perry v. scharzenneger exhibits to prop. 8 proponents' response to april 13, 2010, order to show...

8/9/2019 Perry v. Scharzenneger Exhibits to Prop. 8 Proponents' Response to April 13, 2010, Order to Show Cause Why Rec

1/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF JESSE PANUCCIO

CASE NO. 09-CV-2292 VRW

COOPER AND KIRK, PLLCCharles J. Cooper (DC Bar No. 248070)*[email protected] H. Thompson (DC Bar No. 450503)*[email protected] C. Nielson, Jr. (DC Bar No. 473018)*[email protected]

Nicole J. Moss (DC Bar No. 472424)*[email protected] A. Patterson (Ohio Bar No. 0080840)*[email protected] New Hampshire Ave. N.W., Washington, D.C. 20036Telephone: (202) 220-9600, Facsimile: (202) 220-9601

LAW OFFICES OF ANDREW P. PUGNOAndrew P. Pugno (CA Bar No. 206587)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 608-3065, Facsimile: (916) 608-3066

ALLIANCE DEFENSE FUNDBrian W. Raum(NY Bar No.2856102)*[email protected] A. Campbell (OH Bar No. 0081501)*[email protected] North 90th Street, Scottsdale, Arizona 85260Telephone: (480) 444-0020, Facsimile: (480) 444-0028

ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,GAIL J.KNIGHT,MARTIN F.GUTIERREZ,MARK A.JANSSON, andPROTECTMARRIAGE.COM YES ON 8,APROJECT OF CALIFORNIA RENEWAL

*Admittedpro hac vice

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.ZARRILLO,

Plaintiffs,

v.

ARNOLD SCHWARZENEGGER, in his officialcapacity 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


DECLARATION OF JESSEPANUCCIO IN SUPPORT OFDEFENDANT-INTERVENORS

RESPONSE TO APRIL 13, 2010ORDER TO SHOW CAUSE ANDMOTION FOR CONTEMPT

Judge: Chief Judge Vaughn R. Walker

Case3:09-cv-02292-VRW Document633 Filed04/16/10 Page1 of 4


2/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF JESSE PANUCCIO


SCOTT, in her official capacity as DeputyDirector of Health Information & Strategic

Planning for the California Department of Public

Health; PATRICK OCONNELL, in his officialcapacity as Clerk-Recorder for the County of

Alameda; and DEAN C. LOGAN, in his official

capacity as Registrar-Recorder/County Clerk forthe County of Los Angeles,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.JANSSON; and PROTECTMARRIAGE.COM

YES ON 8, A PROJECT OF CALIFORNIARENEWAL,

Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)[email protected]

101 Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)*[email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001Telephone: (202) 393-8690, Facsimile: (202) 347-3622

*Admittedpro hac vice



3/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1DECLARATION OF JESSE PANUCCIO


I, Jesse Panuccio, declare as follows:

1. I am an attorney licensed to practice law in the State of Florida and the District ofColumbia and am admittedpro hac vice in this case. I am an associate at the law firm of Cooper &

Kirk, PLLC, counsel of record for Defendant-Intervenors Dennis Hollingsworth, Gail Knight,

Martin Gutierrez, Mark Jansson, and ProtectMarriage.com. I make this declaration in support of

Defendant-Intervenors Response to the Courts April 13 Order to Show Cause. I have personal

knowledge of the facts stated herein and could testify and would testify competently thereto if

called upon to do so.

2. Attached hereto as Exhibit A is a true and correct copy of a letter counsel forCalifornians Against Eliminating Basic Rights sent to me on March 31, 2010.

3. Attached hereto as Exhibit B is a true and correct copy of a letter I sent on March 23,2010, to counsel for No on Proposition 8, Campaign for Marriage Equality, A Project of the

American Civil Liberties Union (ACLU) and Equality California (EQCA). Attached hereto as

Exhibit C is a true and correct copy of a letter counsel for ACLU sent to me on March 31, 2010.

Attached hereto as Exhibit D is a true and correct copy of a letter counsel for EQCA sent to me on

April 16, 2010.

4. Attached hereto as Exhibit E is a true and correct copy of a letter I sent on April 13,2010, to counsel for the ACLU and EQCA.

5. Attached hereto as Exhibit F is a true and correct copy of a letter counsel for ACLU sentto me on April 15, 2010.

6. Attached hereto as Exhibit G is a true and correct copy of a letter I sent on April 15,2010, to counsel for the ACLU and EQCA.

