Perry et al v. Schwarzenegger et al

Filing 626

Transcript of Proceedings held on March 16, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, RMR, CRR, CSR, Telephone number 415-794-6659/Katherine_Sullivan@cand.uscourts.gov. 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 6/22/2010. (Sullivan, Katherine) (Filed on 3/24/2010)

Pages 1 - 68 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER 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 Tuesday March 16, 2010 TRANSCRIPT OF PROCEEDINGS Reported CSR Reported By: Katherine Powell Sullivan, CRR, CSR 5812 Official Reporter - U.S. District Court 2 APPEARANCES: For Plaintiffs: BY: GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 CHRISTOPHER D. DUSSEAULT, ESQUIRE GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, California 94105-2933 ENRIQUE A. MONAGAS, ESQUIRE CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY One Drive Carlton B. Goodlett Place San Francisco, California 94102-4682 MOLLIE M. LEE, DEPUTY CITY ATTORNEY STATE ATTORNEY GENERAL'S OFFICE 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 TAMAR PACHTER, DEPUTY ATTORNEY GENERAL COOPER & KIRK 1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 JESSE PANUCCIO, ESQUIRE ORRICK, HERRINGTON & SUTCLIFFE 405 Howard Street San Francisco, California 94105 STEPHEN V. BOMSE, ESQUIRE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm San Francisco, California 94111 ELIZABETH GILL, ESQUIRE REMCHO, JOHANSEN & PURCELL 201 Dolores Avenue San Francisco, California 94577 KARI KROGSENG, ESQUIRE BY: For PlaintiffIntervenor: BY: For Defendant Edmund G. Brown Jr.: BY: For DefendantIntervenors: BY: ACLU Foundation of Northern California: BY: BY: Californians Against Eliminating Basic Rights: BY: (APPEARANCES CONTINUED ON FOLLOWING PAGE) 3 APPEARANCES (CONTINUED): For Equality California: BY: FENWICK & WEST 555 California Street, 12th Floor San Francisco, California 94104 LAUREN WHITTEMORE, ESQUIRE FENWICK & WEST 801 California Street Mountain View, California LYNN PASAHOW, ESQUIRE 94041 BY: 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 THE CLERK: MARCH 16, 2010 PROCEEDINGS 10:33 A.M. Calling civil case 09-2292, Kristin Perry, et al. and the City and County of San Francisco versus Arnold Schwarzenegger, Prop 8 Official Proponents, et al. Counsel, come to the podium and state your appearances. MR. BOMSE: Good morning, Your Honor. Stephen Bomse, Orrick, Herrington & Sutcliffe, and Elizabeth Gill on behalf of the ACLU. THE COURT: MR. BOMSE: Very well. Good morning, Mr. Bomse. Good morning. Good morning, Your Honor. MS. WHITTEMORE: Lauren Whittemore and Lynn Pasahow from Fenwick & West, representing Equality California. THE COURT: Good morning, Ms. Whittemore. Good morning, Your Honor. MS. KROGSENG: Kari Krogseng, at Remcho, Johansen & Purcell, on behalf of Californians Against Eliminating Basic Rights. MR. DUSSEAULT: Good morning, Your Honor. Christopher Dusseault and Enrique Monagas, of Gibson, Dunn & Crutcher, on behalf of the plaintiffs. THE COURT: MS. LEE: Mr. Dusseault, good morning. Good morning, Your Honor. 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 of us. Deputy City Attorney Mollie Lee on behalf of plaintiff-intervenor City and County of San Francisco. THE COURT: Ms. Lee, good morning. Good morning, Your Honor. MR. PANUCCIO: Jesse Panuccio of Cooper & Kirk, on behalf of defendant-intervenors. THE COURT: Mr. Panuccio. Good morning, Your Honor. MS. PACHTER: Deputy Attorney General Tamar Pachter on behalf of the attorney general. THE COURT: Very well. with you, Mr. Bomse. MR. BOMSE: THE COURT: Thank you. I'm sure you know the standard that you Ms. Pachter. Let's begin this morning's discussion have to meet is clear error. MR. BOMSE: The standard which we have to meet is that an error of law was committed -THE COURT: MR. BOMSE: THE COURT: MR. BOMSE: And it is clear. I -And you recognize that? We -- I recognize the task that is ahead THE COURT: All right. Now, tell me, of course, what is the clear error the Magistrate committed? 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 required. MR. BOMSE: The Magistrate committed a clear error in his determination that this information is relevant to a sufficient degree to justify the burden that is being imposed. We view those matters as being interrelated. THE COURT: What have you submitted to establish a burden, other than what you contend was the burden before the magistrate? That is to say, as I read the papers that have been submitted, you've submitted nothing to establish that there is any burden imposed by the Magistrate's order. You made an argument before him that there was some level of burden. He then crafted a substantially narrower order. And you have not submitted anything with respect to the burden of complying with the Magistrate's order. MR. BOMSE: Your Honor, we did not believe that it was appropriate to submit additional materials in connection with these objections that go to that issue. We rest upon the materials that were submitted to the Magistrate Judge. THE COURT: But the issue is whether or not the Magistrate committed clear error. MR. BOMSE: THE COURT: That's correct. So you start with what the Magistrate And if that imposed an undue burden, then you have Do you not? And -- to establish that fact. MR. BOMSE: THE COURT: Yes. You haven't submitted anything. 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 MR. BOMSE: We have the record that was submitted I must -- before the Magistrate Judge. THE COURT: But the request that the Magistrate dealt with is different from the request that the Magistrate granted. MR. BOMSE: Well, the Court must assess the question But of burden based upon what Magistrate Judge Spero ordered. the record on which that is to be assessed is the record that is submitted. But I think that putting burden as an issue independent of relevance seems to me to be a fundamental mistake. As we've said, we believe that the two are quite closely related. Now, if one wants to focus solely on the question of burden, we have said what the burden will be under, essentially, the conditions that were specified by Magistrate Judge Spero, with the exception that he has relieved us of the obligation of providing a privilege log. THE COURT: He has done more than that. He has done quite a bit more than that. MR. BOMSE: Well, by -- by our lights, he has not. He has not done anything which is going to make the burden of review materially less than we anticipated that it would be when we appeared in front of him. One Court will, of course, make its own determination whether that burden is undue, because that is, after all, the 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 standard. And, in fact, I think that you could look at the question of burden in the context of many litigations and say this doesn't seem to be all that hugely burdensome compared to what is sometimes required. But I don't think that that's the right way to look at it, with all respect, Your Honor. start is with the game. worth the candle. And it's our position that the relevance here is either nonexistent or so attenuated that it cannot justify imposing what is under the Magistrate's more limited order a significant burden. We are talking about reviewing thousands upon thousands, tens of thousands of documents, to determine whether or not they satisfy the conditions of relevance. not an insubstantial burden. And that is I think the place to Then we find out whether that game is This is not something that can be It is something that is, in done with the push of a button. fact, quite substantial. Now, is that an appropriate burden to place upon these nonparties? Well, I think, as I say, we can't answer But that question without going to the question of relevance. as far as what -THE COURT: moment. MR. BOMSE: All right. Let's just talk about burden for a 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 