Perry et al v. Schwarzenegger et al

Filing 472

MOTION to Compel filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit)(Cooper, Charles) (Filed on 1/15/2010)

Perry et al v. Schwarzenegger et al

Doc. 472 Att. 2

Case3:09-cv-02292-VRW Document472-3

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EXHIBIT 3

Dockets.Justia.com

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page2 of 28

09/15/09 Letter to ACLU

Case3:09-cv-02292-VRW Document472-3

ALLIANCE DEFENSE FUND
Defending O"r Find Li!Jerty

lVi

Filed01/15/10 Page3 of 28

September 15,2009
Via Overnight Delivery and Electronic Mail No on Proposition 8 Campaign for Marriage Equality
A Project of the American Civil Liberties Union of

Northern California

c/o Bonnie S. Anderson 39 Drumm Street San Francisco, California 94111

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Anderson:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v. Schwarzenegger.

The Proposition 8 Proponents reiterate, as we indicated in the cover letter that
accompanied the subpoena, that in responding to the document requests you should "follow the
same narrowing constructions that the Proposition 8 Proponents and ProtectMarriage.com are

following with respect to their responses to document requests from the Plaintiffs in this action." Further, we are not seeking your "organization's internal communications and documents, including
communications between (your) organization and its agents, contractors, attorneys, or others in a

similarly private and confidential relationship with the organization" and "to the extent (the requests) call for communications or documents prepared for public distribution, include only documents that were actually disclosed to the public."

The requests in the subpoena issued to your organization mirror the document requests that the Plaintiffs served on the Proposition 8 Proponents, with the significant caveat that the
Proposition 8 Proponents-through the "narrowing construction" set forth above-attempted to

exclude any documents we believe are irrelevant or constitutionally protected under controlling law. Unlike the Proposition 8 Proponents' attempts to exclude such materials in its subpoena to
your organization, the Plaintiffs are insisting that the Proposition 8 Proponents provide

documents that we believe are irrelevant and constitutionally protected. As a result, the Proposition 8 Proponents have objected to the Plaintiffs' requests. I have attached to this letter a copy of the Proposition 8 Proponents' objections.

15100 N. 90TH STREET. SCOTTSDALE, ARIZONA 85260 . PHONE [phone] fAX [phone] WEB WWWTELLADF.ORG

~:t.:":",I~,,;,,,'t:,:""': ',,:.~~ '.:.. 'iiL(~ :."~, ~ ,~:.~:,"/~~"l, :'i,. ~:j7"::' .;\.. ,i ;~t.~'1': .~'\"J:: L" ¡;:~ :.-, " .'~ ,(~', n:("~_'IL:¡:""'~~kf~~'.::i,"'I;j

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page4 of 28

Please understand that when you produce the requested documents, the Proposition 8

Proponents do not expect your organization to produce any of the materials to which we have objected in the attached document.
Nevertheless because the Proposition 8 Proponents and the Plaintiffs have been unable to
reach an agreement on the permissible scope of discovery, we are filing with the COUli a motion

for a protective order. While the Proposition 8 Proponents will urge the Court that the objectedto materials are protected from disclosure, should the Court disagree with us, we would expect your organization to produce the same types of materials that we are required to produce.

If the Court rejects the motion for a protective order, the Proposition 8 Proponents will alert you of the need to provide additional documents at that time.
Thank you for your assistance in this matter.

~~
cc: All counsel of record
Encl.

Sincerely,

James A. Campbell

2

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Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page5 of 28

10/09/09 Letter to ACLU

Case3:09-cv-02292-VRW Document472-3

ALLIANCE DEFENSE FUND
Defendiny O"r FirAt Liberty

lIT

Filed01/15/10 Page6 of 28

October 9, 2009

Via United States First-Class ivlail and Electronic Mail
No on Proposition 8 Campaign for Marriage Equality
A Project of the American Civil Liberties Union of

Northern California

c/o Elizabeth O. Gill
ACLU Foundation of

Northern California

39 Drumm Street
San Francisco, California 94 I I I

Re: Peny v. Schwarzenegger,

U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Gill:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v. Schwarzenegger.

