Perry et al v. Schwarzenegger et al

Filing 595

Transcript of Proceedings held on 01/20/10, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863-5179. 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 5/13/2010. (jjy, COURT STAFF) (Filed on 2/12/2010)

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PAGES 1 - 26 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JOSEPH C. SPERO, MAGISTRATE JUDGE KRISTIN M. PERRY, ET AL., ) ) PLAINTIFFS, ) ) VS. ) ) ARNOLD SCHWARZENEGGER, ) ET AL., ) ) DEFENDANTS. ) ____________________________) NO. C 09-2292 VRW (JCS) SAN FRANCISCO, CALIFORNIA WEDNESDAY, JANUARY 20, 2010 TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFF: BY: GIBSON DUNN & CRUTCHER LLP 1050 CONNECTICUT AVE., NW WASHINGTON, DC 20036 MATTHEW DEMPSEY MC GILL ATTORNEY AT LAW FOR DEFENDANT: BY: LAW OFFICES OF ANDREW P. PUGNO 101 PARKSHORE DR. #100 FOLSOM, CA 95630 ANDREW PERRY PUGNO ATTORNEY AT LAW REPORTED BY: JAMES YEOMANS, CSR 4039, RPR OFFICIAL REPORTER COMPUTERIZED TRANSCRIPTION BY ECLIPSE JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 2 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 WEDNESDAY, JANUARY 20, 2010 9:00 A.M. (THE FOLLOWING PROCEEDINGS WERE HEARD IN OPEN COURT:) THE CLERK: CALLING CASE NUMBER C 09-2292, PERRY VERSUS ARNOLD SCHWARZENEGGER. COUNSEL. MR. PUGNO: ANDREW PUGNO THE GENERAL COUNSEL FOR THE DEFENDANT INTERVENORS. MR. MC GILL: GOOD MORNING, YOUR HONOR. MATTHEW MC GILL GIBSON DUNN & CRUTCHER FOR THE PLAINTIFFS. THE COURT: GOOD MORNING. SO I'VE SKIMMED THE PAPERS THAT I WAS ALERTED TO 20 MINUTES AGO. REGARDING THE -- I GUESS, IT IS THE INTERVENOR'S REQUEST, THAT THE COURT MODIFY WHAT THE COURT LISTED IN A JANUARY 8TH 2010 ORDER. IN A SECOND I'M GOING TO ASK ONE OF YOU IF YOU HAVE A COPY OF THE LAST NINTH CIRCUIT FINNEY OPINION, I DIDN'T HAVE TIME TO GET IT. BUT MY FIRST QUESTION FOR YOU, MR. PUGNO, WHY SHOULD I -- THIS IS A MOTION TO RECONSIDER, NOT A MOTION TO CORRECT. IT'S A CLEVER USE OF THE PHRASE CORRECT, BUT IT IS A MOTION TO RECONSIDER. A MOTION TO RECONSIDER TYPICALLY WOULD REQUIRE THAT YOU HAVE A SUBSTANTIAL SHOWING ON HOW THE SITUATION HAS CHANGED. MR. PUGNO: CERTAINLY. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 TIMES. THE COURT: IT CERTAINLY STRIKES ME THAT YOU HAVE AN UPHILL BATTLE ON THAT, YOU KNOW, WITH RESPECT TO -- CERTAINLY YOU WANT TO ADD FOUR PEOPLE TO THE GROUP, ONE OF WHICH IS MCSI AND I FORGOT THE NAME OF THE GENTLEMAN INVOLVED. MR. PUGNO: THE COURT: MR. CRISWELL. MR. CRISWELL, THAT WAS VENTILATED MANY AS TO THE OTHERS, THESE ARE INDIVIDUALS THAT, AT LEAST, TWO OF THEM, WELL-KNOWN IN THE CAMPAIGN FOR VARIETY OF REASONS. I DON'T KNOW WHO MR. DOE IS, SO I CAN'T TELL YOU WHETHER HE'S WELL-KNOWN IN THE CAMPAIGN FOR VARIETY OF REASONS. ORDINARILY ONE WOULD SAY YOU'VE HAD SEVERAL BITES AT THIS APPLE, AND YOU WAITED UNTIL TWO THIRDS OF THE TRIAL WAS DONE AND NOW YOU WANT TO STOP FROM GETTING THESE DOCUMENTS, AT LEAST, UNTIL THEIR CASE IN CHIEF IS ALMOST DONE. I DENY IT ON THAT BASIS? MR. PUGNO: THANK YOU, YOUR HONOR. I APOLOGIZE WE WHY SHOULDN'T HAVE TO COME BACK WITH THIS, WE DO. THE COURT: NO NEED TO APOLOGIZE, THIS IS LITIGATION AND YOU DO WHAT YOU NEED TO DO. MR. PUGNO: LET ME ADDRESS EACH OF THOSE ISSUES. FIRST OF ALL, JUST TO -- REMINDER THAT THE NINTH CIRCUIT AMENDED OPINION CAME OUT ON A MONDAY THE 4TH, IT WAS TWO DAYS LATER THAT MY CO-COUNSEL CAME BEFORE YOU IN THE INITIAL HEARING JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 ON THE 6TH. WE WERE ESSENTIALLY GIVEN OVERNIGHT TO COME UP WITH A NEW LIST THAT IS DIFFERENT THAN ANY PREVIOUS CORE LIST. CORE LIST IN THE PAST HAD BEEN WITH REGARD TO OTHER DISCOVERY MATTERS, WITH REGARD TO MANAGEMENT RESPONSIBILITY AND DECISION MAKING RESPONSIBILITY. THE NEW CORE AS DEFINED BY THAT -- IN THE AMENDED OPINION, WAS A DIFFERENT KIND OF CORE, A CORE OF PEOPLE INVOLVED, ENGAGED IN FORMULATION OF STRATEGY. SO WE WERE GIVEN -THE COURT: CIRCUIT'S OPINION? MR. PUGNO: IT WAS IN YOUR HONOR'S -- ACTUALLY QUOTED WHAT WAS THE LANGUAGE EXACTLY THE IN YOUR HONOR'S DECISION OF THE 8TH AT PAGE TWO, AND IT'S THAT THE PROPONENTS FIRST AMENDMENT PRIVILEGE PROTECTS QUOTE "PRIVATE INTERNAL CAMPAIGN COMMUNICATIONS CONCERNING FORMULATION OF MESSAGE -- EXCUSE ME, OF STRATEGY AND MESSAGES." AND FURTHER, THAT THE PRIVILEGE PROTECTS QUOTE "COMMUNICATIONS AMONG THE CORE GROUP OF PERSONS ENGAGED IN THE FORMULATION OF CAMPAIGN STRATEGY AND MESSAGES." AND THAT IS AT PAGE -- WELL, THE SLIP OPINION AT PAGE 36 12 OF THAT DECISION. THE COURT: THE CORE GROUP OF PERSONS ENGAGED IN THE FORMULATION OF STRATEGY AND MESSAGE? MR. PUGNO: THAT'S RIGHT. THAT IS A DIFFERENT CONCEPT THAN COUPLE OF MONTHS EARLIER WHEN WE WERE ACTUALLY DEALING WITH WHO HAD MANAGEMENT AND DECISION MAKE RESPONSIBILITIES FOR THE OPERATION OF THE CAMPAIGN. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THEY'RE JUST DIFFERENT CONCEPTS, THIS WAS -- THIS CORE GROUP WITH REGARD TO THE FORMULATION OF STRATEGY AND MESSAGING IS A -- WAS A NEW CONCEPT THAT WAS AMENDED AND RESTATED THAT MONDAY IN FOOTNOTE 12. WE WERE HERE TWO DAYS LATER OVERNIGHT, WE DID THE VERY BEST WE COULD HAVE PREDICT UNDER THIS NEW STANDARD WHO WOULD BE IN THAT CORE GROUP. THE COURT: THAT ACTUALLY IS NOT MY PROBLEM. YOU HAD YOU DID THREE DAYS FROM THE COURT'S OPINION TO GENERATE THAT. NOT TAKE THE SLIGHTEST STEP FOR TWO DAYS TO TRY TO IDENTIFY THE CORE GROUP. THEN YOU HAD -- THIS COURT GAVE YOU ANOTHER DAY. OKAY. SO I DON'T WANT TO -THAT'S FINE. NOT THAT THAT'S IMPORTANT. THIS IS NOT A MR. PUGNO: THE COURT: MR. PUGNO: THE COURT: SUBJECT THAT IS FOREIGN TO YOU. MR. PUGNO: THE COURT: PEOPLE COMING IN. MR. PUGNO: WHAT WE DID NOT KNOW AND WHAT HAS CHANGED LET ME -DEAL WITH THE PARTICULAR, I HAVE ABOUT 30 SINCE THEN, IS THAT WE HAVE AMAZINGLY MOVED HEAVEN AND EARTH TO REVIEW TENS OF THOUSANDS OF DOCUMENTS, THAT INVOLVED HIRING ALMOST TWO DOZEN LAWYERS TO WORK 12 HOURS A DAY FOR SEVEN OR EIGHT DAYS. IT HAS BEEN AN ENORMOUS UNDERTAKING AND IN THAT REVIEW JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 PROCESS HUNDREDS AND HUNDREDS AND HUNDREDS OF HOURS OF REVIEW WE DISCOVERED THREE. THE COURT: MOST OBVIOUS. MR. PUGNO: CERTAINLY. WITH RESPECT TO MR. CRISWELL, I'LL ADDRESS THE FIRST THREE. ADDRESS MR. CRISWELL FIRST, HE SEEMS THE WE'VE DISCOVERED THAT HE PERSONALLY WAS INCLUDED IN THE VAST MAJORITY OF COMMUNICATIONS, THROUGH ALL THE STEPS OF THE MOST SENSITIVE INTERNAL DECISION MAKING WITH REGARD TO FORMULATION OF STRATEGY AND MESSAGES. PARTICULARLY COMING UP THE CIRCULATION OF INITIAL CONCEPTS, THE PREPARATION OF TEST ADS TO SHOW TO FOCUS GROUPS. HE ATTENDED THE FOCUS GROUP WHERE THEY WERE TESTED WITH VOTERS. HE PARTICIPATED IN THE POST FOCUS GROUP ANALYSIS AND DISCUSSION. HE WAS GIVEN DRAFT SCRIPTS OF VIRTUALLY ALL THE ADVERTISEMENTS. AND AS YOU CAN SEE FROM THE IN CAMERA INSPECTION, AND I'M HOPING THAT THE COURT HAS THE EXHIBIT A, MR. CRISWELL IS AN ADDRESSEE ON THESE E-MAILS. THE COURT: THAT'S NOT THE TEST. COPYING ON AN E-MAIL CORE OR EVEN ADDRESSEE IN THE E-MAIL, HAS TO BE A CORE GROUP. IS ONE OF THE ADJECTIVES ABOUT THE GROUP, OTHERS IS ENGAGED IN THE FORMULATION OF STRATEGY AND MESSAGING. THIS: MR. CRISWELL IS NOT UNKNOWN COMMODITY. YOU HAVE AND MY POINT IS PEOPLE INVOLVED IN THE CAMPAIGN WHO ARE ENGAGED IN WITH COUNSEL JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 IN PREPARING THIS TRIAL FOR THE LAST 90 DAYS. HOW IS IT THAT NOBODY ACTUALLY KNEW IN THE TWO PREVIOUS DECLARATIONS ABOUT MR. CRISWELL'S ROLE IN THE CAMPAIGN? MR. PUGNO: WE ACTUALLY DID, THAT IS WHY WE SUBMITTED HIS COMPANY MARKETING. THE COURT: I UNDERSTAND THAT, YOU DIDN'T JUSTIFY IT. I ALREADY RULED ON THE BASIS, IT'S THE CHANGE THAT MATTERS. IT'S THE CHANGE THAT MATTERS. NOW, YOU'RE TRYING TO SAY I GOT NEW INFORMATION, YOUR HONOR, THAT I COULDN'T REASONABLY HAVE HAD BEFORE. MR. PUGNO: WHAT THE DIFFERENCE, IS THAT AT THE TIME OF THE HEARING THE PLAINTIFFS BROUGHT IN A DECLARATION FROM A MR. CRISWELL, WHERE IN HIS DECLARATION SPEAKING FOR THE COMPANY, HE SAID THAT THE COMPANY, AND HIS DECLARATION HE NEVER SAID I DID NOT PARTICIPATE, HE SAID MCSI. THE COURT: IS THERE EVIDENCE HE WAS DOING ANYTHING OTHER THAN, AS FAR AS WITH MCSI? MR. PUGNO: THE COURT: I DON'T KNOW, YOUR HONOR. THAT MEANS THERE IS NO EVIDENCE. IF YOU CAN'T SHOW IT, THEN THERE'S NO EVIDENCE OF IT. MR. PUGNO: BUT THE -- YOUR HONOR HAD SAID WE COULD PUT FORTH ENTITIES AND THEIR EMPLOYEES AND THEIR ASSISTANTS. SO WE'RE NOT COMING BACK ASKING MCSI EMPLOYEES AND ASSISTANTS BE INCLUDED, WHAT WE ARE SAYING, IS THAT IN CONTRAST TO THE