ACLU. THE COURT: Before the Magistrate you said that there are approximately 61,000 potentially relevant communications stored in the Microsoft Outlook files. And then when simple search terms are applied -- these are, essentially, the search terms that the Magistrate required to be searched for -- the number reduced down to about 25,000 potentially responsive communications. MR. BOMSE: THE COURT: MR. BOMSE: Yes. Okay. That's correct. That is only as to the That is not as to our co-party objector Equality California. I believe that the burden that they believe that they would encounter is considerably more substantial. And, again, they have chosen to rest, as we do, upon the record that we submitted before Magistrate Judge Spero. rest upon -THE COURT: Well, how much is it going to cost and And we are happy to what is the number of responsive documents that would have to be reviewed in order to comply with the Magistrate's order? MR. BOMSE: I can speak to the ACLU. And it appears Ms. Gill, that it's 25,000, once you apply those search terms. who is actually the person responsible for evaluating this at the ground level, tells me that it's more. THE COURT: Well, but where is this -- this is not in 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 the record. You haven't submitted anything. Well, we'll -- we'll stand on what has MR. BOMSE: been submitted. And if you want to say it's 25,000, 25,000 I e-mails to look through manually is not a small group. mean -THE COURT: Those -MR. BOMSE: With a discreet number of search terms? Those are the documents that you end up Then you have to go and with after you apply the search terms. figure out which of those documents, document by document, is relevant within the standard that has been determined for what is a relevant document. That is, is it something that deals Is it something that involves with strategy and messaging? somebody who is not within the core group as has been defined? And that is a not insubstantial burden. THE COURT: MR. BOMSE: THE COURT: How much is it going to cost? (Gesturing.) Don't just throw up your hands. You have an opportunity to request costs, reimbursement. As I read the record, you haven't done so. We did, actually, suggest that the cost MR. BOMSE: of doing these searches be borne by the parties seeking the documents, as a way of ameliorating the costs. But the cost is largely in people hours here. And this will be done by people who will not be paid for doing it, 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 other than the salaries that they earn. diverted from other tasks. But they will be And that is a real cost. Now, again, I find of all of the issues that are here, while the question of burden is not insubstantial, I do not understand how it can be assessed other than by first determining whether there is something here which is worth pursuing. Now -THE COURT: Don't we have guidance from the Ninth Circuit on that subject? MR. BOMSE: THE COURT: Well, naturally -The Ninth Circuit, I must say, has taken But the last word clearly indicated two different positions. that the kinds of documents that are being sought here meet the standards of Rule 26, for discovery. And that's all we have to determine, at this point; isn't it? MR. BOMSE: THE COURT: MR. BOMSE: the same party. The Ninth Circuit did speak to this issue. We think I don't believe so. Why? Because this is not the same request to I -- it spoke in very clear terms to this issue, in its opinion, and not merely in Footnote 12 of its opinion. Although, I am certainly prepared to discuss with the Court, if you will indulge me, the terms of that footnote. 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 But before we even -THE COURT: Everything that's really the meat in that opinion is all in that footnote. MR. BOMSE: with Your Honor. The notion that we have a 36-page opinion and that the meat of the opinion is in a single footnote appended at the end, as if somehow the Court was saying just kidding, I think is a serious misreading of what the Ninth Circuit did and what it had in mind. But I wasn't ready to get to Footnote 12 or to the issue of privilege yet; although, that is a very important issue. I submit to the Court that we first have to determine I -- I could not more strongly disagree whether or not there is relevance here within the standards of Rule 26, sufficient to trigger the burden that will be required both of us and Equality California. And that is an issue as to which our opponents would simply gloss over by saying, Two sides of the same coin. sometimes, whether it's heads or tails matters. We are not the people who sought passage of this initiative. initiative. So the question that has to be asked is -- now, they would say that these documents (indicating) are irrelevant in a way that I'm not going to begin to argue because it's not my We are people who opposed the passage of this But, 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 role here to take issue with what Your Honor thinks are the issues in the case. But accepting those, the question is, do these documents that are being sought inform that inquiry in a meaningful way? THE COURT: The question is whether or not the Magistrate's order is clearly erroneous. MR. BOMSE: is clearly erroneous. Yes. And, as to that, we submit that it Because there is nothing that has been suggested on this record that indicates why these documents are going to inform an issue in this case. THE COURT: That is, why -- Let's talk about what really is at stake here, for your client. What is the prejudice to your client, other than burden? What is the prejudice of complying with the Magistrate's order, other than burden? You can't make a showing of the kind that was made in the civil rights cases, the NAACP cases. tried to make that kind of showing. MR. BOMSE: THE COURT: We've -The only showing you have attempted to You haven't even make is this showing of burden. MR. BOMSE: THE COURT: attempted -MR. BOMSE: I'm sorry? Again, Your Honor, with all respect -No chilling effects that you've 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 THE COURT: chilling effect. You haven't attempted to demonstrate any You haven't attempted to establish any threats, any reprisals that will be visited upon your client. You stake your entire argument on this notion of burden. MR. BOMSE: No. With all respect, again. I don't usually say no to a Court quite so categorically, and I apologize. THE COURT: MR. BOMSE: I don't know why you don't more often. Well, Your Honor, the -- the Ninth Circuit issued an opinion in this case. THE COURT: MR. BOMSE: Two opinions. Well, the opinion which is now operative, That opinion as we understand it, is the January 4 opinion. recognized, in quite sweeping language, a very broad First Amendment associational privilege for campaign speech. THE COURT: MR. BOMSE: Confined to a narrow group of people. We need to come to that. Defined in footnote -- limited in Footnote 12, in a small way. THE COURT: political campaign. MR. BOMSE: with the Court. If the footnote is properly read, I agree And appropriately so. This is a But I don't believe Magistrate Judge Spero read it properly at all. THE COURT: MR. BOMSE: Okay. How did he misread it? He misread it because he seized upon a 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 phrase appearing in a paragraph in that footnote which refers to a core group. But that's not the entirety of that paragraph, at all. What that paragraph is about is that, to be privileged, communications must be among the core group of people involved in strategy and messaging. THE COURT: MR. BOMSE: THE COURT: MR. BOMSE: THE COURT: MR. BOMSE: But then he -- You're talking about Footnote 12? I'm sorry? You're talking about Footnote 12? I'm talking about Footnote 12. All right. I have it. But then that footnote, in the same paragraph, then goes on to say, in