Perry et al v. Schwarzenegger et al

Filing 264

Transcript of Proceedings held on 11/19/09, before Judge Joseph C. Spero. Court Reporter/Transcriber Katherine Powell Sullivan, CRR, Telephone number 415-794-6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/19/2010. (Sullivan, Katherine) (Filed on 11/24/2009)

Perry et al v. Schwarzenegger et al Doc. 264 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page1 of 24 Pages 1 - 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JOSEPH C. SPERO KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, ) ) ) ) Plaintiffs, ) ) VS. ) ) 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 ) 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. ) ) ___________________________________) NO. C 09-2292-VRW San Francisco, California Thursday November 19, 2009 10:00 a.m. TRANSCRIPT OF PROCEEDINGS Reported By: CSR #5812, Katherine A. Powell, CSR #5812, RPR, CRR Official Reporter - U.S. District Court Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Dockets.Justia.com Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page2 of 24 2 APPEARANCES (via telephone): For Plaintiffs: BY: For Plaintiffs: GIBSON, DUNN & CRUTCHER 333 South Grand Avenue Los Angeles, California 90071 MATTHEW D. MC GILL, ESQUIRE DENNIS J. HERRERA, CITY ATTORNEY Office of the City Attorney 1390 Market Street, Sixth Floor San Francisco, California 94102-5408 MOLLIE LEE, ATTORNEY AT LAW MENNEMEIER, GLASSMAN & STROUD 980 9th Street, Suite 1700 Sacramento, California 95814-2736 ANDREW WALTER STROUD, ESQUIRE STATE ATTORNEY GENERAL'S OFFICE 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 TAMAR PACHTER, ATTORNEY AT LAW COOPER & KIRK 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 NICOLE MOSS, ESQUIRE BY: For Defendant: BY: For Defendant: BY: For Defendant Intervenors: BY: Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page3 of 24 3 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 dated -THE CLERK: NOVEMBER 19, 2009 PROCEEDINGS 10:00 A.M. Calling case C 09-2292, Kristin M. Perry versus Arnold Schwarzenegger. Counsel, please state your appearances. MR. MCGILL: This is Matthew McGill, from Gibson, Dunn & Crutcher, for the plaintiffs. MS. MOSS: This is Nicole Moss, with Cooper & Kirk, for the defendant intervenors. MR. STROUD: This is Andrew Stroud, Mennemeier, Glassman & Stroud, on behalf of Governor Schwarzenegger and the Administration defendants. MS. PACHTER: This is Tamar Pachter on behalf of the California Attorney General. MS. LEE: This is Mollie Lee on behalf of plaintiff intervenor, the City and County of San Francisco. THE COURT: Thank you, counsel. We're here because I have received two letters, one (Interruption in the proceedings.) UNIDENTIFIED SPEAKER: THE COURT: Hello? There is an alarm Just wait one second. going off in the building, which we are going to let pass. One letter dated November 16th, from Mr. Dettmer, and Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page4 of 24 4 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 one dated November 17th, from Nicole Moss, counsel for the defendant intervenors. And those are the issues raised by -- those two letters are the issues that I wanted to address in this proceeding. And I have a couple of questions I wanted you to address in your remarks. The first is, when the -- it seems to me that Chief Judge Walker's November 11th order had two parts to it, really. One dealt with some 20-odd specific documents that were ordered produced, and the rest dealt with culling out, based on the categories that he set forth, the remainder of the documents that were responsive to document request number 8, that would be produced. The first question is, when is it practical to produce those two types of documents? The second question is, when you anticipate actually beginning the deposition that Chief Judge Walker ordered to commence, as I recall, promptly. And, finally -- and I just throw this out for discussion, because I don't actually know all the ins and outs of your thinking on these matters -- whether there is any utility or interest in discussing a stipulated order from the Court that the production of the particular documents at issue be without a waiver of the qualified privilege at issue. So those are my areas of concern. Of course, I would Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page5 of 24 5 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 want to hear any other areas of concern that you want to address, as well. Why don't we just take it in order, starting with counsel for plaintiffs. MR. MCGILL: Thank you, Judge Spero. This is Matthew McGill, from Gibson, Dunn & Crutcher for the plaintiffs. Taking your questions in the order in which you presented them, first, when is it practical to present -- to produce these two types of documents? We believe it's practical for the defendant intervenors to produce immediately at least the 21 documents that they submitted to Judge Walker in camera. As to the other documents that are of the types that Judge Walker identified as not privileged and responsive, I expect that Ms. Moss can address that