7. Attached hereto as Exhibit H is a true and correct copy of a letter counsel for Plaintiffssent to counsel for the ACLU sent to me on April 15, 2010.



4/33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2DECLARATION OF JESSE PANUCCIO


8. Attached hereto as Exhibit I is a true and correct copy of a letter counsel for ACLU sentto me on April 16, 2010.

9. Attached hereto as Exhibit J is a true and correct copy of a letter counsel for ACLU sentto counsel for Plaintiffs on April 16, 2010.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 16th day of

April, 2010.

By: /s/ Jesse Panuccio

Jesse Panuccio



5/33

Exhibit A

Case3:09-cv-02292-VRW Document633-1 Filed04/16/10 Page1 of 3


6/33



7/33



8/33

Exhibit B



9/33

Jesse [email protected]

Cooper & KirkLawyers

A Professional Limited Liability Company1523 New Hampshire Avenue, N.W.

Washington, D.C. 20036 (202) 220-9600Fax (202) 220-9601

March 23, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. BomseOrrick, Herrington & Sutcliffe LLP450 Howard StreetSan Francisco, CA 94105-2669

Ms. Lauren WhittemoreFenwick & West LLP555 California Street, Suite 1200San Franciso, CA 94104

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

Dear Mr. Bomse and Ms. Whittemore:

I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

and your clients (hereinafter ALCU and EQCA) in the above-referenced matter. At thehearing on March 16, 2010, you twice represented that the ACLU and EQCA had produced allpublic documents responsive to the document requests in the subpoenas served by Defendant-Intervenors. See Hrg of March 16, 2010, Tr. (rough) at 20:2-3 (And of course all of the publicdocuments were produced voluntarily.); id. at 64:10-12 (I think [Plaintiffs counsel] also hasmade the argument that I was about to make in this reply which is all public documents wereproduced.). See alsoid. at 55:3-5 (statement of Plaintiffs counsel) (There were many radioads, many television ads, many print materials, many documents that were produced by the thirdparties before trial.). A similar representation was also made in your clients joint filing ofMarch 11, 2010. See Doc # 614 at 6 (But if it was public, then EQCA and the ACLU havealready produced it voluntarily.).

To date, the has ACLU produced a total of only 149 pages (81 documents) and EQCAhas produced a total of only 286 pages (also consisting of fewer total documents). Upon re-review of these minimal productions, we are concerned that the ACLU and EQCA are inpossession of responsive, public documents that have not, in fact, been produced by theseorganizations. For example, it appears that neither the ACLU nor EQCA has, to the best of ourknowledge, produced a single audio-video file of radio, television, or Internet advertisements,despite the massive volume of radio, television, and Internet advertising conducted by the



10/33


Stephen V. Bomse, Esq.Lauren Whittemore, Esq.March 23, 2010Page 2 of 2

ACLU, EQCA, and other No-on-8 groups. Indeed, the following responsive videos appear onthe ACLUs website, yet were not produced by the ACLU: http://www.aclu.org/lgbt-rights/freedom-alert-we-could-lose-marriage; http://www.aclu.org/lgbt-rights/why-marriage-matters; http://www.aclu.org/lgbt-rights/freedom-alert-california-marriage-danger. Given therepresentations made in the ACLUs and EQCAs declarations in recent daysincluding thathundreds of individuals were deeply engaged in the formulation of $45 million worth of anumbrella coalitions messaging and strategy (and thus received final copies of public messagingsuch as blast emails, audio-video files, and the like)the organizations and their memberspresumably possess all such public documents that are responsive to the subpoenas. See, e.g.,Doc # 609 at 12 (averring that [m]any of the staff and board members of EQCA joinedcampaign-related email lists and as a result received numerous emails each week during the

campaign.); Doc # 610 at 7 (averring that the ACLU was regularly working withapproximately 10 groups to formulate[] messages tailored to [specific] communities).

Accordingly, Defendant-Intervenors must respectfully request that, pursuant to therepresentations made to the Court, the ACLU and EQCA immediately supplement their limitedproductions with all responsive, public documentsincluding, but not limited to, television,radio, and other audio-video files, flyers, Internet and blog posts, print ads, and blast emailsintheir possession. If the ACLU and EQCA refuse to make such a production, then we mustrespectfully request that you provide a basis for withholding such documents and correct therecord with the Court so that Defendant-Intervenors can promptly consider what further actionmay be necessary.

