3:09-cv-02292 #175
TRANSCRIPT
-
8/7/2019 3:09-cv-02292 #175
1/11
1
Cooper & KirkLawyers
A Professional Limited Liability Company
Charles J. Cooper105 Kaula Lane
1523 New Hampshire Avenue, N.W. Bonita Springs, FL 34134Washington, D.C. 20036 (239) 948-5947(202) 220-9660 Fax (239) 948-5946
Fax (202) 220-9601 [email protected]
The Honorable Vaughn R. Walker
Chief Judge
United States District Court for the
Northern District of California450 Golden Gate Ave.
San Francisco, CA 94102
September 10, 2009
Re: Perry v. Schwarzenegger, No. 09-2292 VRW
Dear Chief Judge Walker,
Defendant-Intervenors respectfully request leave to file a motion for a protective order to resolve
a discovery dispute that has arisen between Plaintiffs and Defendant-Intervenors. Plaintiffs originallyasserted that they plan to seek documents relating to Prop. 8s genesis, drafting, strategy, objectives,
advertising, campaign literature, and Intervenors communications with each other, supporters, and
donors. Doc # 157 at 12. At the August 19, 2009 hearing, Mr. Cooper explained that some of the
things that [Plaintiffs] would like to inquire into going to voter motivation are issues that weearnestly believe are not fit and appropriate for judicial inquiry, and that in fact, would raise the gravest
possible First Amendment issues. Tr. 59. Counsel requested an opportunity to fully brief that
proposition before we get off in the direction of taking depositions of our clients and subpoenaing theiremails going to their internal campaign strategies . . . . Id. In response, Plaintiffs counsel stated: I
frankly do not believe that we will have a problem, at least at the initial stages of discovery, in limiting
discovery in a way that does not impermissibly infringe on any First-Amendment issues. Id. at 63.Counsel represented that statements that were made publicly are subject to discovery but that
Plaintiffs would not be inquiring into subjective, unexpressed motivations. Id. at 63-64.
Two days later, Plaintiffs propounded document requests (enclosed herewith) that seek materials
that are both legally irrelevant and protected from disclosure by the First Amendment. For example, inRequest No. 8 Plaintiffs seek [a]ll versions of any documents that constitute communications relating
to Prop. 8, between you and any third party. Plaintiffs define relating to mean indirect and directreferences to the subject matter set forth in the document request. Plaintiffs thus seekall
correspondence Defendant-Intervenors may have had with any third party (even a single individual,
whether or not a California voter) bearing any relationship to Prop. 8 whatsoeverincludingcommunications with individual donors or voters, communications with political strategists, and
communications with friends. Moreover, Plaintiffs seek these communications regardless of whether
Case3:09-cv-02292-VRW Document175 Filed09/10/09 Page1 of 2
-
8/7/2019 3:09-cv-02292 #175
2/11
2
they relate to the public understanding of or motivation for enacting Prop. 8. Defendant-Intervenors and
Plaintiffs have exchanged letters (attached hereto) and engaged in telephone conferences in an effort toresolve our conflicting views of the permissible scope of discovery in this case. Plaintiffs counsel has
confirmed that Plaintiffs seek communications between Defendant-Intervenors and third parties that in
any way relate to Prop. 8. Plaintiffs counsel also has confirmed that Plaintiffs seek all versions ofpublicly distributed documents, including draft versions never meant for public distribution.
It thus appears that Plaintiffs do not intend to limit their discovery requests in a way that would
be consistent with Defendant-Intervenors First Amendment privilege and/or that would relieveDefendant-Intervenors of the burden of reviewing and producing tens of thousands of documents that
are legally irrelevant. As the Ninth Circuit cogently explained in SASSO v. Union City, while it might
be proper to assign a discriminatory purpose to the publics enactment of a referendum using whollyobjective standards such as ultimate effect and historical context, the resort to subjective views of the
electorate is an inappropriate avenue of judicial inquiry as it would require a probing of the private
attitudes of the voters, [which] would entail an intolerable invasion of the privacy that must protect anexercise of the franchise. 424 F.2d 291, 295 (9th Cir. 1970). See also Jones v. Bates, 127 F.3d 839,
860 (9th Cir. 1997). The Supreme Court, in Plaintiffs principal case,Romer v. Evans, 517 U.S. 620,
634 (1996), hewed closely to this line, examining only information that was publicly known (such as the
referendums ultimate effect). Thus, Plaintiffs seek discovery that has no possible bearing on theoutcome of this case. Moreover, communications regarding political strategy, associational goals, and
speech related to petitioning of the government are protected by the First Amendment. See NAACP v.