in greater detail. But I understand, from our ongoing correspondence with them, the defendant intervenors, that they have been working diligently to review and assemble the documents for production, and will do so -- you know, and will be able to do so in reasonably short order. The holdup, at this point, to any production is their belief that they can continue to withhold production until their request for a stay is litigated soley within the Ninth Circuit and then in the Supreme Court of the United States Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page6 of 24 6 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 after that. And Ms. Moss has informed us that the defendant intervenors, in fact, do not intend to produce any documents identified by Judge Walker as privileged -- as not privileged and responsive, until their stay litigation has run its course. With respect to your second question, about the timing of depositions, we have tentatively agreed on a number of deposition dates in the first two weeks of December for the defendant intervenors and other as-identified members of the Yes On 8 executive committee. The deposition timing, of course, is subject to our ability to review and -- to receive and review these documents. We will push forward with those depositions on the December dates, even in the absence of the documents. But we would, I expect, ask Judge Walker to allow us to depose those people a second time, as his November 11th order contemplates, once we receive the documents, if we are not to get them until December. The third question, as to a protective order, we have offered to the defendant intervenors, from the very outset of this privilege dispute, that we would agree to accept the documents on an attorneys' eyes only basis, until such time as their privilege claims were litigated in the District Court and their state claims were litigated, and we could resolve the admissibility of those documents and their status under the Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page7 of 24 7 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 protective order at a date closer to trial. My understanding of the defendant intervenors' position is that they are not amenable to producing, even under an attorneys' eyes only protective order. And that position strikes us, frankly, as quite unreasonable, given that under the Ninth Circuit precedent that governs these claims of First Amendment privilege, which would -- the most recent of which is the Dole case, which is 950 F.2d 1456. In that case, Judge Reinhardt, writing for the Ninth Circuit, found that certain documents were indeed privileged under the First Amendment, and held that the remedy for that was an attorneys' eyes only protective order. So we have offered to the defendant intervenors, at least on a provisional basis, the relief that the Ninth Circuit, at least in the past, has authorized as appropriate in these cases of First Amendment privilege. THE COURT: intervenors. MS. MOSS: Good morning, Judge. This is Nicole Moss All right. Let me hear from the for defendant intervenors. Taking your questions again in order, as Mr. McGill did, he is correct, certainly, that as a practical matter we could produce the 21 documents identified by Chief Judge Walker in his November 11th order very quickly. Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page8 of 24 8 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 But Mr. McGill has also, I think, correctly pointed out, our position isn't so much one of the practicality of producing those documents; it's our concern that we continue to have the assertion of our First Amendment privilege. And we have sought a stay with the Ninth Circuit. And we have asked that that request for a stay be considered in an expedited manner. And we do not believe that it's appropriate to have any of the documents over which we have asserted First Amendment privilege produced until the Ninth Circuit has had an opportunity to review and weigh in on these claims. In terms of the practical question for the remainder of the documents, we have diligently reviewed them to be in a position to be able to produce, if that is what is ultimately decided by the appellate courts. As a practical matter, I can say that we can begin a rolling production in fairly short order. be a rolling production. One significant reason for that is, Judge Walker's November 11th order provided additional guidance on what sorts of documents, in fact, have to be produced in response to plaintiffs' discovery requests. So we are having, now, to go back through, in light of that guidance, and look at the documents and determine which of those documents that we previously asserted privilege to are Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 But it would have to Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page9 of 24 9 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 really just off the table now, not because of privilege issues but because Judge Walker has made clear they are not responsive. And so we could begin a rolling production. I -- I would