the immediately ensuing sentence, the Court remanded to this Court because this Court is best acquainted with the structure of the Yes On 8 campaign, and, thus, can determine who -- and here I quote, should be included in the core group -- and the next words are the key -"in light of the First Amendment associational interests the privilege intended to protect." Now, I think that that is without attempting to define -- this is, after all, a footnote -- with any greater specificity a rather clear statement of what was expected to be done. That is, what was expected to be done was to figure out from the text of the 35 pages that have preceded it -- at 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 least in the slip opinion version -- what are the First Amendment associational interests that the privilege that the Court has just been defining in the text is intended to protect? And that's how you get to what the core group is. That's not, however, how Magistrate Judge Spero did it. He applied what I have -- what we have described as a talismanic type of test. Or, if you will, he has taken a compass and he has drawn a circle with certain dimensions; and you are either inside or you're outside. That's the wrong way to go about it, as a matter of law. You go about it, as I think the Ninth Circuit made clear That is, what is it in Footnote 12, in a functional sense. we're trying to do here? What we're trying to do here is protect the ability of campaigns not to be chilled, the right of people to associate for a common purpose. THE COURT: group of names. Who -- and I'm asking for a name or a Who did you request be included in the core group that Magistrate Spero left out? MR. BOMSE: The groups that are essentially defined in paragraphs 6 and 7 of the Kors supplemental declaration. Those are the Equality for All campaign members. THE COURT: MR. BOMSE: 6 and 7? Of the Kors supplemental declaration, 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 document 609. THE COURT: All right. Now, if I'm reading this correctly, these are not individuals associated with your client or with the Equality for California group. These are individuals who have an association with some other organization, or are just individuals. Is that correct? These are people who are involved with You're quite correct. That I haven't MR. BOMSE: Equality California. looked through to be sure that is a hundred percent true, but certainly that is, for the most part, the case that these were people with Equality for All. Now, unless one takes what we have called the silo approach to the definition of privilege -- which I suggest is entirely inconsistent with the body of the Ninth Circuit's opinion as well as with Footnote 12 in the Ninth Circuit's opinion -- you cannot draw the line that Magistrate Judge Spero has drawn. And, in fact, I think you can't do it reading most of his opinion, because he has said that, in his opinion -- I'm talking now about the opinion from which we now seek relief -that he credits the declaration of Mr. Kors, at least the one filed on February 22nd. He says it specifically, and I'm happy to refer the Court to where he says it. He then goes on, however, having done that -- because 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 what that ought to do is to get us what we asked for. THE COURT: MR. BOMSE: This is his -His March 5th order then goes on to say, at the bottom of page 10 and the top of page 11, that the March 3 declaration identifies the individual campaign members and staff, but makes no showing regarding those individuals' roles in the Equality for California campaign. THE COURT: MR. BOMSE: close enough to true. THE COURT: MR. BOMSE: THE COURT: Mr. Bomse? MR. BOMSE: No, no, no. What is the keyword there is And that's true; is it not? Let's assume that it's true because it's But it misses the point. Close enough to the truth? No. Is that the standard we're applying, the March 3rd declaration. Because what he misses is the declaration that he earlier said he credited, which is document 598, the original Kors' declaration, in which, as we have pointed out in our brief, we have described with I believe as much detail as with respect to the groups that are included in the core group, but the role of these particular groups were. So I don't know if he was intending to be careful. don't know if he simply missed the point. But he did not say I and he could not say -- because it will not withstand scrutiny -- that we have not, in document 598, discussed the 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 campaign staff and the campaign committee members. sense, he has simply erred. So, in that He has erred as an evidentiary matter and he has erred as a legal matter. And the reason he's erred as a legal matter, Your Honor, is because when you look at Footnote 12 and you look at the paragraph that he focuses on in full, where it talks about things -- where it talks about the definition of a core group in light of the purposes for which the privilege exists, you cannot justify what he said. THE COURT: Now -- Footnote 12 says: "Our holding is also limited to private internal communications regarding formulation of strategy and messages." MR. BOMSE: THE COURT: Yes. That's italicized. "It certainly does not apply to documents or messages conveyed to the electorate at large, discrete groups of voters, or individual voters, for purposes such as persuasion, recruitment or motivation, activities beyond the formulation of strategy and messaging. Similarly, communication soliciting actual support from actual or potential Proposition 8 supporters are unrelated to the formulation of strategies and messages. The District 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 Court may require the parties to redact the names of individuals with respect to these sorts of communications, but the content of such communications are not privileged." That's pretty clear. MR. BOMSE: irreverent. THE COURT: MR. BOMSE: Go ahead. But, the paragraph you just read from is If the order is I guess -- I guess this is my day to be a paragraph to which we take no objection. limited to documents involving persuasion, recruitment, or motivation, or subjects other than strategy and messaging, we will be content with that, at least as far as privilege is concerned. Now, we -THE COURT: And what is there that you have shown that any of the individuals mentioned in paragraph 6 and 7 of the Kors supplemental declaration do not fall within these kind of communications that are referred to in the third paragraph of Footnote 12? MR. BOMSE: Your Honor, I'm sorry, I believe the Our concern is not with Court is confusing "what" with "who." a limitation based upon what. That is, if there are, in fact, documents that involve these subjects -THE COURT: And communications with these kinds of 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 individuals. MR. BOMSE: different. No. I -- the two -- the two are entirely One has to do with who is involved in the function And that's what we're seeking to of strategy and messaging. protect. And that's actually all that the proponents are seeking to get from us. So, I mean, if -- if we can -- if we can agree here that documents not involving strategy and messaging need not be produced, well, then, maybe we don't have a problem. that then I wonder, really, why we're bothering. But I think that to try to take a sentence -- or, actually, it's not a sentence, it's a phrase "core group," that we are then told how to define in a particular way, that is, in light of the First Amendment associational interest the privilege is entitled to protect, then we have a coherent document that we have no problem with. But, I mean, I -- I have here -- and I don't want to burden the Court with it unnecessarily, but I have here a list of quotations from the Ninth Circuit's opinion which are referenced here. That is: Except "In light of the First Amendment associational interests the privilege is intended to protect." "The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment." 