Alabama, 357 U.S. 449 (1958);Beinin v. The Center for the Study of Popular Culture, 2007 U.S. Dist.LEXIS 47546, at *10 (N.D. Cal. 2007) (Ware, J.). See alsoIn re Motor Fuel Temperature SalesPractices Litig., 2009 U.S. Dist. LEXIS 66005 (D. Kan. 2009).
But the Court need not take our word for it. Plaintiffs counsel has very recently explained to the
Supreme Court of the United States just what is at stake: Even if the government did have aninformational or enforcement interest in applying disclaimer, disclosure, and reporting requirements
to [an association engaging in core First Amendment activities], those interests would be outweighed by
the extraordinary burdens that those requirements impose on First Amendment freedomsincluding therisk of harassment and retaliation faced by [the associations] financial supporters, and the substantial
compliance costs borne by [the association].The widespread economic reprisals against financial
supporters of Californias Proposition 8 dramatically illustrate the unsettling consequences of
disseminating contributors names and addresses to the public through searchable websites. . . .Reply
Br. for Appellant at 28-29, Citizens United v. FEC, No. 08-205 (U.S. Mar. 17, 2009). Here, Plaintiffs
seek much more invasive and sweeping disclosure than the information sought in Citizens.
Defendant-Intervenors respectfully request leave to file a motion for a protective order.
Sincerely,
/s/ Charles J. Cooper
Charles J. Cooper
Counsel for Defendant-Intervenors
EnclosuresCc: Counsel of Record
Case3:09-cv-02292-VRW Document175 Filed09/10/09 Page2 of 2
-
8/7/2019 3:09-cv-02292 #175
3/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page1 of 6
-
8/7/2019 3:09-cv-02292 #175
4/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page2 of 6
-
8/7/2019 3:09-cv-02292 #175
5/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page3 of 6
-
8/7/2019 3:09-cv-02292 #175
6/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page4 of 6
-
8/7/2019 3:09-cv-02292 #175
7/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page5 of 6
-
8/7/2019 3:09-cv-02292 #175
8/11
Case3:09-cv-02292-JW Document175-1 Filed09/10/09 Page6 of 6
-
8/7/2019 3:09-cv-02292 #175
9/11
Nicole J. [email protected]
Cooper & KirkLawyers
A Professional Limited Liability Company1523 New Hampshire Ave., N.W.
Washington, D.C. 20036 (202) 220-9600Fax (202) 220-9601
August 27, 2009
By Electronic Mail
Matthew D. McGillGibson, Dunn & Crutcher LLP
1050 Connecticut Ave., NW
Washington, D.C. 20036-5306
Re: Perry v. Schwarzenegger, et al.,
U.S.D.C., N.D. Cal., C-09-2292 VRW
Dear Matt,
We are in receipt of Plaintiffs First Set of Requests for Production and appreciate theefforts you have made to confine the scope of those Requests to the representations made at the
August 19, 2009 hearing. Consistent with those representations, I write to clarify that
Defendant-Intervenors understand Plaintiffs Requests as not calling for the disclosure ofDefendant-Intervenors internal communications and documents, including communications
between and among Defendant-Intervenors, as well as communications between Defendant-
Intervenors and their agents, contractors, attorneys, donors, or others in a similarly private and
confidential relationship with Defendant-Intervenors. We also understand your Requests, to theextent they call for communications or documents prepared for public distribution, to call for
documents that actually were disclosed to the public. We, in turn, intend to make clear that our
discovery requests to individuals and organizations opposed to Proposition 8 will be similarlylimited.
Sincerely,
Nicole J. Moss
Cc: Charles J. Cooper, Esq.
David Thompson, Esq.
Case3:09-cv-02292-VRW Document175-2 Filed09/10/09 Page1 of 1
-
8/7/2019 3:09-cv-02292 #175
10/11
Case3:09-cv-02292-VRW Document175-3 Filed09/10/09 Page1 of 2
-
8/7/2019 3:09-cv-02292 #175
11/11
Case3:09-cv-02292-VRW Document175-3 Filed09/10/09 Page2 of 2