As discussed in our prior correspondence related to this subpoena, the information and
documents sought by the Proposition 8 Proponents are the same information and documents

being requested of the Proposition 8 Proponents by Plaintiffs. The discovery requests served on your organization mirror the requests served on Defendant-Intervenors with the significant caveat that the Proposition 8 Proponents have heretofore narrowed these requests in an attempt to exclude what we have argued to the Court in a Motion for a Protective Order are constitutionally protected documents that should be excluded from discovery on First Amendment, relevance. and burden grounds. I am now writing to inform you that on October I, 2009, the Court issued an order granting in part and denying in part that motion. See Doc. NO.2 I 4 (attached hereto).

With respect to the relevance and burdensomeness objections, the Court granted the
motion in part as it applied to Request No.8, holding that the Request "is broader than necessary to obtain all relevant discovery," and directing Plaintiffs to "revise request no 8 to target those communications most likely to be relevant." Id. at 15- 16. With respect to the remainder of the Proposition 8 Proponents' relevance and burdensomeness objections, the motion was denied. Id at 17. In accordance with the COUli's instructions, Plaintiffs subsequently revised their Request No.8, which is contained in the letter attached hereto from Ethan Dettmer to Nicole Moss dated October 5, 2009. Accordingly, we are likewise revising our Request NO.8 to your organization to mirror the revised request that has been served on the Proposition 8 Proponents.

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WWWTELLAF.ORG

- ' ','".'," ,';:: " : ' ,:. ",,",, -" ',:, ,', ',"',,' " ':~' " :, ,:,.,,; , ::'" :,'. . .',,:'0 ::' '.:,: ': :~o.., "', ,:: : ",,' ~ ~.

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page7 of 28

We do not, however, expect you at this time to produce any documents other than those that have been previously requested and that are not included without our stated objections.
Although the Court has denied our request for a Protective Order and thus production of such

documents may ultimately be required, we are currently seeking a stay of the Court's October i Order as we pursue an appeal in the Ninth Circuit. A copy of the Notice of Appeal filed by the Proposition 8 Proponents is attached hereto. Once again, while the Proposition 8 Proponents will urge the District Court and/or Ninth Circuit to grant our request for a stay, should this request be denied or should we ultimately lose our appeal, we would expect your organization to produce the same materials that the Court requires us to produce. We will let you know immediately should that occur. For now, we simply wanted to inform you of these developments so that you
can prepare for the eventuality that we will need to seek additional documents through this

subpoena.

Thank you for your assistance in this matter.

Sincerely,

James A. Campbell

cc: All counsel of record
Encl.

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Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page8 of 28

10/29/09 Letter to ACLU

Case3:09-cv-02292-VRW Document472-3

ALLù\CE DEFENSE FUND
Defending Our Fir.M Liberty

iæ

Filed01/15/10 Page9 of 28

October 29,2009

Via United States First-Class Mail and Electronic Mail

Noon Proposition 8 Campaign for Marriage Equality
A Project of the American Civil Liberties Union of

Northern California

c/o Elizabeth O. Gil
ACLU Foundation of

Northern California

39 Drumm Street San Francisco, California 94111

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Gil:

I am writing once again concerning the subpoena to produce documents and

electronically stored information previously issued to your organization (or the organization that you represent) by the Proposition 8 Proponents and ProtectMariage.com (collectively referred to
as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v.

Schwarzenegger. As this case has progressed, the Proposition 8 Proponents have endeavored to keep you informed regarding discovery developments affecting the scope of the requests in the subpoena served on your organization. On October 23,2009, shortly after we last communicated with you, we received the attached order from the district court in which this case is pending.
For the reasons stated in the Proposition 8 Proponents' motion for a protective order (Doc the information

# 187, Doc # 197) and in prior correspondence with you, we believe that some of

requested in our subpoena (which mirrors the document requests served by Plaintiffs on the Proposition 8 Proponents) should not be the subject of discovery and should not factor into the Court's consideration of this case. We have, however, made clear from the outset of correspondence with you that our expectation is that your organization wil need to produce the same types of documents and information that the Proposition 8 Proponents are required to
produce.

