Perry et al v. Schwarzenegger et al

Filing 461

MOTION to Exclude Kendall filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. Motion Hearing set for 1/15/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: #1 Exhibit A -- Declaration, *** #2 Exhibit B FILED IN ERROR. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** , #3 Exhibit C, #4 Proposed Order)(Cooper, Charles) (Filed on 1/14/2010) Modified on 1/15/2010 (ewn, COURT STAFF).

Perry et al v. Schwarzenegger et al

Doc. 461

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COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* [e-mail] David H. Thompson (DC Bar No. 450503)* [e-mail] Howard C. Nielson, Jr. (DC Bar No. 473018)* [e-mail] Nicole J. Moss (DC Bar No. 472424)* [e-mail] Jesse Panuccio (DC Bar No. 981634)* [e-mail] Peter A. Patterson (OH Bar No. 0080840)* [e-mail] 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: [phone], Facsimile: [phone] LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* [e-mail] James A. Campbell (OH Bar No. 0081501)* [e-mail] 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: [phone], Facsimile: [phone] ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL CASE NO. 09-CV-2292 VRW T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney DEFENDANT-INTERVENORS PROPOSITION 8 PROPONENTS AND PROTECTMARRIAGE.COM'S NOTICE OF MOTION AND MOTION TO EXCLUDE PROPOSED WITNESS RYAN KENDALL Date: January 15, 2010 Time: 8:30 a.m. Location: Courtroom 6, 17th Floor Judge: Chief Judge Vaughn R. Walker

DEFENDANT-INTERVENORS' MOTION TO EXCLUDE PROPOSED WITNESS RYAN KENDALL ­ CASE NO. 09-CV-2292 VRW

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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, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] Jordan W. Lorence (DC Bar No. 385022)* [e-mail] Austin R. Nimocks (TX Bar No. 24002695)* [e-mail] 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: [phone], Facsimile: [phone] * Admitted pro hac vice