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 "There must be a right not only to form political associations, but to organize and direct them in the way that will make them most effective." And we have explained -- Mr. Kors has explained in his original declaration exactly what that was. and on. THE COURT: The trouble with your very expansive I could go on argument, Mr. Bomse, is that it throws a blanket privilege over political speech. private. And political speech is inherently not It's public. MR. BOMSE: And, of course, all of the public We are now talking about documents were produced voluntarily. documents that were not public, at least not in the sense that we believe either the Court's definition of relevance in the case or anything else. But the fact that you -- that a privilege -THE COURT: And, furthermore, you're contending that communications between the individuals that the Magistrate found in the core group and the individuals in paragraphs 6 and 7 of the Kors supplemental declaration are the kinds of private, internal communications regarding formulation of strategy and messaging that the Ninth Circuit has indicated should be protected. MR. BOMSE: THE COURT: That is my contention, yes. And you're telling me that a 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 communication between the core group, as found by the Magistrate, and individuals who are with organizations such as the Business Council, such as the Black AIDS Institute, the Stonewall Democrats, the various and sundry groups that are referred to here in these paragraphs 6 and 7, fall within the definition of a private internal communication. That simply strains credulity, to suggest that these kinds of outreach efforts by the core group, as defined by the Magistrate, would fall within this internal private communication definition that the Ninth Circuit has referred to. MR. BOMSE: Well, then, I suppose, Your Honor, I am asking you to strain credulity, because that is, in fact, precisely my position. It is my position that individuals with various organizations -- that you read, and you could read many more -came together for the common advancement -- and here I quote -of political beliefs and ideas. And that is exactly what is protected by the First Amendment. People with different organizations perform different roles in a campaign. It was the source of my attempt to illustrate in a somewhat fanciful way the idea of some -- of General Eisenhower communicating with people low down his staff about certain aspects of the D-Day invasion, or communicating with the British about certain aspects of that. 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 There are reasons why people have communications within a campaign. They may be very discreet. They may be related to a particular group of voters. And there is an expectation that those kinds of things are done for the common advancement of a political principle. THE COURT: But the difficulty I have with your argument is, you haven't provided any indication of where this privilege ends. And in a political campaign, especially when the Court of Appeals has told us that the privilege you're relying upon is a limited one, you've got to provide some coherent definition of where the limits of this privilege are. you haven't done. MR. BOMSE: THE COURT: The limits -That, it seems to me, you must do in That, order to show that the Magistrate is clearly erroneous. MR. BOMSE: The limits are the limits of "what." The limits are not the limits of "who," except insofar as these are people who did not have the function of being involved in strategy and messaging. I am -THE COURT: MR. BOMSE: THE COURT: MR. BOMSE: And what -I am not -Go ahead. It is not my intention to back down from 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 the proposition that those who are involved in strategy and messaging, which the Kors declaration and the record shows included the people we are talking about, that those people's communications about the subject of strategy and messaging are subject to a First Amendment privilege. One need not achieve a particular title. achieve or be involved in a particular function. One must And where the Magistrate Judge erred, as a matter of law, in our opinion, is in attempting to define, by reference to "who," where the whos that he has excluded, were people whom the record shows were involved in strategy and messaging. And I do -- and I do give you -- whether you credit it or not, a principled basis for limiting the privilege. it's the next paragraph that you read. If there are communications about subjects other than strategy and messaging, then we do not claim that there is necessarily a First Amendment privilege. THE COURT: MR. BOMSE: The next paragraph? Paragraph talking about purposes such as And persuasion, recruitment, or motivation, activities beyond the formulation of strategy and messaging. What we are saying to you -THE COURT: Wait a minute. The language is, "It" -- meaning the privilege -- "certainly does not apply to documents or messages conveyed to the electorate at large, discreet 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 groups of voters, or individual voters for purposes such as persuasion, recruitment, or motivation." MR. BOMSE: Yes. And we -- (Simultaneous colloquy.) THE COURT: ... groups of voters. And, it seems to me that the individuals mentioned in paragraphs 6 and 7 fall clearly within the discreet groups of voters that the Ninth Circuit was referring to. And, in any event, it's very hard to see how the Magistrate's interpretation of paragraphs 6 and 7 in that regard is clearly erroneous. MR. BOMSE: Well, it's -- it's clear error because it applies an incorrect legal standard. This is not a -- if -- if the Court credits our position that one must look at this functionally rather than formally or talismanically or by drawing a circle with a compass, then you get to this paragraph here, and you get to an appropriate limit. THE COURT: paragraph? MR. BOMSE: also limited." The problem with the order is that the Magistrate Judge reads the words "core group" without -- as having some kind of magic or mantra-like significance, rather than reading The paragraph begins, "Our holding is And "this paragraph here" is which 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 whole paragraph and rather than reading it in connection with the opinion as a whole. mistake. THE COURT: try one more time. Other than burden, what is the prejudice to your client of complying with the Magistrate's order? MR. BOMSE: That our constitutional rights will be I understand your position. Just let me And that is, with all respect, a infringed; that the privilege, as defined by the Ninth Circuit's January 4 opinion, will be rendered nugatory. That is the fundamental and overwhelming harm that's here, far more than the mere question of burden, as pertinent as we believe that is. And that -- that, above all, is why we are here and why we are very reluctantly finding ourselves in the position of doing something that I fear will give aid and comfort to the proponents here, which is the last thing we want to do. But this is a critical matter, as far as we're concerned. It's why -- it's why we joined with them in the Ninth Circuit, to begin with. THE COURT: chilled? What political speech is going to be What political speech has been chilled? MR. BOMSE: Well, nothing has been chilled in the But sense that before this issue arose that campaign was done. I believe, actually, the Ninth Circuit, in its opinion, used 28 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 notion that it was self-evident that there would be chilling. And we have, in fact, included material talking