EVIDENCE THAT THE PLAINTIFFS BROUGHT AT THAT HEARING, JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 UPON UNDERTAKING THIS REVIEW OF TENS OF THOUSANDS OF DOCUMENTS, WE DISCOVERED MANY DOCUMENTS WHERE THERE ARE -- AND WE'VE SUBMITTED COPIES IN CAMERA, WHERE THAT CONTAINED THE MOST PRIVATE AND THE MOST INTERNAL AND THE MOST SENSITIVE DOCUMENTS WITH REGARD TO HOW WE DECIDED WHAT TO SAY AND WHEN TO SAY IT. THERE'S JUST ABSOLUTELY NO -- THE EXAMPLES INCLUDE DRAFT SCRIPTS AND ENTIRE ANALYSIS OF EVERY ARGUMENT THAT WE CONSIDERED, HOW IT TESTED IN THE FOCUS GROUPS, HOW IT COULD BE CHANGED. THE COURT: MR. PUGNO: YOUR JUST WETTING HIS APPETITE. I'M SORRY, I PROBABLY SAID TOO MUCH, BUT HERE'S THE WHOLE POINT. THE COURT: YOU THINK THAT ANYBODY COPIED ON THAT MUST BE PART OF THE CORE GROUP? MR. PUGNO: THE COURT: WE'RE SAYING IT'S EVIDENCE. HE CLAIMS THAT HE WAS NOT INVOLVED IN THE FORMULATION OF MESSAGING MESSAGES, YOU'RE SAYING LOOK AT ALL THIS EVIDENCE THAT HE WAS. MR. PUGNO: HE'S NOT A PARTY AND WE'RE NOT ABLE TO SPEAK FOR HIM, BUT WHAT WE ARE ABLE TO SAY, THE PRENTICE DECLARATION SHOWS HE ATTENDED THESE FOCUS GROUPS AND HE WAS ENGAGED IN THE BACK AND FORTH COMMUNICATION AMONG CORE GROUP OF PEOPLE OVER WHAT -THE COURT: ENGAGED BY THAT DO YOU MEAN, DID HE SAY THINGS THAT ARE INCLUDED IN THESE? JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 SO HE FORMULATED THE STRATEGY, IT SEEMS UNLIKELY, IN LIGHT OF HIS DECLARATION, THAT DID NOT HAPPEN. MR. PUGNO: WELL, LET'S -- I THINK THERE ARE. IN FACT, WE DO HAVE COMMUNICATIONS FROM MR. CRISWELL IN RESPONSE TO THESE, BUT LET ME JUST LOOK AT A HIGHER LEVEL, ACTUALLY, BROADER PICTURE. AND THAT IS, THAT IF MR. CRISWELL'S INVOLVEMENT MAKES THESE DOCUMENTS NOT PROTECTED, THEN THE FIRST AMENDMENT PRIVILEGE ESSENTIALLY HAS BEEN COMPLETELY ABROGATED. BECAUSE THERE IS NO MORE CORE INTERNAL DISCUSSION IN THIS CAMPAIGN THEN THESE. AND IF HE WAS PRESENT AND PARTICIPATED AND WAS GIVEN A FRONT ROW SEAT AND WAS INCLUDED IN THE DISTRIBUTION LIST OF DRAFTS FOR COMMENTS AND DISCUSSION, IF HE'S NOT INCLUDED IN THAT GROUP AND IF HE'S SEEN AS AN OUTSIDER, THEN THERE IS ESSENTIALLY NOTHING THAT REMAINS PRIVILEGED. BECAUSE HE WAS COPIED ON VIRTUALLY ALL THESE. CORE, ABSOLUTE CORE. THE HERE ARE SCRIPTS OF ALL OF THE ADS WE'RE CONSIDERING, GIVE US YOUR FEEDBACK, THAT IS ENGAGED IN THE FORMULATION. THE COURT: OF COURSE, IT IS. YOUR ARGUMENT FOR, YOU MAY REGRET MAKING IT, JUST WETS THE OTHER SIDE'S APPETITE AGAIN, BUT IT PROVES TOO MUCH. THAT MEANS, WHOEVER WAS GIVEN A SCRIPT TO LOOK AT THEY ARE PART OF THE CORE GROUP, RESPONSIBLE FOR FORMULATION, JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 ENGAGED IN THE FORMULATION OF STRATEGY AND MESSAGING, ACTION THAT PROVES TOO MUCH. WE'RE APPLYING A NINTH CIRCUIT STANDARD. WE'RE NOT -- WE'RE NOT -- YOU MAY HAVE YOUR OWN VIEWS ABOUT THE SCOPE OF THE FIRST AMENDMENT PRIVILEGE, THOSE ARE INTERESTING TO ME, BUT NOT PARTICULARLY RELEVANT. DOWN. SO I HEARD ENOUGH ON MR. CRISWELL, UNFORTUNATELY, NEEDS TO BE RESOLVED RIGHT AWAY. TO RECONSIDER WITH MR. CRISWELL. FIRST, THERE'S NO REASONABLE BASIS ON WHICH YOU DIDN'T BRING THIS MATTER TO THE ATTENTION OF THE COURT BEFORE. MR. CRISWELL HAS BEEN LITIGATED ABOUT, AT LEAST, TWICE NOW. AND SECOND, THE EVIDENCE, IN ANY EVENT, IN PRENTICE'S NEWEST DECLARATION DOES NOT MAKE HIM PART OF THE CORE GROUP. SO LET'S GO ONTO THE OTHER THREE, I THINK, ARE SLIGHTLY MORE DIFFICULT. TIME. THE ONE ON WHICH I THOUGHT YOU HAD THE BEST ARGUMENT, ACTUALLY, WAS DOE. AND AS REFLECTED IN THE REDACTED AND I WANT TO TAKE THEM ONE AT A I'M GOING TO DENY THE MOTION THE QUESTION IS, WHAT THE CIRCUIT SET DECLARATION DOE IS PROFESSIONAL OPINION RESEARCH CONSULTANT HIRED BY PROTECTMARRIAGE.COM TO CONDUCT FOCUS GROUP AND OTHER VOTER OPINION RESEARCH, WHICH WERE ESSENTIAL PARTS OF THE INTERNAL FORMULATION OF THE CAMPAIGN STRATEGY AND MESSAGING. AND MY QUESTION FOR THE PLAINTIFFS, ISN'T THAT EXACTLY JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THE KIND OF PERSON THAT I PREVIOUSLY HELD WAS PART OF THE CORE GROUP? AND WHY SHOULDN'T I INCLUDE -- I DON'T KNOW, MR. OR MS. DOE IN THE CORE GROUP? MR. MC GILL: FOR TWO REASONS, YOUR HONOR. FIRST, THIS IS MANIFESTLY NOT A CASE OF EXCUSABLE NEGLECT ON THE PART OF THE DEFENDANT INTERVENORS. THEY