In light of the Court's orders of October 23, 2009, and October 1, 2009, denying a
categorical claim of First Amendment privilege and requiring the Proposition 8 Proponents to privilege to the Court on a document-by-document basis, see Doc # 237 at 4-7 submit claims of (citing Kerr v. United States District Court, 426 U.S. 394 (1976)), we now have no choice but to seek from your organization the types of documents and information that the Court has deemed relevant to its consideration of this case. Thus, unless or until you or we obtain judicial relief from the type of discovery we are requesting, we must withdraw the narrowing interpretations on

1

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX 480-444,0028 WEB WW.TELLAF.ORG

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page10 of 28

the document requests that were served upon you and insist that you produce the documents and Civil Procedure. information requested in accordance with the Federal Rules of
To facilitate a discussion on logistics going forward, please let me know by November 2, 2009, how you intend to comply with your discovery obligations.
Thank you for your assistance in this matter.

~~bell
cc: All counsel of

~~;;
Sincerely,

record

Encl.

2

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page11 of 28

09/15/09 Letter to CAEBR

Case3:09-cv-02292-VRW Document472-3

ALLIACE DEFENSE FUND
Defending Our FirAt Liberty

lIT

Filed01/15/10 Page12 of 28

September 15, 2009

Via Overnight Delivery and Electronic Mail

Californians Against Eliminating Basic Rights c/o James C. Harrison and Kari Krogseng
201 Dolores Avenue

San Leandro, California 94577

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Mr. Harrison and Ms. Krogseng:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v. Schwarzenegger.

The Proposition 8 Proponents reiterate, as we indicated in the cover letter that
accompanied the subpoena, that in responding to the document requests you should "follow the
same narrowing constructions that the Proposition 8 Proponents and ProtectMarriage.com are

following with respect to their responses to document requests from the PlaintitTs in this action." Further, we are not seeking your "organization's internal communications and documents, including communications between (your) organization and its agents, contractors, attorneys, or others in a similarly private and confidential relationship with the organization" and "to the extent (the requests) call for communications or documents prepared for publ ic distribution, include only documents that were actually disclosed to the public."
The requests in the subpoena issued to your organization mirror the document requests

that the Plaintiffs served on the Proposition 8 Proponents, with the significant caveat that the
Proposition 8 Proponents-through the "narrowing construction" set forth above-attempted to exclude any documents we believe are irrelevant or constitutionally protected under controlling

law. Unlike the Proposition 8 Proponents' attempts to exclude such materials in its subpoena to
your organization, the Plaintiffs are insisting that the Proposition 8 Proponents provide

documents that we believe are irrelevant and constitutionally protected. As a result, the Proposition 8 Proponents have objected to the Plaintiffs' requests. I have attached to this letter a the Proposition 8 Proponents' objections. copy of

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WWW.TELLAF.ORG ,~ ,.',ll, .orT '. I'..:" ,,,' ~',:_~\.~l'. '.': . '. " ~~ ",.,.:".'~.l:" ,_~. " ~F I; _', ,..','r ,.~',"

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page13 of 28

Please understand that when you produce the requested documents, the Proposition 8

Proponents do not expect your organization to produce any of the materials to which we have objected in the attached document.
Nevertheless because the Proposition 8 Proponents and the Plaintiffs have been unable to reach an agreement on the permissible scope of discovery, we are filing with the Court a motion for a protective order. While the Proposition 8 Proponents will urge the Court that the objectedto materials are protected from disclosure, should the Court disagree with us, we would expect your organization to produce the same types of materials that we are required to produce.

If the Court rejects the motion for a protective order, the Proposition 8 Proponents will alert you of the need to provide additional documents at that time.
Thank you for your assistance in this matter.

~
cc: All counsel of record
EncL.

Sincerely,

James A. Campbell

2

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Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page14 of 28

10/09/09 Letter to CAEBR

Case3:09-cv-02292-VRW Document472-3

ALLIANCE DEFENSE FUND
Defending Dt/r FirM Liberty

lDf

Filed01/15/10 Page15 of 28

October 9, 2009

Via United States First-Class Mail and Electronic Mail
Californians Against Eliminating Basic Rights c/o Kari Krogseng Remcho, Johansen & Purcell, LLP
201 Dolores A venue

San Leandro, California 94577

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Krogseng:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Peny v. Schwarzenegger.

As discussed in our prior correspondence related to this subpoena, the information and
documents sought by the Proposition 8 Proponents are the same information and documents

being requested of the Proposition 8 Proponents by Plaintiffs. The discovery requests served on your organization mirror the requests served on Defendant-Intervenors with the significant caveat that the Proposition 8 Proponents have heretofore narrowed these requests in an attempt to exclude what we have argued to the Court in a Motion for a Protective Order are constitutionally

protected documents that should be excluded from discovery on First Amendment, relevance, and burden grounds. I am now writing to inform you that on October 1, 2009, the Court issued an order granting in part and denying in part that motion. See Doc. No. 214 (attached hereto).

