Kristin Perry, et al v. Dennis Hollingsworth, et al

Filing 40

Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, - Yes on 8, A Project of California Renewal and Hak-Shing William Tam response to Court order dated 12/16/2009. Date of service: 12/24/2009. [7175575] (CJC)

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Kristin Perry, et al v. Dennis Hollingsworth, et al Doc. 40 Att. 1 EXHIBIT 1 Pages 1 - 120 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER ) ) ) ) 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. ) ) ___________________________________) KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, NO. C 09-2292-VRW San Francisco, California Wednesday December 16, 2009 10:00 a.m. TRANSCRIPT OF PROCEEDINGS Reported By: CSR #5812, Katherine Powell Sullivan, CSR #5812, RPR, CRR Official Reporter - U.S. District Court 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 please. MR. OLSON: THE CLERK: DECEMBER 16, 2009 PROCEEDINGS 10:00 A.M. Calling civil case 09-2292, Kristin Perry, et al. versus Arnold Schwarzenegger, et al. Can I get the appearances from the plaintiffs' side, Good morning, Your Honor. Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf of the plaintiffs. THE COURT: MR. BOIES: Good morning, Mr. Olson. Good morning, Your Honor. David Boies, Boise, Schiller & Flexner, also on behalf of plaintiffs. THE COURT: Good morning, Mr. Boies. Good morning, Your Honor. MR. BOUTROUS: Theodore Boutrous, also from Gibson, Dunn & Crutcher, for plaintiffs. THE COURT: Good morning. Good morning, Your Honor. MR. DUSSEAULT: Chris Dusseault, Gibson, Dunn & Crutcher, on behalf of plaintiffs. THE COURT: MR. MCGILL: Good morning. Good morning, Your Honor. Matthew McGill, Gibson, Dunn & Crutcher, for the 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 the "electorate at large" is the language that proponents have used -- their communications to voter groups and to individuals, and door-to-door communications from script would be privileged. And so we are being blocked from that discovery. We served this discovery months and months ago, and so it really is hindering us. As the Court knows, we have many, many arguments that do not depend on this information. So I'm not standing here But telling the Court that we can't make our case without it. it seems fair game. And it's clearly outside the narrow privilege, in terms of the documents that are covered by the Ninth Circuit's ruling, internal communications that were private. THE COURT: What are the entities to which these subpoenas have been served? MR. BOUTROUS: I think we have some church organizations, other advocacy groups or other organizations that were supporting Proposition 8. And we're -- you know, we would limit it to the same sort of sphere of documents. THE COURT: Were these entities all supporters of Proposition 8, as opposed to, say, the Wall Street Journal, which is obviously not involved in the campaign except as a media organization? 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 you're making against Proposition 8? Could it be that if discovery goes too broad in this case, to impinge upon the First Amendment, you would jeopardize any judgment that you obtain adverse to the constitutionality of Proposition 8? MR. BOUTROUS: Honor. We do want to be careful on that, Your We We believe that we -- I want to be very clear. believe we can -- we can prevail and will prevail, ultimately, on these issues, even if we don't have these documents; that the Romer test -- we think there are alternative ways to prevail under Romer and under the Supreme Court's other decisions, that, yes, if we have evidence that shows improper motivations, that adds to the case. And so we would be sensitive to that, I think. think, though, that if we receive discovery, we receive documents, and the Court were to analyze the case as -- with the documents and with the information, and without it, there would be a way to ensure that any ruling that was favorable to us did not rise or fall on those documents. And the fact that And I they had been produced or compelled to be produced would not affect the judgment. THE COURT: Well, under those circumstances, doesn't that undermine the position which the Ninth Circuit has told us the plaintiffs must demonstrate in order to obtain this discovery; that is, it must meet a higher than usual standard 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 of relevance and make a compelling showing of need? MR. BOUTROUS: Absolutely, Your Honor, as to the documents that are covered by the privilege, the internal communications. And right now, today, I'm only talking about our efforts to seek things that we think are clearly outside the privilege, which are subject to the normal rules because they are not private internal campaign communications. But I do take your point. that fact. We are very sensitive to We want to build the best record for our clients we And we have thought we have can, and don't want to take risks. been well within the heart of the First Amendment, and very respectful of those interests. into account. As for discovery, I don't think that having discovery on issues, particularly things that are clearly outside the privileges laid out by the Ninth Circuit, would jeopardize our arguments and jeopardize any judgment we might obtain. THE COURT: Thank you. Anything further? Thank It's something we would take MR. BOUTROUS: you very much. THE COURT: I think that's it, Your Honor. All right. Let's see, Mr. Cooper, you said which of your colleagues, Mr. Thompson, is -MR. COOPER: THE COURT: No, Your Honor. What's that? Mr. Panuccio.

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