Thank you for your attention to this matter.

http://www.aclu.org/lgbt-rights/freedom-alert-we-could-lose-marriagehttp://www.aclu.org/lgbt-rights/freedom-alert-we-could-lose-marriagehttp://www.aclu.org/lgbt-rights/why-marriage-mattershttp://www.aclu.org/lgbt-rights/why-marriage-mattershttp://www.aclu.org/lgbt-rights/freedom-alert-california-marriage-dangerhttp://www.aclu.org/lgbt-rights/freedom-alert-california-marriage-dangerhttp://www.aclu.org/lgbt-rights/why-marriage-mattershttp://www.aclu.org/lgbt-rights/why-marriage-mattershttp://www.aclu.org/lgbt-rights/freedom-alert-we-could-lose-marriagehttp://www.aclu.org/lgbt-rights/freedom-alert-we-could-lose-marriage


11/33

Exhibit C



12/33



13/33



14/33

Exhibit D



15/33



16/33

Exhibit E



17/33





April 13, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse

Orrick, Herrington & Sutcliffe LLP450 Howard Street

San Francisco, CA 94105-2669

Ms. Lauren WhittenmoreFenwick & West LLP

555 California Street, Suite 1200

San Franciso, CA 94104



I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

(hereinafter Proponents) and your clients (hereinafter ALCU and EQCA) in the above-referenced matter. The Ninth Circuits April 12 order dismissing your clients appeal of the

District Courts March 5 and March 22 orders means that the stay of those orders is no longer in

place. Accordingly, the ACLU and EQCA are under an obligation to produce all documents in[their] possession that contain, refer or relate to arguments for or against Proposition 8, except

those communications solely among members of [the] core group[s] the District Court has

identified. Doc # 610 at 14. According to the District Courts March 22 order, the ACLU andEQCA were to meet that obligation in full by March 31, 2010, leaving Proponents twelve days

until April 12, 2010to review the documents and make [an] appropriate motion or

submission to supplement their trial record with documents obtained through this production.Doc # 623 at 24.

In an order issued today, the District Court noted that the Ninth Circuit stay was no

longer in effect and that Proponents had not yet made the April 12 submission contemplated in

the March 22 order. Proponents have not made that submission, of course, because during thependency of the stay the ACLU and EQCA did not produce any documents pursuant to the

District Courts orders. The District Court has now ordered Proponents to show cause in

writing not later than April 16, 2010 at 5 PM PDT why the evidentiary record should not now be

closed. See Doc # 631 at 2. Accordingly, Proponents must have possession of the documents



18/33


Stephen V. Bomse, Esq.

Lauren Whittemore, Esq.

April 13, 2010Page 2 of 2

the ACLU and EQCA are under an obligation to produce. We therefore respectfully request thatthe ACLU and EQCA immediately meet their production obligations under the March 5 andMarch 22 orders.

Thank you for your prompt attention to this matter.



19/33

Exhibit F



20/33



21/33



22/33

Exhibit G



23/33





April 15, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse, Esq.

Orrick, Herrington & Sutcliffe LLP450 Howard Street


Ms. Lauren Whittenmore, Esq.Fenwick & West LLP

555 California Street, Suite 1200

San Franciso, CA 94104



Thank you for your letter of today responding to Proponents April 13 letter requesting

that, in light of the Ninth Circuits dismissal of your clients appeal, the ACLU and EQCAimmediately meet their production obligations under the District Courts March 5 and March 22

orders. In your letter, you note that the ACLU and EQCA continue to believe that the orders

from which their prior appeal and writ petition were taken were erroneous. Ltr. from S. Bomseto J. Panuccio (April 15, 2010) at 1 (hereinafter Bomse Ltr.). You nonetheless advance the

following proposal: if the district court is willing to amend its March 22, 2010 Order, Doc #623,

in a manner consistent with the observations of the Ninth Circuit concerning the existence of aprivilege for communications regarding the formulation of campaign strategy and messages

among persons who are members of a core group associated in a political campaign, without

regard to whether such persons span[] more than one entity, [then] the ACLU and EQCA willpromptly comply with the order for production as thus amended and will not seek a further stay

of that order. Bomse Ltr. at 1.

We agree that while the Ninth Circuits most recent order did not address all of your

clients First Amendment objections to the March production orders, it does make clear that theCourt of Appeals, in its January 4 opinion, did not hold that the privilege cannot apply to a core

group of associated persons spanning more than one entity. Accordingly, we are amenable to

your clients proposal so long as the Ninth Circuits further guidance is applied consistently and

evenhandedly to both your clients and Proponents claims of privilegewhich would involve



24/33


Stephen V. Bomse, Esq.