With respect to the relevance and burdensomeness objections, the Court granted the
motion in part as it applied to Request No.8, holding that the Request "is broader than necessary to obtain all relevant discovery," and directing Plaintiffs to "revise request no 8 to target those communications most likely to be relevant." Id. at 15-16. With respect to the remainder of the Proposition 8 Proponents' relevance and burdensomeness objections, the motion was denied. Id. at 17. In accordance with the Court's instructions, Plaintiffs subsequently revised their Request No.8, which is contained in the letter attached hereto from Ethan Dettmer to Nicole Moss dated October 5, 2009. Accordingly, we are likewise revising our Request NO.8 to your organization to mirror the revised request that has been served on the Proposition 8 Proponents.

We do not, however, expect you at this time to produce any documents other than those that have been previously requested and that are not included without our stated objections. Although the Court has denied our request for a Protective Order and thus production of such

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WWW.TELLAF.ORG
. ~ ~ ~,' ._. ~ : '. '.' l:', tJ~" " '." c,," ..' .. 'r:": ,', J ~ :" " i.. 'i"¡,, ,.,1 ,~e~ " ", ',~, .". .. ',", \'¿.",'¡:, ;1- ~' 1.,,'_

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page16 of 28

documents may ultimately be required, we are currently seeking a stay of the Court's October 1 Order as we pursue an appeal in the Ninth Circuit. A copy of the Notice of Appeal filed by the Proposition 8 Proponents is attached hereto. Once again, while the Proposition 8 Proponents will urge the District Court and/or Ninth Circuit to grant our request for a stay, should this request be denied or should we ultimately lose our appeal, we would expect your organization to produce the same materials that the Court requires us to produce. We will let you know immediately should that occur. For now, we simply wanted to inform you of these developments so that you
can prepare for the eventuality that we will need to seek additional documents through this

subpoena.

Thank you for your assistance in this matter.

Sincerely,

James A. Campbell

~

cc: All counsel of record
Encl.

\:',:'~:"";~,~":.' "".~:.'..,l:, ',",;,,' -',:;" '~.' "", ' " '" " ",' "',, "'~' r"::"...:~~:. '., ',";'

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page17 of 28

10/29/09 Letter to CAEBR

Case3:09-cv-02292-VRW Document472-3

ALL~CE DEFENSE FUND
Defending Our FirM Liberty

lil

Filed01/15/10 Page18 of 28

October 29,2009

Via United States First-Class Mail and Electronic Mail
Californians Against Eliminating Basic Rights c/o Kari Krogseng Remcho, Johansen & Purcell, LLP 20 1 Dolores Avenue San Leandro, California 94577

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Krogseng:

I am writing once again concerning the subpoena to produce documents and

electronically stored information previously issued to your organization (or the organization that you represent) by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to
as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v.

Schwarzenegger. As this case has progressed, the Proposition 8 Proponents have endeavored to keep you informed regarding discovery developments affecting the scope of the requests in the subpoena served on your organization. On October 23,2009, shortly after we last communicated with you, we received the attached order from the district court in which this case is pending.
For the reasons stated in the Proposition 8 Proponents' motion for a protective order (Doc # 1 87, Doc # 197) and in prior correspondence with you, we believe that some of the information

requested in our subpoena (which mirrors the document requests served by Plaintiffs on the Proposition 8 Proponents) should not be the subject of discovery and should not factor into the Court's consideration of this case. We have, however, made clear from the outset of correspondence with you that our expectation is that your organization wil need to produce the same types of documents and information that the Proposition 8 Proponents are required to
produce.

In light of the Court's orders of October 23, 2009, and October l, 2009, denying a
categorical claim of First Amendment privilege and requiring the Proposition 8 Proponents to submit claims of privilege to the Court on a document-by-document basis, see Doc # 237 at 4-7 (citing Kerr v. United States District Court, 426 U.S. 394 (1976)), we now have no choice but to seek from your organization the types of documents and information that the Cour has deemed relevant to its consideration of this case. Thus, unless or until you or we obtain judicial relief from the type of discovery we are requesting, we must withdraw the narrowing interpretations on the document requests that were served upon you and insist that you produce the documents and information requested in accordance with the Federal Rules of Civil Procedure.

