leslie Kramer, Esq.

January 15, 2010

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Ms. Kramer:

Ms. Leslie Kramer, Esq.

Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)

Dear Ms. Kramer:

We cannot stipulate to January 25.

From: Leslie Kramer [mailto:lkramer@fenwick.com]

From: Leslie Kramer [mailto:lkramer@fenwick.com]

From: Jesse Panuccio [mailto:jpanuccio@cooperkirk.com]

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15 /s/ Leslie A. Kramer_____