about how people are going to conduct campaigns in the future; that they are going to be concerned: Am I in the core group? Is this a communication that I cannot be confident will be kept private? If I associate with people in another group will we, therefore, lose privilege for our communications? If I decide that I need to talk to somebody whose position is to try and influence students at Stanford or influence people of Hispanic background on an issue? This is as core, Your Honor, as it gets, in terms of political speech. And the Ninth Circuit agreed with us. And the fact that they suggested that there was a limit, which properly understood we have no problem with, but as applied by Magistrate Judge Spero we find completely unsustainable as a matter of law. THE COURT: All right. Thank you, Mr. Bomse. Anybody else wish to speak on that side? Ms. Whittemore? MS. WHITTEMORE: THE COURT: Yes. Do you wish to add anything? Thank you, Your Honor. Lauren MS. WHITTEMORE: 29 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 Whittemore for Equality California. If I could try to provide some more background on the Equality for All campaign and how it was organized, to try to help get past this impasse of why the people in paragraphs 6 and 7 were actually participants in the formation of strategy and messaging for the campaign, and weren't simply a vehicle to provide outreach to discreet groups of voters. THE COURT: Okay. What can you show in that regard? MS. WHITTEMORE: In the original Geoff Kors declaration, which was filed on February 22nd -THE COURT: number on that? MS. WHITTEMORE: I'm afraid the copy I have doesn't Let me get that. What's the document have the document number on it. MR. BOMSE: What do you need? The original Kors declaration. MS. WHITTEMORE: MR. BOMSE: 598. MS. WHITTEMORE: THE COURT: right. 598. It's 598. All right. Hold on a second. All That was filed when? MS. WHITTEMORE: THE COURT: February 22nd. I have it. 598. All right. Yes. MS. WHITTEMORE: Starting on paragraph 5, we The describe the structure of the Equality for All campaign. reason we did this was, Mr. Kors was a member of the executive 30 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 committee of the Equality for All campaign and, therefore, many of his e-mails go directly to Equality for All campaign members as opposed to simply Equality California staff and volunteers. So we made the effort to describe the Equality for All campaign, in an effort to enlarge the core group. Equality for All existed before the Prop 8 campaign. And But once Prop 8 qualified for the ballot, it ramped up, in an effort to defeat the proposition, and did so by gathering a coalition of, ultimately, over 100 organizations to participate in a statewide campaign against Prop 8. And it was the main umbrella organization that served to campaign against Proposition 8. Equality California, ACLU, many other organizations were part of the campaign, both as individuals and as representatives of their organization. In paragraph 7 we describe the role of the executive committee. That's not an issue here because Judge Spero accepted the executive committee as being members of the core group. In paragraphs 8 and 9, we describe the role of the executive committee -- I mean, the campaign committee, pardon me, and the campaign staff. The campaign committee actually ratified decisions made by the executive committee, and met monthly in person or over conference calls. And as the election approached, they 31 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 met weekly. And the campaign staff, of course, which was paid either by the Equality for All organization or by the member organizations, were responsible for working with the campaign committee and the executive committee to formulate the strategies and deal with the logistics of getting the messaging out to the voters. And if you'll turn to paragraph 13, you'll see a more detailed -- on page 4, a more detailed explanation of the types of roles members of the campaign committee played. The campaign committee members did not simply receive strategy and messaging from the executive committee, and deliver those to discreet groups of voters. If that was their only function, then, yes, under the -- under Footnote 12, they would not be members of the core group. However, they did play a role in formulating strategy and messaging in such a way as to more appropriately target discreet voter groups. And to say that the development of generic statewide strategy and messaging should be privileged over the formulation of strategy and messaging targeting discreet voter groups seems, to me, to be a wrong way to approach protecting the First Amendment associational right. And, also, the campaign staff was involved in formulating specific strategy and messaging for specific groups. They also played a role in delivering that messaging. 32 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 we're not arguing that e-mails in which staff members or campaign committee members sent messages to volunteers should be privileged. privileged. Of course, those aren't That is the role of taking the strategy and messaging from within the organization and delivering it out. But, we're saying that the campaign committee and the staff played a role in the formulation of strategy and messaging. They weren't simply message carriers to the discrete voter groups. And on the issue of Footnote 12 -THE COURT: But these groups are embraced, are they not, within the core group as defined by the Magistrate? I'm looking at his order on pages 11 and 12. And it's a very expansive list of individuals and consultants. MS. WHITTEMORE: THE COURT: Yes. That is -- He quite carefully went through all of these individuals, all of these organizations, and made a reasoned determination whether they fell within the core group or did not. And so what I'm struggling to understand is how the Magistrate went off the rails and committed clear error in making these determinations. MS. WHITTEMORE: Because he failed to recognize that the campaign committee and the campaign staff still played a role in formulating strategy and messaging that wasn't simply the executive committee and the consultants hired by the 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 campaign. THE COURT: But the consultants, or at least some of the consultants, are embraced within the definition of the core group as found by the Magistrate. MS. WHITTEMORE: argument with that. Yes. And we have absolutely no Our argument is that the exclusion of the members of the campaign committee and the campaign staff is clear error. Because to say that they played no role, whatsoever, in the formulation of campaign strategy and messaging is simply wrong. THE COURT: Well, it's not a question of "no role whatever," as you read the instructions from the Ninth Circuit. It is an internal communication. And an organization that is communicated with, that is outside that which organized the campaign, is not an internal communication. MS. WHITTEMORE: for All campaign. THE COURT: Mr. Bomse. What are the limits? What's a rational definition Let me ask you the question that I asked But it's internal to the Equality that would allow one to decide how far this privilege extends or how narrow the privilege is? MS. WHITTEMORE: THE COURT: Well, I think -- You can't have -- particularly when you're talking about a political campaign and a privilege that 34 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 applies to a political campaign, you have to have a pretty definite notion of where the boundaries of this privilege are. MS. WHITTEMORE: to be able to draw lines. However, I think it would be illustrative to look at the case that the Ninth Circuit cited in their famous Footnote 12, In Re: Motor Fuel Temperature Sales Practices Litigation. Yes. I -- I agree. We -- we need In that case, the Court was addressing whether or not trade associations could protect their internal communications under the First Amendment. And the Court found that individual trade associations could do so, but communications between trade associations were not privileged. And I would put to the Court that the Equality for All campaign was essentially a trade association. One of the associations in the Motor Fuel case is the National Association of Truck Stop Operators, which is made up of more than 240 corporate entities. Requiring that any communications between those corporate entities not be protected by the First Amendment privilege would destroy the entire purpose of having a trade association. Here, while the political campaign is limited by time, the purpose is essentially the same; coming together, forming an organization to better represent the interests of the group. 