FILED THIS MOTION OR THEY ALERTED US TO THIS MOTION 53 MINUTES BEFORE THEIR PRODUCTION DEADLINE. IF THEY HAD FILED THE MOTION -- IF THIS HAD -- IF THIS MOTION HAD BEEN FILED IN THE IMMEDIATE AFTERMATH OF YOUR JANUARY 8TH ORDER IT MIGHT BE BELIEVABLE THAT THIS OPINION RESEARCH CONSULTANT WAS PART OF THEIR CORE GROUP. SAID ON JANUARY 9TH WE FORGOT TO ADD MR. DOE. BUT THEY WAITED UNTIL JANUARY 17TH, HOW CAN IT BE THAT THIS PERSON IS PART OF THEIR CORE GROUP WHEN IT DIDN'T EVEN OCCUR TO THEM TO ALERT THE COURT'S ATTENTION THAT HE MIGHT BE A PART OF THE CORE GROUP UNTIL 53 MINUTES BEFORE THE PRODUCTION DEADLINE? THE COURT: WHAT THEY'LL SAY IN RESPONSE, I'D LIKE TO IF THEY HAD HEAR YOUR THOUGHTS ON IT, IT'S THE NATURE OF THE CAMPAIGN THEY WERE RUNNING. IS THAT IT'S A DISPERSED GROUP OF PEOPLE, OVER A LONG PERIOD OF TIME AND, THEREFORE, NOT SURPRISING THAT A CONSULTANT SLIPPED THROUGH THE CRACKS. THEY HAVE DOZENS OF CONSULTANTS. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 MR. MC GILL: I WOULD RESPOND TO THAT, YOUR HONOR, TO SAY THAT THE NINTH CIRCUIT'S PRIVILEGE DOES NOT EMBRACE EVERY SINGLE PERSON WHO TOUCHED UPON THE ISSUES OF CAMPAIGN MESSAGING AND STRATEGY. IT EMBRACES UPON THE CORE GROUP. AND THE VERY NATURE OF YOUR STATEMENT THAT THEY MIGHT HAVE BEEN DISPERSED AND ONLY DID A LITTLE BIT HERE OR A LITTLE BIT THERE, MEANS THEY'RE NOT PART OF THE CORE GROUP. I WOULD ADD, THAT IT WOULD SEEM, JUST BASED ON MY KNOWLEDGE OF THEIR PRIVILEGE LOG, THAT IF THEY'RE WITHHOLDING 97 DOCUMENTS, I WOULD WAGER 80 OR MORE OF THOSE RELATE TO MR. CRISWELL. THE VERY FACT WE'RE LIKELY TALKING ABOUT LESS THAN 20 DOCUMENTS HERE, AGAIN, ILLUSTRATE TO ME THESE ARE NOT MEMBERS OF THE CORE GROUP. AND MR. PUGNO CAN TELL US EXACTLY HOW MANY DOCUMENTS RELATE ONLY TO MR. DOE, BUT IT CANNOT BE THAT SOMEBODY WHO, THAT IS ONLY MENTIONED ON A HANDFUL OF DOCUMENTS, WAS PART OF THE CORE GROUP, RESPONSIBLE FOR THE FORMULATION OF CAMPAIGN MESSAGING AND STRATEGY. MOREOVER, I WOULD JUST -- I HAVE TO POINT TO MR. PRENTICE'S DECLARATION HERE, WHERE HE DOESN'T SAY, HE JUST DOESN'T SAY HE WAS RESPONSIBLE FOR THE FORMULATION OF CAMPAIGN STRATEGY AND MESSAGING. THE COURT: IT'S NOT QUITE THE TEST, IS IT CORE GROUP SO I DON'T -- MY OF PERSONS ENGAGED IN THE FORMULATION. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 RECOLLECTION OF THE CIRCUIT'S DECISION DOESN'T USE THE WORD RESPONSIBILITY. MR. MC GILL: THE COURT: I THINK, THAT'S RIGHT. SLIGHTLY DIFFERENT. I THINK YOUR HONOR HAS STATED IT HE SAYS MR. MC GILL: CORRECTLY, BUT LET'S LOOK AT WHAT MR. PRENTICE SAYS. HE WAS HIRED TO CONDUCT FOCUS GROUPS AND OTHER VOTER OPINION RESEARCH, WHICH ARE ESSENTIAL PARTS OF FORMULATION OF STRATEGY AND MESSAGING. DOESN'T SAY THAT MR. DOE WAS RESPONSIBLE FOR, ENGAGED IN THE FORMULATION OF CAMPAIGN STRATEGY AND MESSAGING. COULD HAVE SAID THAT. HE HE COULD HAVE JUST TAKEN THE WORDS FROM THERE'S SOME CAREFUL WORDSMITHING THE NINTH CIRCUIT OPINION. GOING ON HERE. THE COURT: SO LET ME GIVE YOU A HYPOTHETICAL. THEY HAVE ONE CAMPAIGN CONSULTANT, THE CAMPAIGN CONSULTANT IS A PROFESSIONAL RESEARCH CONSULTANT. WHAT THAT OPINION RESEARCH CONSULTANT DOES IS CONDUCT FOCUS GROUPS AND VOTER OPINION RESEARCH, AND THEN REPORTS ON THAT RESEARCH IN MEETINGS IN WHICH IT'S DECIDED WHAT THE MESSAGE IS GOING TO BE. MR. MC GILL: YES, FOR TWO REASONS. IS THAT PERSON PART OF THE CORE GROUP? I WOULD SAY, UNDER YOUR HYPOTHETICAL, ONE, YOU IDENTIFIED THE FACT THIS PERSON IS THE ONLY OUTSIDE RESEARCH CONSULTANT. TWO, WHICH BY -- ALMOST BY DEFINITION MAKES HIM PART JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 OF A CORE. TWO, AS YOU'VE -- IN YOUR HYPOTHETICAL YOU STATED HE WAS SEEMINGLY INVOLVED IN THE DEVELOPMENT OF CAMPAIGN STRATEGY AND MESSAGING, AND THAT IS NOT WHAT MR. PRENTICE HAS SAID HERE. BUT, I THINK, THE MORE IMPORTANT POINT, YOUR HONOR, IS THAT THE REQUIREMENTS FOR A MOTION FOR RECONSIDERATION HERE ARE SIMPLY NOT MET. THIS IS NOT A CASE WHERE THE JANUARY -- WHERE IT OCCURRED TO THEM ON JANUARY 9 OR 10 THAT THEY HAD INADVERTENTLY OMITTED SOMEBODY. THEY WAITED UNTIL THEY SAW WHAT ARE LIKELY SOME DOCUMENTS THAT THEY REALLY DO NOT WANT TO BE INTRODUCED INTO EVIDENCE, AND DECIDED THAT THIS PERSON ALSO NEEDED TO BE PART OF THE CORE GROUP ON JANUARY 17TH, 53 MINUTES