say, within two weeks -- we could begin a short rolling production probably within a week; although, that hits us up against -- a week from today, of course, is Thanksgiving. THE COURT: Wait. I guess I don't understand that. There's a You got the judge's order eight days ago. limited universe here. It may be several thousand documents, but you're saying you won't be ready to produce any documents until maybe as much as two weeks or maybe next week? MS. MOSS: No. We certainly can begin producing as soon as we -- this is Nicole Moss again, for the defendant intervenors. We could certainly begin producing documents, at least some amount of them, fairly quickly, within a day or two, if we were dealing solely with the practical -- solely with the practical questions of production. Immediately upon receiving Judge Walker's orders, we began a review to determine, in light of the guidance he gave, which documents were still at issue. Our concern more about -- and I'm sorry if I was not clear on this. When we start talking two weeks, what we would request -- we realize what plaintiffs have asked for is an Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page10 of 24 10 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 order that we produce on a date certain within three days. what we would request would be 14 days. And the reason for that is this: And If there is a date certain entered by the District Court for when we have to produce these documents, we would have the ability, under the Ninth Circuit rules, to seek emergency treatment of our stay motion. As it stands, we've asked for expedited treatment of that motion. But we can't do more at this point. We are not opposed to a date certain being entered so that we can avail ourselves of the rules for seeking emergency treatment. But we think that three days is not a reasonable amount of time to give the Ninth Circuit, to be able to have full briefing on the matter and to give it the appropriate consideration that it is due. And so that is why when I say -- a week puts us up against Thanksgiving. So we believe that what would be reasonable would be if the Court were inclined to enter an order requiring (inaudible) for production, that it be two weeks. And, in that way, we would comply, of course, with whatever briefing schedule the Ninth Circuit set. And we would immediately upon getting such an order certified to the Ninth Circuit for the emergency treatment as we're entitled to do Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page11 of 24 11 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 under the rules. THE COURT: MS. MOSS: entered. Two weeks from when? Two weeks from whenever the order would be If that were today, then from today or from tomorrow. THE COURT: So you are thinking December 3rd? Judge -- UNIDENTIFIED SPEAKER: THE COURT: some questions. Let me just finish with asking Ms. Moss So you are thinking December 3rd? MS. MOSS: THE COURT: first deposition? MS. MOSS: The tentative date of the first deposition Yes, Your Honor. And when are the tentative dates of the is actually December 1st. THE COURT: see. Okay. Well, but you don't want the rolling production to start until December 3rd? MS. MOSS: That is -- this is Nicole Moss. Okay. And when you say December 3rd -- I Yes, that is correct. We believe that that would give the Ninth Circuit sufficient time, we hope. I mean, it -- to -- to be able to consider the issue and to issue whatever opinion it's going to issue. And, certainly, if it goes in our favor and agrees Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page12 of 24 12 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 with us that these documents are protected by the First Amendment, then there would be no production. And if it disagrees, then we would have whatever ability exists to go up to the Supreme Court, potentially. But -THE COURT: documents? MS. MOSS: THE COURT: That is correct. Well, and when did you expect the Supreme During which time you wouldn't produce Court to actually react to your proposed hypothetical petition for review of any failure to stay the matter by the Circuit? MS. MOSS: Well, we certainly, as we have done throughout dealing with this matter, we would seek that immediately and would ask for -- for a decision as quickly as possible. THE COURT: But envision, then, from the Court's There is a perspective, there is a trial date in January. discovery cutoff, I think, actually coming up the end of this month for some discovery, if I'm not mistaken. What you're saying is, asking me to endorse a schedule which essentially says, in the absence of the chief judge being here, the trial date's going off. MS. MOSS: Right? Well, I -- I -- potentially, Your Honor. If we -- if we ultimately do not prevail on our First Amendment issues, and there's -- and have to produce the Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page13 of 24 13 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 documents, certainly, it would be sometime in December that the documents would get produced. THE COURT: If you were lucky. I mean, if the Supreme Court, under