35 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 Here the campaign committee members, certainly the campaign staff, were people who came together for a very specific purpose and participated in all the associational interests that comes with being engaged in a political campaign. So we were able to identify the members of the campaign committee. We were able to identify the staff. Any communications between the executive committee and the campaign staff were internal communications. THE COURT: But does this campaign committee, as you've described it, have any purpose or existence outside the Proposition 8 campaign? MS. WHITTEMORE: THE COURT: No. And isn't that the distinction which was drawn in the Motor Fuel Sales Practices Litigation, and which, evidently, the Ninth Circuit had in mind at the time it formulated the definition that it included in Footnote Number 12? MS. WHITTEMORE: THE COURT: Well, the -- the -- That is to say, if -- if the campaign is defined by Proposition 8 alone, then the communication amongst the individuals and groups in that campaign group cannot fit the definition of a private internal communication. MS. WHITTEMORE: I disagree with the Court because the Equality for All campaign was formed for a brief period, 36 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 for one particular purpose which has now passed. But that does not take away the fact that people, individuals and representative of organizations, formed a coherent group and engaged in communications within that coherent group for the purpose of defeating Proposition 8. Within that coherent group, they formulated their strategy, their messaging. And then the individual members took those messages out to the various counties and groups in the state. However, communications within that coherent group were private, internal campaign communications. While they were between individuals of different organizations that have separate existences beyond the campaign is true. But that does not require that they could not be part of a temporary trade association, as it were. If I may make one point on the issue of prejudice. On February 22nd, Elizabeth Gill submitted a declaration which addressed the prejudice that the ACLU would suffer. And on February 24th, Equality California submitted a declaration from James Carroll, regarding the chilling effect that would be suffered by Equality California if the members who participated in the campaign had been aware that their communications might be discoverable. We included a exhibit to that declaration, a letter that was sent to one of the donors to Equality California. Not 37 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 donor to the campaign in particular, but simply a donor to Equality California, from protectmarriage.com, which asked for a donation to the Yes On 8 campaign in the same amount as the donation that was made to Equality California. And we pointed out that as more information about the people who participated in the campaign comes to light, more people might be at risk of these types of communications, which will have an effect on our ability to raise funds in the future. THE COURT: further? MS. WHITTEMORE: THE COURT: No, Your Honor. Mr. -- I wonder, before I Very well, Ms. Whittemore. Anything All right. turn to Mr. Panuccio, Mr. Dusseault, do you have anything you wish to contribute on this? MR. DUSSEAULT: Your Honor, I do, very briefly. And not on either side of this particular matter, so if you would rather I wait until the end, I would be happy to. THE COURT: All right. If you're not going to weigh in on the subject we're discussing then maybe I'll let you defer. MR. DUSSEAULT: Well, I can make clear, we have not taken any position as to whether these documents should be produced or as to the objections. We do have some very significant concerns about the 38 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 timing of this production. later. THE COURT: I'm happy to address that now or All right. Let's come to that after I talk to Mr. Panuccio, because that also is on my mind. Now, let's begin right there, Mr. Panuccio. trial is over. Why are we doing this? Well, if Your Honor will recall, at The MR. PANUCCIO: the sort of close of the January phase of the trial, Mr. Thompson said that, while this motion was still pending the defendant-interveners could not rest their case, and asked for -- you know, we put in this motion at the beginning of the proceedings and asked for expedited resolution. granted. So, you know -- and what did not -- no resolution occurred throughout the January phase of the trial. So we had Wasn't no choice but to reserve the right to get these documents, look at them, and -THE COURT: Okay. I don't think anybody is So I criticizing the proponents with regard to the timing. don't think that's an issue. my mind. At least, that's certainly not on But picking up on something Mr. Bomse said, what's the relevance of all of this? in these documents? admissible evidence? One, what do you expect to find Two, how is this likely to lead to Three, if you do come up with evidence 39 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 that you think is admissible, how are you going to get it in? Are you going to call more witnesses? the evidence? What's ahead of us? Okay. I'll start with, your first And here Are you going to reopen MR. PANUCCIO: question, I believe, was: What do we expect to find? I would refer the Court back to the orders that -- of this Court, that defined the scope of what it would be looking at in deciding this case. And one of the things the Court said in its October 1st order was that the mix of information before and available to voters forms a legislative history that may permit the Court to discern whether the legislative intent of an initiative measure was a discriminatory motive. And I'm (inaudible) some of the middle of that quotation, but I don't think I'm changing the meaning. So if that is the inquiry the Court is going to take, we think it's only natural that if you look at a legislative history, you look at both sides. Right now, we have a very lopsided record, where there's only one -- only one side has been required to produce this legislative history, and the entire other side of the legislative history is missing. Equality California and the ACLU who are all, for short, say, the No On 8 objectors, the No On 8 objectors say that, well, yes, all of the proponents' documents are relevant, 40 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 none of our documents are relevant. THE COURT: There is some logic to that; isn't there? After all, you folks are the ones who are seeking to change the constitution of the State of California. The objectors are not seeking to change -- to enact anything in the law or into the constitution. And so isn't it fair to look at the materials of the proponents to determine if the objective of the proposition that they are sponsoring complies with a legitimate and substantial state interest? MR. PANUCCIO: Well, I