BEFORE THE PRODUCTION DEADLINE. THE COURT: MR. PUGNO: OKAY. COUNSEL. YOUR HONOR, WE'VE -- WE HAVE MOVED AS RAPIDLY AS WE POSSIBLY COULD TO GET TO THIS POINT. THE COURT: BUT HERE'S THE PROBLEM THAT YOU FACE. ALL OF YOUR ARGUMENTS ABOUT WE ONLY HAD TWO DAYS OR WE ONLY HAD THREE DAYS ARE NO LONGER APPLICABLE. THIS MOTION, THIS DECLARATION WAS ACTUALLY FILED ON THE 18TH OF THIS MONTH, THAT'S 14 DAYS AFTER THE CIRCUIT'S OPINION AND IT IS ALMOST -- AND IT IS 14 DAYS, BUT 10 DAYS OR 11 DAYS AFTER THE ORIGINAL PRENTICE DECLARATION. IT IS -- THE POINT THAT COUNSEL MAKES IS THAT YOU HAVE JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 NOT BEEN DILIGENT WITH RESPECT TO THAT MATTER. IS AT ISSUE. YOU KNOW THIS YOU'RE DOING THE REVIEW OF MR. WIRTHLIN, FOR EXAMPLE, IS NOT SOMEBODY UNKNOWN, YOU USED HIM IN THE TRIAL. VIDEOTAPE OF HIM THAT WAS INTRODUCED IN THE TRIAL. I'M NOT PAYING THAT MUCH ATTENTION TO THE TRIAL, BUT I GET SNIPPETS. THE POINT THAT IS BEING MADE, IS YOU CAN'T SAY THERE'S A THAT YOU'RE BEING DILIGENT, IF YOU HAD MORE THAN -- YOU'VE HAD TWO WEEKS FROM -- YOU WAIT TWO WEEKS FROM THE OPINION TO BRING SOMETHING TO THE COURT'S ATTENTION, ON PEOPLE THAT YOU KNEW ABOUT LONG BEFORE THAT TWO WEEKS WAS UP AND WAITED UNTIL THE PLAINTIFF'S CASE WAS LARGELY IN, IT SEEMS TO ME. MR. PUGNO: I'D LOVE TO ADDRESS THAT, IF I COULD. THE MOTION WAS FILED ON THE 18TH BECAUSE THE ECF SYSTEM WAS DOWN OVER THE WEEKEND. WE SERVED IT ON THE 17TH. THE DECLARATION WAS SIGNED THE -- LATE IN THE NIGHT BEFORE, BECAUSE WE WERE UNDER A BREAKNECK PACE TO TRY AND GET THROUGH THESE DOCUMENTS. AND IT IS, ACTUALLY, THE REVIEW OF THE DOCUMENTS THAT BROUGHT THIS NAME FORWARD, THAT WE HAD FORGOTTEN HE WAS USED, WAS NOT USED THROUGHOUT THE ENTIRE CAMPAIGN. NOT A NAME THAT IMMEDIATELY CAME TO MIND, BUT HE WAS WITH RESPECT TO A COUPLE OF THE FOCUS GROUPS THAT WERE CONDUCTED, HIRED TO CONDUCT THOSE AND DID SO, AND DID SOME RESEARCH FOR US AND THE NAME CAME OUT DURING. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 IN OTHER WORDS, WE'RE REVIEWING TENS OF THOUSANDS OF DOCUMENTS AND THE FIRST REVIEW -- WELL, I WON'T GET INTO THE REVIEW PROCESS, BUT YOU START TO SEE INFORMATION THAT YOU DON'T REMEMBER FROM A YEAR AND A HALF AGO. AND AS WE SEE IT WE SET IT ASIDE AND WE THINK WE MIGHT END UP WITH A COUPLE OF NAMES WE HAD OVERLOOKED AND THAT WE WOULD BRING THAT TOGETHER AS A SINGLE MOTION. THE COURT: OKAY. YOU JUST OPENED THE DOOR AND I'M WHEN DID YOU FIRST SEE MR. DOE'S GOING TO STEP THROUGH IT. NAME? MR. PUGNO: YOUR HONOR. THE COURT: I DON'T REMEMBER WHAT POINT OF THE WEEK, IF YOU DECIDED MY ORDER WAS THE 8TH, FOR EXAMPLE, IF YOU LEARNED ABOUT IT ON THE 9TH OR THE 10TH AND YOU WAITED UNTIL THE 17TH TO FILE THIS MOTION, I WOULD CALL THAT AN INTERESTING FACT AND ONE THAT MIGHT BE LACK OF DILIGENCE. MR. PUGNO: I'D BE HAPPY TO ADDRESS THAT. FIRST OF ALL, WE ARE IN TRIAL WHILE THIS IS GOING ON. I MADE THE JUDGMENT CALL AS GENERAL COUNSEL THAT RATHER THAN EVERY TIME A NAME POPPED UP WE GO AND FILE MOTIONS AND MOTIONS TO SEAL AND SUBMIT IN CAMERA SUBMISSIONS, THAT WE COLLECT THE TWO OR THREE. AND BY THE WAY -THE COURT: ALMOST OVER? YOU WAIT UNTIL THE PLAINTIFF'S CASE IS YOU UNDERSTAND, TURN BACK ON YOU. ABSOLUTELY NOT. MR. PUGNO: JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THE COURT: WHY SHOULDN'T I TAKE THAT INTO ACCOUNT, THOUGH, EVEN THOUGH I'M SURE YOU DID IT FOR THE BEST OF REASONS, YOU WANTED TO NOT BURDEN THE COURT WITH MULTIPLE APPLICATION OR YOUR STAFF. CAN'T I TAKE INTO ACCOUNT THAT YOU'VE HAD A WEEK DURING WHICH TIME TIME HAS BEEN PASSING AT A BREAKNECK PACE, AS YOU SAY, THE TRIAL BEEN PASSING AND THE PLAINTIFFS ARE SEVERELY PREJUDICED EVEN IN ADDRESSING THIS ISSUE. MR. PUGNO: WE WERE -- OUR FIRST PRIORITY WAS TO COMPLY WITH THE ORDER TO GET EVERYTHING IN BY NOON SUNDAY, AND IT WAS LITERALLY AROUND THE CLOCK ORDEAL FOR A FULL WEEK, AND THE WAY THE TECHNOLOGY WORKS WE HAD TO FINISH OUR REVIEW, SO THAT IT COULD BE UPLOADED TO THE SYSTEM. SO MANY DOCUMENTS IT'S NOT EVEN POSSIBLE TO PRODUCE, WE GOT IT UPLOADED TO A SYSTEM, THEY CAN DOWNLOAD IT, WE HAD TO DO THAT BY SATURDAY AFTERNOON FOR THE COMPUTER SYSTEM TO PRODUCE IT ON SUNDAY. SO WE HAD TO GET THAT DONE FIRST AND THEN SATURDAY AFTERNOON TURN TO DRAFTING THE DECLARATIONS, AND DRAFTING THE MOTION AND DRAFTING THE MOTIONS TO SEAL. IF WE HAD STOPPED DOING THE DOCUMENT REVIEW TO WRITE MOTIONS ALL WEEK LONG WE MAY NOT HAVE MADE THE PRODUCTION DEADLINE THAT THE COURT ESTABLISHED OF SUNDAY. IT SIMPLY A MATTER OF RESOURCE ALLOCATION, IT'S ASTONISHING WE GOT THROUGH THIS. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THE COURT: MR. PUGNO: I KNEW YOU'D DO IT. WELL, IT WAS EXTRAORDINARY EXPENSE AND MANY PEOPLE DID NOT SLEEP ALL WEEK LONG IN ORDER TO GET THIS ACCOMPLISHED. AND THE DEADLINE WAS TO GET THE REVIEW DONE, THE FIRST REVIEW DONE BY SATURDAY AFTERNOON, SO THAT THE COMPUTER SYSTEM COULD PRODUCE IT BY SUNDAY AT NOON. AND THEN THE MOMENT THAT WAS DONE WE BEGAN DRAFTING THE DECLARATIONS AND THE MOTION. THAT'S ALL I DID, SAY WE'VE DONE ABSOLUTELY EVERYTHING POSSIBLE. AND WE WERE ALSO, BY THE WAY, YOUR HONOR, TRYING TO, IF THERE'S, SAY, A SINGLE DOCUMENT, A PERSON THAT POPS UP, AND IF WE CAN DETERMINE LATER IN THE WEEK THAT IT'S BETTER TO JUST GIVE UP THE E-MAIL THEN TO GO THROUGH ALL THE BURDEN OF BRINGING A MOTION LIKE THIS, THAT WE COULD SET IT ASIDE AND MAKE A JUDGMENT CALL OR ARE WE WILLING TO FIGHT THIS BATTLE OR LET IT GO. THAT WAS A VERY REASONABLE BASIS TO AT, I DON'T KNOW, TUESDAY, WEDNESDAY, THURSDAY, WHENEVER IT WAS, WHENEVER THESE NAMES POPPED UP, TO SAY, YOU KNOW WHAT, WE'RE GOING TO JUST HOLD THESE, FINISH GETTING THROUGH THE REST OF THE DOCUMENTS WE'RE UNDER ORDER TO GET THROUGH BY SUNDAY, THEN FILE THE MOTION AT THE VERY EARLIEST OPPORTUNITY. WE HAD TO CONTACT MR. PRENTICE ON A SATURDAY NIGHT AND GET HIM TO A PLACE TO SIGN THE DECLARATION, JUST SO WE CAN GET IT FILED IN THE MORNING. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 WE DID ABSOLUTE EVERYTHING WE POSSIBLY COULD, WE FILED THIS, WE SERVED IT AS SOON AS WE COULD, WE EVEN SERVED IT AND SAID WE HAVEN'T HAD TIME TO DRAFT THE MOTIONS TO SEAL YET, BUT THEY'RE COMING AND WE WANT TO LET YOU KNOW THEY'LL COME THIS AFTERNOON. WE DID EVERYTHING WE ABSOLUTELY POSSIBLY COULD, SO THAT'S THAT. THE COURT: OKAY. MAKE TWO QUICK POINTS IN RESPONSE. THAT MR. MC GILL: THE NOTION THAT WE'RE TOO BUSY TO STOP AND FILE A MOTION IS COMPLETELY BELIED BY THEIR VERY EXPEDITIOUS TRIP TO THE UNITED STATES SUPREME COURT ON THE CAMERAS ISSUES. WHEN IT'S IMPORTANT TO THEM THEY FIND THE TIME TO FILE A MOTION. THE COURT: I MUST TELL YOU I DON'T PAY ANY ATTENTION TO THE NOTION THAT THEY DIDN'T -- WEREN'T ABLE TO FILE A MOTION. I DON'T PAY ANY ATTENTION TO IT, ACTUALLY, BECAUSE I'M ON THE CASE AND I'M SUPPOSED TO KEEP TRACK OF IT. I WATCH THE DOCKET SHEET EVERYDAY. YOU FILED MANY MOTIONS THEN AND NOW YOU FILED MOTION YOU THINK ARE IMPORTANT, YOU DON'T THINK THEY'RE IMPORTANT. THE ONLY POINT YOU MADE WHICH IS WORTH CONSIDERING IS IT MAYBE THAT WHILE YOUR FIRST REACTION TO A DOCUMENT WITH A PERSON'S NAME ON IT IS WITHHOLD, YOU MAY RECONSIDER THAT DURING THE COURSE OF A COUPLE DAYS AND THAT'S A NORMAL DOCUMENT REVIEW PROCESS AND I APPRECIATE THAT. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 BUT LET'S -- I WANT TO TALK ABOUT SOMEONE OTHER THAN DOE, LET'S TALK ABOUT THE OTHER TWO PEOPLE. WHAT ABOUT -WHY WHAT'S THE PLAINTIFF'S VIEW ON PETERSON AND WIRTHLIN? AREN'T THEY -MR. MC GILL: CAN I MAKE ONE MORE POINT, I THINK, WILL BE HELPFUL TO THE COURT? THESE PEOPLE APPEARED ON THEIR PRIVILEGE LOG WHICH WAS PRODUCED ON DECEMBER 16TH. THE COURT: WE DON'T KNOW WHETHER DOE WAS. SO PETERSON AND WIRTHLIN TELL ME ABOUT WHY YOU VIEW THEM NOT PART OF THE CORE GROUP OR HAVING WAITED TOO LONG OR WHATEVER YOUR ARGUMENT IS? MR. MC GILL: ONE, THERE'S NO EXCUSABLE NEGLECT NECESSARY, PETERSON FOR SURE APPEARED ON THE PRIVILEGE LOG PRODUCED IN DECEMBER AND, I BELIEVE, WIRTHLIN DID AS WELL. MOREOVER WIRTHLIN CAN'T CONCEIVABLY COME WITHIN ANY DEFINITION OF THE CORE GROUP. THE MAN IS A RESIDENT OF MASSACHUSETTS, HIS ONLY INVOLVEMENT IN THE CAMPAIGN SO FAR AS DISCLOSED IN THE DECLARATION OF MR. PRENTICE IS THAT HE APPEARED IN THE AD THAT HAS NOW BEEN INTRODUCED INTO EVIDENCE BY THE DEFENDANT INTERVENORS. MOREOVER EVEN IF THEY DID COME WITHIN ANY DEFINITION OF THE CORE GROUP, THE FACT THAT THE DEFENDANT INTERVENORS HAVE PUT INTO EVIDENCE THE ADS INVOLVING THESE PEOPLE MEANS THAT COMMUNICATIONS RELATING TO THOSE ADS WERE -- ARE NOW HIGHLY JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 RELEVANT AND -THE COURT: YOU SAID THAT IN YOUR BRIEF, AND I'M SORRY TO INTERRUPT, WE HAVE VERY LITTLE TIME, SO LET'S ADDRESS THAT. DOESN'T THAT PROVE TOO MUCH? I MEAN, THE RELEVANCE STANDARD THE CIRCUIT WAS DEALING WITH WAS THAT COMMUNICATIONS TO VOTERS WERE GOING TO BE IRRELEVANT OR, AT LEAST, DEEMED RELEVANT BY THE JUDGE, DISTRICT JUDGE, THEY WEREN'T FIGHTING THAT. NONETHELESS, NONETHELESS, FORMULATION OF THOSE MESSAGES WAS HELD TO BE -- WITHIN THE CORE GROUP WAS HELD TO BE WITHIN THE FIRST AMENDMENT PRIVILEGE. YOU DON'T MEET THE STANDARD FOR EXTRAORDINARY, STANDARD SET DOWN BY THE CIRCUIT BY JUST SAYING IT'S RELEVANT TO A MESSAGE TO THE VOTERS. MR. MC GILL: SPECIFICALLY WHAT THE DEFENDANT INTERVENORS HAVE PUT INTO ISSUE, WHICH IS THE MEANING OF THE ADS AND SPECIFICALLY THE MEANING OF THE PROTECT OUR CHILDREN CATCH LINE. IF THERE ARE COMMUNICATIONS THAT GO TO THAT, I THINK, THEY ARE NOW HIGHLY RELEVANT BECAUSE THE DEFENDANT INTERVENORS HAVE PUT THAT ISSUE IN PLAY. BUT, I THINK, EASIER WAY TO GO HERE, YOUR HONOR, IS THE FACT THAT THESE -- THIS CANNOT CONCEIVABLY BE VIEWED AS A CASE OF EXCUSABLE NEGLECT. THE VERY FACT THAT MR. PUGNO HAS NOW ADMITTED THESE PEOPLE PLAYED SMALL ROLES IN THE CAMPAIGN, INCLUDING MR. DOE, JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 SMALL ROLES IN THE CAMPAIGN MEANS BY DEFINITION THEY ARE NOT PART OF THE CORE GROUP. IT DEFIES THE DEFINITION OF CORE GROUP TO INCLUDE EVERY PERSON WHO PLAYED A BIT PART. THE COURT: WIRTHLIN? WIRTHLIN YOU DESCRIBED SOMEWHAT, DO YOU KNOW ANYTHING ELSE OTHER THAN PETERSON APPEARED ON THE PRIVILEGE LOG IN DECEMBER? MR. MC GILL: I KNOW FOR THE FACT MR. PETERSON I'M TRYING TO CONFIRM RIGHT NOW SO WHAT DO YOU KNOW ABOUT PETERSON OR APPEARED ON THE PRIVILEGE LOG. WHETHER MR. WIRTHLIN DID. MR. PETERSON WAS -- IS, I BELIEVE, A LAW PROFESSOR AT PEPPERDINE WHO APPEARED IN A NUMBER OF YES ON 8 ADS, AND THE SAME THING HOLDS TRUE AS TO WIRTHLIN AS IT DOES TO MR. -PROFESSOR PETERSON. THAT THEY HAVE -- THE DEFENDANT INTERVENORS NOW BASICALLY PUT INTO ISSUE WHAT PROTECT OUR CHILDREN REALLY MEANS AND IF THERE ARE COMMUNICATIONS THAT GO TO THAT THEY ARE NOW HIGHLY RELEVANT. BUT MORE TO THE POINT THIS IS A MAN WHO APPEARED ON THE PRIVILEGE LOG. THEY KNEW ABOUT IT NO LATER THAN DECEMBER. THE FACT IT DIDN'T OCCUR TO THEM TO INCLUDE HIM ON JANUARY 7TH, ON A JANUARY 7TH DECLARATION CANNOT -- IT DEFIES BELIEF TO SAY THAT, WELL, WE CAN WAIT UNTIL JANUARY 17TH TO BRING THIS TO THE COURT'S ATTENTION. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THIS WAS, IT APPEARS IT WAS DESIGNED TO MAXIMIZE PREJUDICE TO THE PLAINTIFFS, NOT BECAUSE THEY SIMPLY FORGOT ABOUT HIM. THE COURT: MR. PUGNO: COUNSEL. WELL, YOUR HONOR, THE -- BOTH THESE INDIVIDUALS APPEARED IN STATE-WIDE TELEVISION ADS ON BEHALF OF THE CAMPAIGN. WE, OF COURSE, KNEW ABOUT THEM. WHEN WE WERE SITTING DOWN AND THINKING WHO WAS -- WHO ARE OUR CAMPAIGN OFFICIALS AND OUR CONSULTANTS AND OUR ADVISERS AND WHO WAS IN THE CORE GROUP, WE KNEW THEY WERE THERE, BUT DIDN'T OCCUR TO US THERE WOULD BE, IN THE REREVIEW THAT WE DID THE FOLLOWING WEEK COMMUNICATIONS, ACTUALLY TURNING WHAT MESSAGE THEY SHOULD -- WITH THEM WHAT MESSAGE THEY WOULD LIKE TO CONVEY AND WHAT THEY SHOULD SAY. IN OTHER WORDS, WE KNEW WE HAD COMMUNICATIONS SAYING SHOW UP AT THIS TIME AT THE STUDIO, THIS IS AN EXAMPLE, I DON'T KNOW FOR SURE. THE COURT: MR. PUGNO: SURE. BUT SAYING SHOW UP AT THIS TIME AT THE STUDIO, THAT'S NOT NECESSARILY A FORMULATION OF MESSAGE AND STRATEGY, BUT WE KNEW THEY EXISTED. BUT IN THE REVIEW WE FOUND DOCUMENTS COMMUNICATING WITH PROFESSOR PETERSON AND WITH MR. WIRTHLIN WHERE THERE IS AN EXCHANGE OF IDEAS OF WHAT SHOULD BE SAID IN THESE ADS, WHAT THEY WOULD LIKE TO SAY. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 AND, IN FACT, TO QUOTE THE NINTH CIRCUIT OPINION, SAYS IMPLICIT IN THE RIGHT OF ASSOCIATION IS THE RIGHT TO EXCHANGE IDEAS AND FORMULATE STRATEGY AND TO DO SO IN PRIVATE. E-MAILS THAT WE DISCOVERED -THE COURT: ONLY AMONG THE CORE GROUP. SO YOU'RE AND THE BEGGING THE QUESTION, THE QUESTION WHETHER THEY'RE PART OF THE CORE GROUP. MR. PUGNO: THE COURT: THEY HAVE TO BE. ANYONE EVER WHO GAVE AN OPINION TO THE CAMPAIGNS COUNSEL, FOR EXAMPLE, ABOUT WHAT SHOULD BE IN THE MESSAGING, THAT'S PART OF THE CORE GROUP? MR. PUGNO: ABSOLUTELY NOT. WE TURNED OVER TONS OF DOCUMENTS WITH LOTS OF SUGGESTIONS FROM PEOPLE OUT THERE ABOUT HOW THE CAMPAIGN SHOULD BE WRITTEN AND THEY WERE, THEY ALL BEEN PRODUCED AND THEY WERE NOT HELD BACK AS PRIVILEGED. WE'RE FOCUSING ON THE WORD ENGAGED. IF THERE WAS A BACK AND FORTH, AN EXCHANGE OF IDEAS AND A FORMULATION OF THE MESSAGE IN CONCERT WITH SOMEBODY, ESPECIALLY A MESSAGE THEY'RE GOING TO DELIVER ON TELEVISION, THAT HAS TO BE IN THE CORE. THE COURT: OKAY. YOUR HONOR, OF -I'VE GOT TO MR. MC GILL: THE COURT: I DON'T NEED TO HEAR ANYMORE. RULE ON THIS BECAUSE OF THE PRESS OF THE TRIAL. I THINK, THAT YOU BOTH HAD AN OPPORTUNITY TO MAKE YOUR POINTS AND SITTING HERE I'VE ALSO MANAGED TO READ THE PRENTICE DECLARATION IN JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 25 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 DETAIL AND HERE'S THE RULING AS FOLLOWS: AS TO -- AS WITH CRISWELL, WITH RESPECT TO PETERSON AND WIRTHLIN, THE COURT FINDS THAT THERE'S NO NEWLY DISCOVERED EVIDENCE OR CLEAR ERROR OR INTERVENING CHANGE IN THE LAW WHICH WOULD JUSTIFY THE GRANTING OF ITS MOTION. THERE IS NO REASONABLE BASIS FOR HAVING NOT BROUGHT THEM TO THE ATTENTION OF THE COURT EARLIER IN THE PREVIOUS -WHEN THE COURT PREVIOUSLY RULED ON THIS OR IN THE INTERVENING TIME BETWEEN THEN AND NOW. IN PARTICULAR I'LL NOTE MR. PETERSON WAS ON A PRIVILEGE LOG AND, IN ANY EVENT, WAS WELL-KNOWN TO THE CAMPAIGN HAVING DONE A PUBLISHED STATEWIDE TELEVISION AD ON THE CAMPAIGN. LIKEWISE MR. WIRTHLIN WAS INVOLVED IN THAT SECOND, NEITHER OF THOSE INDIVIDUALS ARE PART OF THE CORE GROUP ENGAGED IN FORMULATION OF STRATEGY AND MESSAGING. THEY WERE INDIVIDUALS WHO APPEARED ON CAMPAIGN ADS AND DID HAVE DISCUSSIONS WITH OTHERS ABOUT WHAT MIGHT BE IN THOSE PARTICULAR CAMPAIGN ADS THAT THEY WERE PARTICIPATING IN, BUT I DON'T THINK THAT'S MAKES THEM THE CORE GROUP. WITH RESPECT TO MR. DOE, I'M GOING TO FIND MR. DOE IS WITHIN THE CORE GROUP AND THAT THERE'S NO EVIDENCE BEFORE THE COURT TO CONTRADICT THE STATEMENTS OF MR. PRENTICE, THAT MR. DOE IS A PERSON WHO'S IDENTITY THEY COULDN'T REASONABLY HAVE FOUND BEFORE, THEY JUST REMEMBERED. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 26 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 PARTICULARLY, IT STRIKES THE COURT AS PARTICULARLY CREDIBLE ASSERTION IN LIGHT OF THE DESCRIPTION OF THEIR HEARING OF MR. DOE'S ROLE AS ONE OF MANY, MANY CAMPAIGN CONSULTANTS. SO WITH RESPECT TO MR. DOE I'LL GRANT THE MOTION. CAN AMEND TO ADD THAT. THREE. NOW, I WANT TO ORDER THE PRODUCTION OF THOSE DOCUMENTS. DOCUMENTS? MR. PUGNO: AS SOON AS I CAN MAKE THE PHONE CALL AND WHEN IS THE QUICKEST YOU CAN GET THROUGH THOSE '95 YOU I'LL DENY IT WITH RESPECT TO THE OTHER THE FOLKS THAT HAVE THEM CAN GET THEM MARKED ATTORNEY'S EYES ONLY. WE WILL CLAIM PROTECTION UNDER THE PROTECTIVE ORDER. THE COURT: MR. PUGNO: SOON AS WE CAN. THE COURT: WHAT'S THE TRIAL SCHEDULE TODAY? WE'RE IN TRIAL UNTIL 4:00 P.M. TODAY, WE AS YOU'RE ALLOWED TO CLAIM. WE'LL GET THEM MARKED AND GET THEM IN AS MR. MC GILL: WILL BE IN TRIAL TOMORROW, I WOULD ASK THE COURT ORDER THEY BE PRODUCED BY NO LATER THAN 5:00 P.M. THE COURT: OKAY. SO ORDERED. PRODUCE THE REMAINING DOCUMENTS BY 5:00 P.M. MR. PUGNO: THE COURT: CERTAINLY. AND, I THINK, THAT'S IT. IS THERE ANYTHING ELSE I'M SUPPOSED TO ADDRESS? MR. MC GILL: NO. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 27 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 THE COURT: OKAY. THANK YOU VERY MUCH. MR. MC GILL: THANK YOU. (PROCEEDINGS ADJOURNED.) JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 CERTIFICATE OF REPORTER I, THE UNDERSIGNED, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS. I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE OUTCOME OF THE CAUSE NAMED IN SAID CAPTION. THE FEE CHARGED AND THE PAGE FORMAT FOR THE TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL CONFERENCE. FURTHERMORE, I CERTIFY THE INVOICE DOES NOT CONTAIN CHARGES FOR THE SALARIED COURT REPORTER'S CERTIFICATION PAGE. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 8TH DAY OF FEBRUARY, 2010. /S/ JAMES YEOMANS ___________________________________ JAMES YEOMANS, CSR, RPR JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179