1

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WW.TELLAF.ORG

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page19 of 28

To faciltate a discussion on logistics going forward, please let me know by November 2, 2009, how you intend to comply with your discovery obligations.
Thank you for your assistance in this matter.

cc: All counsel of record
Encl.

2

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page20 of 28

09/15/09 Letter to Equality California

Case3:09-cv-02292-VRW Document472-3

ALLIANCE DEFENSE FUND
Deteiidiiiy O"r FirM Liberty

lff

Filed01/15/10 Page21 of 28

September i 5,2009
Via Overnight Deliveiy

Win Marriage Back, A Project of Equality California (formerly known as No on 8 - Equality California) c/o James B. Carroll 2370 Market Street, 2nd Floor
San Francisco, California 94 i i 4

Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Mr. Carroll:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v. Schwarzenegger.

The Proposition 8 Proponents reiterate, as we indicated in the cover letter that
accompanied the subpoena, that in responding to the document requests you should "follow the
same narrowing constructions that the Proposition 8 Proponents and ProtectMarriage.com are

following with respect to their responses to document requests from the Plaintiffs in this action."
Further, we are not seeking your "organization's internal communications and documents, including

communications between (your) organization and its agents, contractors, attorneys, or others in a similarly private and confidential relationship with the organization" and "to the extent (the requests) call for communications or documents prepared for public distribution, include only documents that were actually disclosed to the public."

The requests in the subpoena issued to your organization mirror the document requests that the Plaintiffs served on the Proposition 8 Proponents, with the significant caveat that the
Proposition 8 Proponents-through the "narrowing construction" set forth above-attempted to exclude any documents we believe are irrelevant or constitutionally protected under controlling

law. Unlike the Proposition 8 Proponents' attempts to exclude such materials in its subpoena to
your organization, the Plaintiffs are insisting that the Proposition 8 Proponents provide

documents that we believe are irrelevant and constitutionally protected. As a result, the Proposition 8 Proponents have objected to the Plaintiffs' requests. I have attached to this letter a copy of the Proposition 8 Proponents' objections.

. ., , '" " . ". ". .. ,_, ....' ..' 'c ; . . '. . I, "" ! . .... ". . ", . ': . . .' . _,:' '. . .. ,,",- . .

15100 N. 90TH STREET. SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WWW.TELLAF.ORG

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page22 of 28

Please understand that when you produce the requested documents, the Proposition 8

Proponents do not expect your organization to produce any of the materials to which we have objected in the attached document.
Neveiiheless because the Proposition 8 Proponents and the Plaintiffs have been unable to reach an agreement on the permissible scope of discovery, we are filing with the Court a motion for a protective order. While the Proposition 8 Proponents will urge the Court that the objectedto materials are protected from disclosure, should the Couii disagree with us, we would expect your organization to produce the same types of materials that we are required to produce.

If the Court rejects the motion for a protective order, the Proposition 8 Proponents will alert you of the need to provide additional documents at that time.
Thank you for your assistance in this matter.

~
cc: All counsel of record
Encl.

Sincerely,

James A. Campbell

2

';':';;)~::.'.:':":..:':"'~.~.:."~': X":;.,',, ,,',,' ','" ,'," '. ..." ,.,""..,,' '" '( '~:~"1'::'(:':":~::

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page23 of 28

10/09/09 Letter to Equality California

Case3:09-cv-02292-VRW Document472-3

ALLIACE DEFENSE FUND
Defending Our FirM Liberty

lIT

Filed01/15/10 Page24 of 28

October 9, 2009

Via United States First-Class Mail and Electronic lv/ail

Win Marriage Back, A Project of Equality California (formerly known as No on 8 - Equality California) c/o Carolyn Chang Fenwick & West, LLP 801 California Street Mountain View, CA 94041
Re: Pel'Y v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Chang:

This letter is a follow-up correspondence regarding the subpoena to produce documents and electronically stored information previously issued to your organization by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v. Schwarzenegger.