Lauren Whittemore, Esq.

April 15, 2010Page 2 of 2

revisiting not only the March 5 and March 22 Orders, but also the Courts prior discovery andevidentiary rulings with respect to Proponents claims of privilege. We also note that to theextent the District Court requires further information from which a functional interpretation of

[an inter-organizational] core group could be derived, the opportunity to furnish such

information must be afforded to both your clients and Proponents. Order, Perry v.

Schwarzenegger, No. 10-15649 (9th Cir. Apr. 12, 2010) at 9 (quoting Doc # 623 at 10). Short of

such consistent and evenhanded application of the Ninth Circuits additional guidance,

Proponents would have no choice but to oppose any amendment to the March 5 and March 22Orders.

As I detailed in my April 13 letter, the March 22 Order contemplated that Proponents

would have twelve days from the date of your clients production to make [an] appropriatemotion or submission to supplement their trial record with documents obtained through this

production. Doc # 623 at 24. Because the ACLU and EQCA have not produced any

documents to date, Proponents have, of course, been unable to make such a submission.Nonetheless, the Court has ordered Proponents to show cause in writing not later than April 16,

2010 at 5 PM PDT why the evidentiary record should not now be closed. Doc # 631 at 2. Inour response to the April 13 Order, we will explain that the ACLU and EQCA have not yet

produced any documents and we will advise the Court of this chain of correspondence. For

purposes of drafting our response, would you please advise as to when, and in what manner, youplan to approach the Court with your proposal?

Lastly, I note that in our response to the April 13 Order, we will request that if the Courtrejects your proposal to amend the March 22 Order, then it hold your clients in contempt for

failure to comply with the March 5 and March 22 Orders.

Thank you for your continued and prompt attention to this matter.

Cc: Theodore J. Boutrous Jr.

James Esseks



25/33

Exhibit H



26/33

Client Matter No.: T 36330-00001

Theodore J. Boutrous Jr.

Direct: 213.229.7804Fax: 213.229.6804

[email protected]

April 15, 2010

VIA E-MAIL

Stephen V. Bomse

Orrick

The Orrick Building405 Howard Street


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

Dear Steve:

I write in response to your letter proposing that the parties agree to the district courtsamendment of its March 22, 2010 order (Doc. #623) directing the ACLU and Equality

California to produce documents in response to Proponents document requests in light of theNinth Circuits April 12, 2010 ruling.

In principle, Plaintiffs would not object to the district courts amending its order in light of

the Ninth Circuits ruling, but Plaintiffs reserve the right to weigh in with the district courtregarding the content of any such amendment. As you know, while the Ninth Circuit noted

that it did not hold [in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (Perry I)]

that the privilege cannot apply to a core group of associated persons spanning more than one

entity, slip op. at 9, it also noted that the district court had ruled that, even if such a privilegedid provide protection in some circumstances, the ACLU and Equality California in any

event failed to furnish the magistrate [judge] information from which a functional

interpretation of [an inter-organizational] core group . . . could be derived. Id. (quotingDoc #623 at 10).

In addition, as to Proponents claim, Magistrate Judge Spero declined to deem privileged

communications between Proponents and organizations other than ProtectMarriage.com on

the ground that [P]roponents have never asserted a First Amendment privilege over

communications to other organizations. Doc #372 at 2-3. The magistrate judge further held



27/33

Stephen V. BomseApril 15, 2010

Page 2

that [e]ven if the Court were to conclude that the First Amendment privilege had been

properly preserved as to the communication among the members of core groups other than

the Yes on 8 and ProtectMarriage.com campaign, proponents have failed to meet theirburden of proving that the privilege applies to any documents in proponents possession,

custody or control. Id. The magistrate judge explained that [t]here is no evidence before

the Court regarding any other campaign organization, let alone the existence of a core group

within such an organization, and no evidence before the Court that any of the documents atissue are private internal communications of such a core group regarding formulation of

strategy and messages. Id. at 3.

Lastly, Plaintiffs appreciate your clients desire and willingness to end this discovery dispute

and request a copy of the production your clients provide to Proponents.

Very truly yours,

/s/Theodore J. Boutrous Jr.Theodore J. Boutrous Jr.

TJB/eam

cc: Jesse Panuccio

Lauren Whittemore

James Esseks

100850163_1.DOC



28/33

Exhibit I



29/33



30/33



31/33

Exhibit J



32/33



33/33


perry v. scharzenneger exhibits to prop. 8 proponents' response to april 13, 2010, order to show...

Documents