believe one of the inquires that the plaintiffs have identified and that the Court has credited is, is there a discriminatory intent of the voters? And the Court has said the Court will look at the legislative history to determine that. I do not think it is possible to say or credible to say that a voter who votes in favor of an issue or a candidate looks only at the things that were said on -- in support of that issue or that that candidate said. For instance, I would wager that at least some members of Equality California voted for then Candidate Obama for president. Now, Candidate Obama came out against the Does that mean that every legalization of same-sex marriage. person from Equality California who voted for Candidate Obama, at the time, for president had shared his intent because he 41 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 made those statements? No. A voter for president would look at the variety of arguments and the cacophony of voices in a presidential campaign and balance it. And it's the same thing here. There were a lot of things being said about Proposition 8 at the time it was before the electorate. And any reasonable voter is going to look at arguments on both sides. Sometimes the No On 8 campaign might have made a credible argument that would cancel out one of the arguments in favor. THE COURT: What are you expecting to find? Let's assume you find the smoking gun document out of the Equality California group or the ACLU. like? MR. PANUCCIO: gun. I don't know what a single smoking What would that document look I think we might find a variety of documents that shed light on the issues that this Court has said it would look at, and the manner in which it would look at them. So, for instance, we might find documents that say we need to respond to this argument or that argument because it's legitimate and voters might well credit that. We might find documents that talk about the religious influence in the campaign and how the voters might be swayed by that. We might find documents that, separate and apart from 42 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 voter intent, talk about political power, another issue in this case. Without seeing the documents, I can't say, well, there's this smoking gun out there. And neither could the plaintiffs, by the way, when they were pursuing these documents from us. They were pursuing discovery to see if they could find relevant evidence. And certain rules were laid down by And we're suggesting the Court for how that could go forward. that should be applied here. THE COURT: Are you suggesting that the kind of thing that you are after is a document or evidence that suggests that the proponents of Proposition 8 had a legitimate argument in support of the proposition, and it is an admission of some kind on the part of the opponents that their internal documents show that kind of admission? MR. PANUCCIO: Is that what you're after? I don't know that we would call it an admission, if Your Honor is referring to the Federal Rules of Evidence and to admission because, of course, these third parties are not parties to the case. However, there may well be documents that are probative of what the conceivable legislative intent of the voters was when they enacted this initiative. crediting arguments from the other side. It may be that we find documents that show that And that may be 43 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 voters were turned off by certain No On 8 messages. And so, therefore, we can say, well, maybe they just voted in reaction to those messages. We don't know exactly what -You mean that the "No" folks ran a lousy THE COURT: campaign, and that's the reason that the proposition passed? MR. PANUCCIO: it's a lousy campaign. I don't know that it has to be that It could be that certain ads were so volatile or so offensive that certain voters said, "I take exception to that, and I'm going to vote on this side of the issue." I mean, the inquiry here is a difficult one -- and we have said that from the outset -- trying to find voter intent from a cacophony of voices. inquiry. And we have objected to that But it's being undertaken, so we need to try to And we litigate the case as best we can within that framework. have no record, because these parties have refused to produce. We have not been able to counterbalance anything on our side of the case. THE COURT: Mr. Bomse tells me that the light is not That is to say that, the cost of worth the candle here. imposing this discovery on the objectors is not going to turn up evidence that will have any material bearing on the outcome of the case. Tell me what evidence you think will have a material bearing on the outcome of the case, that you can obtain through 44 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 discovery. MR. PANUCCIO: Well, again, I would refer back to what I just submitted to the Court, which is, we believe that, just as proponents' internal documents about strategy and messaging might be relevant under this Court's orders to what the voters thought when they went to the ballot box in November of 2008 -THE COURT: Which their internal communications with regard to strategy and messaging will be protected under the Ninth Circuit's definition of the privilege. MR. PANUCCIO: THE COURT: To the extent -- Their internal communications. To the extent -- I don't know that the MR. PANUCCIO: Ninth Circuit's opinion and the word "internal" are concentric -- are -- occupy exactly the same sphere. But, yes, to the extent they have documents that fall within the definition of the core group, those would be protected. To the extent they have documents that fall outside of that, just as we had thousands of documents that fall outside of that, they would not be protected. So -- well. THE COURT: to find. MR. PANUCCIO: Well, and so I would rest on what I've Sorry. Is there something else? Well, you were answering what you expect 45 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 already just submitted. I think I've marched through, already, what I think we would find, which is the types of information this Court has identified are part of the legislative history of this constitutional amendment. THE COURT: Okay. Then before we go on to the next point, why isn't it fair that the proponents of the initiative should bear a greater burden of this kind of discovery than those who are opponents of the proposition? After all, your folks wanted to change the law, to change the constitution in the state. MR. PANUCCIO: Well, if the submission is that citizens who desire legislative and political change, therefore, have to pay a cost for that change in litigation simply because they desired that, I would say that there are First Amendment implications of that -THE COURT: No one is paying the cost. It's simply that they are subject to a level of scrutiny that those who are opposed to the proposition -- which would not affect any change in the law -- would not be subject to. MR. PANUCCIO: The Court has said it was the mix of information before and available -- this issue has been decided already, I submit. The Court has said it was the mix of information before and available to voters. THE COURT: Was that decided by the Ninth Circuit, or was that decided here? 46 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. PANUCCIO: That was decided here, and that the Court has said the Ninth Circuit affirmed those relevance rulings. And, the January 8th order from Judge Spero, which was then affirmed later by this Court, later in January, said documents that contained arguments for or against Proposition 8. Well, that really can't make a great deal of sense, if it's only confined to the proponents' documents. I assume they would mostly have arguments in favor or for Proposition 8, and not arguments against Proposition 8. But the Court has said documents containing both