ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 210

MOTION to Modify Scheduling Order to Extend Deadlines by Department of Elections - City and County of San Francisco. (Givner, Jonathan) Modified on 4/28/2010 (Owen, K).

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DENNIS J. HERRERA, State Bar # 139669 City Attorney WAYNE SNODGRASS, State Bar # 148137 JON GIVNER, State Bar # 208000 ANDREW SHEN, State Bar # 232499 MOLLIE LEE, State Bar # 251404 Deputy City Attorneys One Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, California 94102-4682 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Defendants Department of Elections - City and County of San Francisco and Dennis J. Herrera, City Attorney for the City and County of San Francisco (Additional Counsel on next page)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION ProtectMarriage.com, et al., Plaintiffs, vs. Debra Bowen, et al., Defendants. MOTION TO MODIFY SCHEDULING ORDER TO EXTEND DEADLINES; POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. 2:09-CV-00058-MCE-DAD

Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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EDMUND G. BROWN JR., State Bar # 37100 Attorney General of California ZACKERY P. MORAZZINI, State Bar # 204237 Supervising Deputy Attorney General 1300 I Street, Suite 125 P. O. Box 944255 Sacramento, CA 94244-2550 Telephone: [phone] Facsimile: [phone] [e-mail] Counsel for Defendants Debra Bowen, California Secretary of State, and Edmund G. Brown, Jr., California Attorney General SCOTT HALLABRIN, State Bar # 76662 General Counsel LAWRENCE T. WOODLOCK, State Bar # 137676 Senior Commission Counsel Fair Political Practices Commission 428 J Street, Suite 620 Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] [e-mail] Counsel for Defendants Members of the Fair Political Practices Commission

Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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Defendants California Secretary of State Debra Bowen, California Attorney General Edmund G. Brown, Jr., and the members of the Fair Political Practices Commission ("State Defendants"), along with City and County of San Francisco and San Francisco City Attorney Dennis J. Herrera ("San Francisco Defendants") hereby move the Court to modify its May 15, 2009 pretrial scheduling order to extend all deadlines by 60 days, and state in support thereof: On May 15, 2009, the Court issued a Pretrial Scheduling Order setting deadlines for discovery, dispositive motions and trial in this matter. The Court's order provided that all non-expert discovery must be complete by May 14, 2010. Since the Court issued its order, the parties have proceeded with discovery, but Defendants are now unable to complete necessary discovery before May 14, largely because of Plaintiffs' inadequate responses to past requests and Plaintiffs' inability to produce crucial witnesses for depositions. Defendants seek a limited modification of the Court's scheduling order extending deadlines by 60 days to allow the parties to complete discovery. Defendants have not previously sought any modifications of the Court's scheduling order. Defendants have good cause for this request, and no party would be prejudiced by the extension. I. There Is Good Cause To Extend Deadlines By Sixty Days. Defendants seek to modify the scheduling order for two reasons: (1) an ongoing dispute regarding Plaintiffs' inadequate responses to Defendants' past discovery requests, and (2) Plaintiffs' professed inability to make critical witnesses available for depositions before non-expert discovery closes. First, Plaintiffs have failed to respond to most of Defendants' discovery requests, and after several months of delays and objections by Plaintiffs, Defendants now are seeking relief from the assigned magistrate judge. See Declaration of Mollie Lee ("Lee Decl.") ¶ 7. State Defendants propounded interrogatories and document requests on October 30, 2009 seeking a range of information regarding alleged harassment against supporters of Proposition 8, as well as information about Plaintiffs' collection of that information, their communications with alleged victims, and the impact of disclosure laws on Plaintiffs' operations and finances. See id. ¶ 2. Plaintiffs initially produced no responsive documents ­ or even a privilege log ­ and later agreed to produce responsive documents by March 1, 2010. See id. Despite that agreement, Plaintiffs did not complete document
Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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production until March 23, 2010 ­ five months after Defendants' requests. See id. ¶ 3. And what Plaintiffs ultimately produced was drastically incomplete, responding to only three of the 13 document requests, and consisting almost entirely of fundraising communications, campaign advertisements, public opinion surveys, and e-mails sent to Plaintiffs by opponents of Proposition 8. Plaintiffs objected to most of Defendants' requests based on a broad "First Amendment privilege" and otherwise declined to produce any information that Plaintiffs considered "confidential." After attempting to resolve the dispute, Defendants now are in the process of asking the assigned magistrate for an order compelling Plaintiffs to respond to Defendants' requests. The parties are finalizing a joint statement regarding the discovery disagreement, which Defendants hope to file as soon as they receive proposed text from Plaintiffs' counsel. See id. ¶ 7. If the Court grants Defendants' requested relief in that dispute, Defendants anticipate that they will need a few weeks to review the new documents and complete any needed follow-up with Plaintiffs' counsel. A 60-day extension of the May 14 deadline would allow for a proper close of non-expert discovery. Second, Plaintiffs' counsel have indicated that they cannot make relevant witnesses available for depositions before the close of non-expert discovery. After receiving and reviewing Plaintiffs' limited document production on March 23, counsel for Defendants determined that they would need to supplement the information Plaintiffs have produced by taking a limited number of depositions before the end of the non-expert discovery period. Specifically, Defendants anticipate two days of depositions ­ depositions of each Plaintiff organization under Federal Rule of Civil Procedure 30(b)(6), which would likely be combined with depositions of Plaintiff organizations' chief executives who have claimed personal knowledge of material information in this litigation. On April 12, counsel for the San Francisco Defendants contacted Plaintiffs' counsel to request any dates when those witnesses would be available before the close of non-expert discovery. See id. ¶ 3. On April 20, Plaintiffs' counsel indicated that the witnesses would not be available at any point in the remaining discovery period. See id. ¶ 5. Instead, Plaintiffs' counsel offered to make the witnesses available on May 27 and 28, after the discovery period closes. See id. But Plaintiffs were unwilling to stipulate to any extension of the current discovery deadline. See id. ¶ 6.

Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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Defendants seek a 60-day extension of deadlines for the purpose of taking these critical depositions and following up as necessary. Plaintiffs are seeking to depose only two individual witnesses and three 30(b)(6) witnesses, and those depositions are crucial. Because Plaintiffs' documentary discovery responses have been so incomplete, Defendants anticipate that these depositions will allow Defendants to discover the information that Plaintiffs have so far refused to disclose. If these depositions can be scheduled at the end of May, as Plaintiffs have offered, then a 60day extension of the discovery period would allow sufficient time to take the depositions and to follow up with targeted requests for any significant information newly disclosed by the witnesses' testimony. II. No Party Would Be Prejudiced By The Proposed Modification The proposed 60-day extension of deadlines would not prejudice any party to the litigation. The Court's initial schedule anticipated a 26-month period from the filing of the complaint to the start of trial, and Defendants' proposed modification would change that schedule by only two months. Defendants are not aware of any harm that Plaintiffs would suffer as a result of this limited extension. Moreover, as noted above, Defendants are seeking a modification of the scheduling order in large part because of Plaintiffs' delays in responding to discovery requests. It would be inequitable to allow Plaintiffs to run out the clock by delaying their discovery responses and then to object when time finally runs out. Therefore, for good cause shown, Defendants request that Court modify the May 15, 2009 scheduling order to provide the following amended deadlines: · · · · /// /// /// July 13, 2010: completion of non-expert discovery; September 13, 2010: expert witness disclosures; November 15, 2010: last date for hearing on dispositive motions; March 7, 2011: joint pretrial conference statement and pretrial motions due;

Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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· ·

March 14, 2011: trial briefs due; May 9, 2011: commencement of trial.

Dated: April 27, 2010 By /s/Jonathan Givner JONATHAN GIVNER Attorney for Defendants Department of Elections ­ City and County of San Francisco and Dennis J. Herrera

Motion to Modify Pretrial Scheduling Order CASE NO. 2:09-CV-00058-MCE-DAD

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