your scenario, responded immediately, which seems unlikely, but if they responded immediately, then sometime later in December, just before the trial, you would be producing the documents. It's at least as likely you wouldn't get any answer until January. I'm concerned that going down -- that I don't have the luxury, given the schedule the Chief Judge has set, to go along with a schedule that is as extended as you want. He set a rather -- he set a specific schedule and a specific trial date. And I think one of the tasks of the Court is to manage discovery so it is within that trial date. But I understand your position on the matter. Tell me, just because I'm new to this part of the process, your reaction to the utility of a stipulated protective order, which apart from being attorneys' eyes only and the protections that that might, as the Chief suggested, engender in terms of people's disclosures having a negative effect, that the Court could actually enter an order -- and I don't know the effect of it in this context -- saying it's not a waiver of your qualified immunity rights. immunity rights, qualified privilege rights. Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Qualified -- not Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page14 of 24 14 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 Moss. Do you have any reaction to that? MS. MOSS: Yes, Your Honor. And, again, for the court reporter, this is Nicole We would be opposed to that. And we don't believe that it would fully and appropriately protect the First Amendment rights that are being asserted by the proponents in the marriage campaign. We think the chilling effects that we're concerned with happens with disclosure, even if it's only to the attorneys. And so we do not view that as an adequate remedy. Two other real quick points, if I may make, is to be -- to note that some of the delay that has occurred, if you want to call it delay, we have expeditiously sought our appeals, filed them within 24 to 36 hours of getting a ruling. Plaintiffs, on their part, have yet to file a response to our motion -- stay motion in the Ninth Circuit. So to the extent that they're concerned about expedition, something that was fully within their control, they have not yet done, and would have helped to tee this issue up sooner, potentially, for the Ninth Circuit. While I understand the concern that the trial date is set, we believe that the First Amendment issues that we are asserting, that these are very precious First Amendment rights, and we have been asserting them in good faith, and have been Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page15 of 24 15 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 working as diligently as possible to be able to meet all the deadlines, including expending a tremendous amount of resources on reviewing documents that are, in our view, not subject to production and are privileged, but, certainly, working in good faith to be in a position to be able to produce those if we are ultimately proven wrong. And I'm not sure there is much else we can do consistent with asserting what we believe to be very fundamental First Amendment rights. THE COURT: your good faith. And I think the Chief Judge has made it clear that he thinks that all counsel are proceeding in a professional fashion, and has great respect for the positions of all the parties in the matter. That's not the question. Well, that's fine. And I don't doubt The question is whether there is a way through this which is consistent with the judge's schedule that he has set, because I think from the perspective of, if I may say, a magistrate judge working on discovery in his absence, I think I am bound to try to implement that schedule. And I just don't see how I can do it if you have a rolling production that begins on December 3rd. A rolling production that ends around then, perhaps, but not one that begins around then. You've had more than a week, already, to review the Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page16 of 24 16 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 documents. I certainly would give you more than a week to But I don't know that I could, complete your review. consistent with the schedule the Court has set, do it by then. And maybe that gets you what you need, because you'll be able to take that to the Court of Appeals and then get a decision. Okay. All right. There was someone else who wanted to make -- did you have any further comments you wanted to make, Ms. Moss? MS. MOSS: THE COURT: MR. MCGILL: the plaintiffs. I just have two quick reactions to Ms. Moss's comments, the first of which is: The defendant intervenors No, Your Honor. Okay. Judge Spero, this is Matthew McGill for could have moved on an emergency basis in the Ninth Circuit. Ninth Circuit Rule 27.3 provides for two different procedures under which a movant can obtain relief either within 7 or 21 days. And, yet, the defendant intervenors availed themselves of neither procedure, and, instead, put us on a schedule that in the normal course would end on December 3rd, which is three days after