arguments are relevant to this legislative history, this record that needs to be built to decide this issue. So on the burden issue, it seems to me that if the Court needs to undertake that kind of inquiry, both sides engaged in a very expensive campaign. In fact, the No On 8 groups outspent the Yes On 8 groups in this campaign. So the notion that, well, they lost at the ballot box, so they have to bear no costs when the Court wants to look at the information before and available to the electorate, I think, does not -- would only serve to then chill those who want to go to the ballot, who want political change through the referendum processes. THE COURT: And that, you contend, is an unfair 47 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 allocation of these costs? MR. PANUCCIO: I would agree with that, Your Honor. I would agree with And, also -- well, I'll just stand on that. that, Your Honor. THE COURT: All right. Now, let's assume you come up with something that you think is relevant. What are you going to do with it? Well, I believe at the end of trial MR. PANUCCIO: there was a process by which many documents were moved in en masse through a stipulation with plaintiffs. So, of course, the first thing we need to do is get the production and have some time to review it. After we've reviewed it, any documents that we felt needed to -- that we want to put into the record, we would see if we could work something out with the plaintiffs on getting those in in a manner that was similar to the way in which documents were submitted throughout the trial and especially at the close of the trial. Another possibility is that -THE COURT: this process. MR. PANUCCIO: We would certainly, in that case, have Let's assume Mr. Dusseault objects to to bring the dispute to the Court and make our case as to why -THE COURT: And how would you do that? 48 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. PANUCCIO: appropriate vehicle. THE COURT: Well, I suppose, a motion would be the A motion to reopen, I would imagine? Well, I mean, the And that was MR. PANUCCIO: defendant-intervenors did not rest their case. with the Court's permission. I believe that was in the January 25th transcript. And the Court -- Mr. Thompson said, Having not received these documents, we cannot rest our case. And the Court said, Very well, I've ordered the No On 8 parties to respond to your motion, and then a few days later referred it to the Magistrate. THE COURT: Why shouldn't I ask you to make a proffer with respect to what it is you believe that you'll be able to show with respect to the discovery that you're pursuing? MR. PANUCCIO: Well, first of all, we haven't So you would be asking received any of the discovery. defendant-intervenors to make a proffer in the dark about what it is they would receive. What we would say is, everything that the plaintiffs said that they could show through our -- through the proponents -- the documents that they wanted from the proponents, the documents from the No On 8 groups could be relevant to those questions for disproving some of the points advanced by the plaintiffs, for advancing some of the rational 49 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 bases and other arguments that have been advanced by the proponents. THE COURT: Well, given the posture of the case presently, why is it unfair to require the proponents to make a proffer of what it is they expect to be able to prove once this discovery has been completed? MR. PANUCCIO: Well, I would say it's -- there are two reasons why that wouldn't be a proper procedure, at this point. The first is, I believe our papers submitted in the motion and then throughout this process have shown the types of -- have pointed in the Court's orders to the types of inquires that these documents may be relevant to. We can't say more about a specific document because we haven't had a single one. Two -THE COURT: Well, you know, you don't undertake discovery without an idea of what it is you hope to find. MR. PANUCCIO: We hope to find the information that was before and available to the electorate. THE COURT: you don't find it. MR. PANUCCIO: THE COURT: I believe -And sometimes you find it and sometimes But is it unfair or inappropriate for the Court to require you, at this time, to make a proffer of what 50 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 it is you expect this discovery will substantiate? MR. PANUCCIO: I think it is proper for the Court to impose on the proponents the same burden that were imposed on the plaintiffs when they sought this material. one. Point two is that -THE COURT: And what was that? Was that they submitted -- we had the That's point MR. PANUCCIO: motion back in September, our motion, the proponents' motion for a protective order. THE COURT: Right. The plaintiffs submitted their MR. PANUCCIO: response to that, and their document requests were before the Court. And they said that these documents, we think, will be relevant to, among other things, legislative intent, rational bases, political power. case. They listed all the issues in the And we would make the same proffer. The second point is -THE COURT: And have you done so? I believe that we have, in our papers. MR. PANUCCIO: THE COURT: Where? I believe our initial motion, our MR. PANUCCIO: reply in support of the motion, and our papers before this court that were filed last evening. Beyond that, I would just note for the Court the posture as you -- as the Court noted at the outset with 51 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. Bomse. The posture is, did Magistrate Spero clearly err? Asking us And they have brought certain objections. to proffer -- the failure to ask us to proffer is not one of the objections those parties have brought before this Court, asking for it to be corrected. proper. THE COURT: That is true. Although, Mr. Bomse spent So, I don't think it would be a good deal of time saying that this discovery is not worth a hill of beans, much less the costs and burden that it's going to cast on the objectors. MR. PANUCCIO: I would say that the nub of that argument is the nub of the argument we advanced in August and September and all the way throughout to the Ninth Circuit. That's what this is really about. I think that the No On 8 objectors full well know that this type of discovery is objectionable not only on privilege grounds but on relevance grounds. that, and we lost. So, as I say, we have to build the record that the Court has asked for. to build that record. THE COURT: raised that argument. Well, I don't know that you have to. You lost. You And we're just asking for the opportunity But, we litigated Now, you're saying, well, we lost so, therefore, the objectors should lose. But if you really stick by your guns, 52 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 you'll say, well, we lost, but all of this discovery is irrelevant anyway; couldn't possibly amount to anything that could be probative of any of the issues in the case. So why don't you just stick by your guns? MR. PANUCCIO: are wrong on that. Well, because one court has told us we And I think it would be irresponsible lawyering not to build the record in case higher courts tell us (inaudible) on that, as well, and want to look at this record. So, you know, we are here in the trial court now. need to build the record that may or may not persist all the way through the case, however high it goes. If I may turn -- if Your Honor is satisfied on the burden of relevance point -THE COURT: I don't know about that, but you may We certainly turn to the next issue. MR. PANUCCIO: had on those issues? THE COURT: Were there more questions the Court I'm happy to -Go ahead. Very quickly, on privilege. MR. PANUCCIO: As Mr. Bomse points out, we are sympathetic to some of the First Amendment arguments. So sympathetic, in fact, that Your Honor heard me read the exact same list o