Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filed (ECF) Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo response to motion (,motion to stay lower court action). Date of service: 03/26/2010.  (TO)
Kristin Perry, et al v. Arnold Schwarzenegger, et al
No. 10-15649 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________ KRISTIN M. PERRY, et al., Plaintiffs-Appellees, v. ARNOLD SCHWARZENEGGER, et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors-Appellees. _________________________ On Appeal From The United States District Court For The Northern District Of California No. CV-09-02292 VRW Honorable Vaughn R. Walker ____________________________________________________ APPELLEES' RESPONSE TO ACLU'S AND EQUALITY CALIFORNIA'S MOTION TO EXPEDITE ____________________________________________________ THEODORE J. BOUTROUS, JR. CHRISTOPHER D. DUSSEAULT THEANE EVANGELIS KAPUR ENRIQUE A. MONAGAS GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 THEODORE B. OLSON Counsel of Record MATTHEW D. MCGILL AMIR C. TAYRANI GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500
Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
Plaintiffs respectfully request that the Court significantly expedite the appeal from the district court's discovery order filed by No on Proposition 8, Campaign for Marriage Equality: A Project of the American Civil Liberties Union of California and Equality California (collectively "ACLU"). Plaintiffs will be
irreparably harmed by any further delay in this case--which was tried over two months ago but has yet to be decided because of this discovery dispute--because they are being denied the fundamental right to marry. Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) ("constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm"). The district court denied Plaintiffs' motion for a preliminary injunction primarily because the parties committed to bringing this case to trial on a most expeditious basis. In a matter of months, Plaintiffs completed all necessary fact and expert discovery and prepared for and conducted a three-week trial in an effort to reach a speedy resolution of their claims. Yet now, more than two months since trial, closing arguments have not been scheduled because of the delay caused by Proponents' belated discovery requests. Indeed, the two months that this discovery dispute has consumed since trial is approaching nearly 25% of the entire time that elapsed between the district court's denial of Plaintiffs' preliminary injunction motion and the commencement of trial. Because the State of California has
admitted that Proposition 8 continues to violate the constitutional rights of tens of
thousands of Californians every day, it is critical that this appeal respect the expedited schedule set forth by the district court. Plaintiffs therefore request that the Court significantly expedite the appeal, as it did in connection with Proponents' appeal in November. Perry v.
Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). On Friday, November 20, 2009, the Court ordered Plaintiffs to respond to Proponents' motion to stay pending appeal by 12 noon on Monday, November 23, 2009. Proponents were then given until 5:00 p.m. on November 23, 2009 to file a reply. Oral argument was held only five business days after briefing was completed. The Court should implement a similarly expedited briefing schedule here, which would respect the schedule set by the district court. Alternatively, the Court could resolve this appeal on the basis of the wellestablished contempt rule, which holds that, to obtain appellate jurisdiction, nonparties who seek review of a discovery order must first refuse to comply with that order, be sanctioned for contempt, and then appeal from the contempt citation. In re Subpoena served on Cal. Pub. Util. Comm'n, 813 F.2d 1473, 1476 (9th Cir. 1987) ("[I]f the district court denied a nonparty's motion to quash, the nonparty could obtain review only by electing to ignore the subpoena and appeal the ensuing contempt citation. Until a contempt citation is issued as a final judgment in the contempt proceeding, we lack jurisdiction to review the order."); Belfer v. Pence, 435 F.2d 121, 123 (9th Cir. 1970) ("Here there is no evil which cannot be 2
corrected on a later appeal. The rights of the [nonparty] petitioners are protected sufficiently by their ability to disobey and test the Hawaii court's discovery order on appeal from a subsequent citation for contempt."). The contempt rule applies with equal force when a third party resisting discovery petitions for mandamus. Belfer, 435 F.2d at 123 (denying mandamus because nonparties could protect their interests on appeal from a contempt order); see also William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial § 13:68 (The Rutter Group 2009) ("A discovery order directed at a nonparty is not reviewable by mandamus because the nonparty can refuse to comply and appeal from a contempt order."). Although ACLU does not mention the contempt rule or any basis for this Court's jurisdiction over the appeal, it is clear that ACLU must first refuse to comply with the district court's discovery order and be held in contempt before it may pursue an appeal. See In re Subpoena, 813 F.2d at 1476 n.1 ("The
requirement that a nonparty must be in contempt of court in this situation is a serious matter and serves to illustrate the strictness in applying the final judgment rule."); see also Burden-Meeks v. Welch, 319 F.3d 897, 900 (7th Cir. 2003) ("When documents are sought from the entity that claims the privilege, there is every reason to insist that it go through the contempt process, which by raising the stakes helps the court winnow strong claims from delaying tactics that, like
other interlocutory appeals, threaten to complicate and prolong litigation unduly.").1 Respectfully submitted. Dated: March 26, 2010 By /s/ Theodore B. Olson GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Matthew D. McGill Amir C. Tayrani 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 955-8668 Facsimile: (202) 467-0539 Theodore J. Boutrous, Jr. Christopher D. Dusseault Theane Evangelis Kapur Enrique A. Monagas 333 S. Grand Avenue Los Angeles, California 90071 Telephone: (213) 229-7804 Facsimile: (213) 229-7520 Attorneys for Plaintiffs-Appellees KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO
Likewise, ACLU cannot invoke the "narrow and selective" collateral order doctrine. Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 609 (2009) (internal quotation marks omitted). Indeed, the U.S. Supreme Court recently held in Mohawk that discovery orders denying claims of privilege are not appealable under the collateral order doctrine. Id. at 603; see also Perry, 591 F.3d at 1154-56. 4
CERTIFICATE OF COMPLIANCE I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached brief is proportionately spaced, has a typeface of 14 points, and contains 819 words. Dated: March 26, 2010 By /s/ Theodore B. Olson
9th Circuit Case Number(s) No. 10-15649
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SERVICE LIST Alan L. Schlosser ACLU FOUNDATION OF NORTHERN CALIFORNIA INC. 39 Drumm St. San Francisco, CA 94111 Judy Whitehurst OFFICE OF THE COUNTY COUNSEL Kenneth Hahn Hall of Administration, Room 648 500 W. Temple Ave. Los Angeles, CA 90012 Andrew P. Pugno LAW OFFICES 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Carolyn Chang FENWICK & WEST, LLP Silicon Valley Center 801 California Street Mountain View, CA 94041-1990 David H. Thompson Howard C. Neilson, Jr. Nicole Moss Peter A. Patterson COOPER & KIRK, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036 Leslie Kramer Lauren Whittemore FENWICK & WEST, LLP 555 California Street San Francisco, CA 94104