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TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 15, 2010, at 8:30 a.m., or as soon thereafter as the matter may be heard, before the Honorable Vaughn R. Walker, United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, California, DefendantIntervenors Proposition 8 Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, and Mark A. Jansson, and Proposition 8 Campaign Committee ProtectMarriage.com ­ Yes on 8, a Project of California Renewal, will move this Court for an order excluding Plaintiff-Intervenor City and County of San Francisco's proposed witness Ryan Kendall. Defendant-Intervenors respectfully request an order excluding Ryan Kendall's testimony from this case. BACKGROUND In December 2009, Plaintiff-Intervenor disclosed its intent to call Mr. Kendall as a witness. Doc. No. 284 at 5. At that time, Plaintiff-Intervenor indicated that Mr. Kendall would "testify about how sexual orientation discrimination and `conversion therapy' affected him." Id. Prior to that time, Plaintiff-Intervenor had never disclosed Mr. Kendall as an individual who might have information relevant to this case. Thus, Defendant-Intervenors did not learn of Mr. Kendall's involvement in this case until December 2009, after discovery had closed. Defendant-Intervenors promptly alerted Plaintiffs and Plaintiff-Intervenor of their desire to depose Mr. Kendall. Campbell Decl. at ¶ 1 (attached hereto as Exhibit A). In response, Plaintiffs and Plaintiff-Intervenor indicated that Mr. Kendall could only be made available for deposition on January 7, 2010, a mere two business days before trial. Campbell Decl. at ¶ 2. At that January 7, 2010, deposition, Defendant-Intervenors learned of Mr. Kendall's tenuous connection to this case. For instance, (1) he is not a California resident and has never been a California resident, see Kendall Dep. at 45 (attached hereto as Exhibit B); (2) he did not have any role in opposing Proposition 8, id. at 51; (3) nor has he seen any of the "Yes on 8" campaign materials, id. at 51. Despite this lack of connection to the State of California in general or Proposition 8 in particular, Mr. Kendall indicates that he was contacted by the City and County of San Francisco, which asked him to be a witness in this case. Id. at 30-34. 1
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ARGUMENT Mr. Kendall's testimony should be excluded from trial; it is irrelevant, unnecessarily duplicative, and not the proper subject of lay testimony. This Court's August 24, 2009, Pretrial Order required each party to "file a statement identifying all persons who the party may call as witnesses and summarizing their testimony." Doc. No. 164 at 2. That Order also states that "the testimony of each witness will be limited to the matter set forth in [that] statement." Id. PlaintiffIntervenor has identified Mr. Kendall as a witness for two purposes: (1) to testify about "how sexual orientation discrimination . . . affected him"; and (2) to testify about "how . . . `conversion therapy' affected him." Doc. No. 284 at 5. But as will be demonstrated herein, it is not appropriate for Mr. Kendall to testify about either of these matters. The first stated purpose for Mr. Kendall's testimony--the particularized effect that sexual orientation discrimination had on him--is irrelevant to this case. His testimony on that point does not have a "tendency to make the existence of [a] fact that is of consequence to the determination of the action more or less probable." See Fed. R. Evid. 401. Mr. Kendall is one man from Colorado whose parents forced him to undergo conversion therapy against his will when he was 14 years old. See Kendall Dep. at 72, 74, 83. The particularized discrimination experienced by one person is not probative to this Court's analysis, and to the limited extent that the Court deems it to be relevant, "its probative value is substantially outweighed by . . . considerations of undue delay, waste of time, or needless presentation of cumulative evidence." See Fed. R. Evid. 403. Mr. Kendall's testimony about sexual orientation discrimination will be unnecessarily duplicative. See United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir. 1984) ("The exclusion of . . . cumulative[] evidence is within the sound exercise of the trial court's discretion"). Plaintiffs and Plaintiff-Intervenor have already offered both lay and expert testimony about sexual orientation discrimination. Each of the four plaintiffs has testified about his or her particular experience with sexual orientation discrimination. And one of Plaintiffs' and Plaintiff-Intervenor's experts,

Professor George Chauncey, presented several hours of testimony regarding his views on sexual orientation discrimination against gays and lesbians. It is thus unnecessary and a waste of this Court's resources to elicit the particular experiences of one individual who has no direct connection 2
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to the facts involved in case or even the State of California. The second stated purpose for Mr. Kendall's testimony--how he was affected by his experience with "conversion therapy"--is similarly irrelevant. See Fed. R. Evid. 401. Even if conversion therapy as a concept were somehow relevant to this Court's analysis, which is highly dubious, the anecdotal account of one person's negative experience with one particularized type of sexual-orientation-conversion therapy is simply not probative of any relevant fact in this case. It is no more probative than if Defendant-Intervenors called a lay witness to testify regarding his or her positive experience with conversion therapy. To the extent that conversion therapy is at all relevant to this case, it is an issue requiring expert testimony, which Plaintiffs and Plaintiff-Intervenor apparently intend to offer. They have identified an expert, Dr. Gregory M. Herek, who has discussed conversion therapy in his expert report. See Expert Report of Gregory M. Herek at ¶ 35 (attached hereto as Exhibit C). Mr. Kendall, in contrast, is not familiar with the scientific literature on the issues of sexual orientation or conversion therapy, see Kendall Dep. at 56-57, 94, 126-27, and will only testify about his particular experience, which, as discussed above, has no tendency "to make the existence of any fact that is of consequence more or less probable." See Fed. R. Evid. 401. CONCLUSION In conclusion, Defendant-Intervenors request that proposed witness Ryan Kendall be excluded from testifying in this case.

Dated: January 14, 2010 COOPER AND KIRK, PLLC ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL By: s/Charles J. Cooper Charles J. Cooper 3
DEFENDANT-INTERVENORS' MOTION TO EXCLUDE PROPOSED WITNESS RYAN KENDALL ­ CASE NO. 09-CV-2292 VRW