the close of fact discovery. Ms. Moss is correct, we have not yet responded. And that, you know, there's all the obvious reasons for that, which Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page17 of 24 17 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 include the fact that depositions are ongoing of expert witnesses, and other hearings and other commitments in other cases. My second reaction is that Ms. Moss says that an attorneys' eyes only protective order would not be sufficient to protect her and her clients' interests. And the Ninth Circuit simply disagrees with that point of view. Dole case. THE COURT: I take it that Ms. Moss disagrees with And that's made clear by the results in the that evaluation of the Dole case. MS. MOSS: briefly respond. Certainly, the Dole case we do disagree, and we think there is a -- a very big difference between that case and here is that the parties in Dole agreed to a confidentiality agreement. And here we, from the outset, have made clear that while we would work in good faith to create a protective order in the event we lose our First Amendment claims, it was not a remedy for the harm that we believe would result. And, secondly, I simply disagree with Mr. McGill on what the Ninth Circuit rules require. We do not believe that we have the right under those rules to seek emergency treatment of our motion until there is Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Your Honor, this is Nicole Moss. If I may Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page18 of 24 18 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 a date certain set. there was not. Which, based on the November 11 order, And so it's not for lack of wanting to have this dealt with expeditiously. It's, in our view, lack of the ability to invoke that in the Ninth Circuit. THE COURT: You don't think there was a date certain set, notwithstanding the fact that there was a discovery cutoff? MS. MOSS: There is -- based on our -- and I can say that we have discussed this -- we have -- you know, we considered this carefully, and discussed it with the staff attorneys at the Ninth Circuit, to see if it would be appropriate to file such a motion. We were advised that no. So, you know, again, we do not oppose having that entered so that we can seek that kind of expedited treatment but we -THE COURT: Did you tell the staff at the Ninth Circuit that you were ordered to produce the documents, and you had to produce them by November 30th, which was the discovery cutoff? MS. MOSS: THE COURT: MS. MOSS: That is my understanding. That's your -I didn't personally have the conversation, but that is my understanding. THE COURT: My guess is that's not the way the Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page19 of 24 19 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 conversation went. But it's of no matter. I know that everyone has been proceeding in good faith and wants to -obviously, wants to prevail, but wants to have their issues addressed in the first instance. about that. So I'm not terribly concerned It's a side issue to me. I will get out an Here's what I am going to do. order this afternoon on this matter. One piece of it is I am going to order the parties to meet and confer immediately on a stipulated protective order. It's not going to be -- it's going to be a normal stipulated protective order, not one that's addressed at a nonwaiver of the particular privileges involved -- I understand your position on that -- but, so that in the event there is a production or that I order a production, the parties can apply to those documents an appropriate level of protection. So I am going to order the parties to negotiate on a stipulated protective order to protect confidentiality. There is an excellent form of a protective order on the courts' Web site. If you'll just click on "Forms" you'll And then there are pull up the stipulated protective order. various levels of production -- of confidentiality. And that needs to be done immediately. If you're unable to do it by early next week, then the Court will enter one without the parties' stipulation, based on the showings in the prior proceedings before Judge Walker. Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page20 of 24 20 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 So I understand that you'll be doing this in a fashion that you don't think it's an adequate remedy. And somebody will decide some day whether you are correct or incorrect. that in place. So that's a heads-up that that is likely to be required to be done in the next day or two. tomorrow. Yes, ma'am. MS. MOSS: Nicole Moss again. If it's at all helpful for you to know, we have exchanged versions of a protective order. And they were Your Honor, Nicole -- I'm sorry. This is Meaning today or But, in the meantime, I want to have modeled off the one that you are referencing. The -- apart from the remedy issue, a main concern that defendant intervenors had and that we have incorporated into the protective order that we proposed is that on the plaintiff intervenors -- on the plaintiffs' side, it would be the plaintiff intervenor, City and County of San Francisco, and potentially others have individual attorneys who were themselves involved in the No On 8 campaign. And we were quite concerned that even with an attorney eyes only protective order, that some of these documents would be turned over to what are effectively the political opponents of protectmarriage.com. Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page21 of 24 21 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 pending. be great. And so we had drafted protections into a protective order to account for that fact. And that has -- and we've submitted that to plaintiffs, and have not heard back from them on that. THE COURT: Well, good. Work that out. That would MS. MOSS: That was an issue that was potentially MR. MCGILL: This is Matthew McGill for the plaintiffs, Your Honor. I would -- this provision that Ms. Moss has identified suffers from numerous flaws, not the least of which is it fails to define involvement in the No On 8 campaign. But I want to let -- it seems most particularly directed at the -- at Dennis Herrera, the City Attorney of San Francisco, so I think it would be appropriate for me to invite Ms. Lee, who represents the City and County of San Francisco, to respond. MS. LEE: This is Mollie Lee. Responding to defendant intervenors' concerns about information becoming available to their political opponents, from what I have seen, they haven't identified any basis for refusing to enter a protective order on those grounds. There's certainly nothing, that I'm aware of, that would indicate that information that was provided under the Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page22 of 24 22 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 Court's standard form of a protective order -- which I think provides that the information must be used for litigation purposes only -- would in any way be used for campaign purposes. So we still haven't seen any articulation of what their particular concern is. We would be happy to discuss it with them if they can tell us exactly what they're concerned about, and the specific individuals about whom they are concerned. THE COURT: work out. Well, this is an issue you should all I mean, this is, as they say, not rocket science. I appreciate the City Attorney's position that they haven't articulated a basis, but I'm sure you know exactly what they're talking about. With respect to the identification of specific individuals, maybe that needs to be done. But this is the kind of thing that counsel as skilled as the counsel in this case should well be able to work out. If there's any particular disputed provision, then you actually tried to work out the details of it, and both shown flexibility on those details, but at the bottom line you can't, then I'd be happy to make a call and say "include it this way" or "include it that way." any time for that. But, in any event, we're going to have a protective Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 And you can come to me at Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page23 of 24 23 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 order in place. And I'm just saying I want you to expedite I want those to occur today and tomorrow. those negotiations. Because next week we are going to have a protective order, and it will be either one you have negotiated or it will be one you have not negotiated, because I think there's a basis in the prior orders of the Chief Judge for having such an order. I want it to be done right away. But, I want to emphasize that I expect both sides to be flexible in that regard. I don't -- you know, this -- this is a matter which is of importance to both sides. But with regards to the detail of this particular provision in this particular protective order, not everything in it is crucial. And I'm sure that you will all be flexible and professional in your negotiations, but those need to be done immediately. Would anyone else like to be heard? Silence, I'm hearing in this case. unusual. (Laughter) THE COURT: All right. Well, thank you very much. That must be very I appreciate your making yourselves available for this hearing so promptly. We will try to react equally promptly and get you out an order this afternoon. If you need another telephonic hearing or want to submit letters regarding some narrow issue at the end of your Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659 Case3:09-cv-02292-VRW Document264 Filed11/24/09 Page24 of 24 24 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 negotiations on a protective order, I would be happy to address that or any other issue that comes up. Thank you very much. All right? We'll stand in recess. (Counsel thank the Court.) (At 10:33 a.m. the proceedings were adjourned.) - CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. DATE: Friday, November 20, 2009 s/b Katherine Powell Sullivan _________________________________ Katherine Powell Sullivan, CSR #5812, RPR, CRR U.S. Court Reporter Katherine Powell Sullivan, CSR, RPR,CRR Official Reporter - U.S. District Court (415) 794-6659