As discussed in our prior correspondence related to this subpoena, the information and
documents sought by the Proposition 8 Proponents are the same information and documents

being requested of the Proposition 8 Proponents by Plaintiffs. The discovery requests served on your organization mirror the requests served on Defendant-Intervenors with the significant caveat that the Proposition 8 Proponents have heretofore narrowed these requests in an attempt to exclude what we have argued to the Court in a Motion for a Protective Order are constitutionally protected documents that should be excluded from discovery on First Amendment, relevance, and burden grounds. I am now writing to inform you that on October 1, 2009, the Court issued an order granting in part and denying in part that motion. See Doc. No. 214 (attached hereto).

With respect to the relevance and burdensomeness objections, the Court granted the
motion in part as it applied to Request No.8, holding that the Request "is broader than necessary to obtain all relevant discovery," and directing Plaintiffs to "revise request no 8 to target those communications most likely to be relevant." ld. at 15-16. With respect to the remainder of the Proposition 8 Proponents' relevance and burdensomeness objections, the motion was denied. ld. at 17. In accordance with the Court's instructions, Plaintiffs subsequently revised their Request No.8, which is contained in the letter attached hereto from Ethan Dettmer to Nicole Moss dated October 5, 2009. Accordingly, we are likewise revising our Request NO.8 to your organization to mirror the revised request that has been served on the Proposition 8 Proponents.

We do not, however, expect you at this time to produce any documents other than those that have been previously requested and that are not included without our stated objections.

15100 N. 90TH STREET' SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WWW.TELLAF.ORG

~r ,; ,:,' ._,i,. ~~'.',' ,¡ '."'( ':~'" "':.':.~ ,ì ,..~i,',',~ ,: l~,r.\.',.,..~t\. :.1:' .,').l:.,..""~. '.' i ," ('" '

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page25 of 28

Although the Court has denied our request for a Protective Order and thus production of such documents may ultimately be required, we are currently seeking a stay of the Court's October 1 Order as we pursue an appeal in the Ninth Circuit. A copy of the Notice of Appeal fied by the Proposition 8 Proponents is attached hereto. Once again, while the Proposition 8 Proponents will urge the District Court and/or Ninth Circuit to grant our request for a stay, should this request be denied or should we ultimately lose our appeal, we would expect your organization to produce the same materials that the Court requires us to produce. We will let you know immediately should that occur. For now, we simply wanted to inform you of these developments so that you
can prepare for the eventuality that we wil need to seek additional documents through this

subpoena.

Thank you for your assistance in this matter.
Sincerely,

~.
cc: All counsel of record

James A. Campbell

Encl

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Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page26 of 28

10/29/09 Letter to Equality California

Case3:09-cv-02292-VRW Document472-3

ALLIACE DEFENSE FUND
Defending Our FirAt Liberty

.t

Filed01/15/10 Page27 of 28

October 29,2009

Via United States First-Class Mail and Electronic Mail
Win Marriage Back, A Project of

Equality California

(formerly known as No on 8 - Equality California) c/o Carolyn Chang Fenwick & West, LLP 801 California Street Mountain View, CA 94041
Re: Perry v. Schwarzenegger, U.S.D.C., N.D. CaL., C-09-2292 VRW
Dear Ms. Chang:
I am writing once again concerning the subpoena to produce documents and

electronically stored information previously issued to your organization (or the organization that you represent) by the Proposition 8 Proponents and ProtectMarriage.com (collectively referred to
as the "Proposition 8 Proponents") in connection with the above-captioned case, Perry v.

Schwarzenegger. As this case has progressed, the Proposition 8 Proponents have endeavored to keep you informed regarding discovery developments affecting the scope of the requests in the subpoena served on your organization. On October 23,2009, shortly after we last communicated with you, we received the attached order from the district court in which this case is pending.
For the reasons stated in the Proposition 8 Proponents' motion for a protective order (Doc # 187, Doc # 197) and in prior correspondence with you, we believe that some of the information

requested in our subpoena (which mirrors the document requests served by Plaintiffs on the Proposition 8 Proponents) should not be the subject of discovery and should not factor into the Court's consideration of this case. We have, however, made clear from the outset of correspondence with you that our expectation is that your organization wil need to produce the same types of documents and information that the Proposition 8 Proponents are required to
produce.

In light of the Court's orders of October 23, 2009, and October 1, 2009, denying a
categorical claim of First Amendment privilege and requiring the Proposition 8 Proponents to submit claims of privilege to the Court on a document-by-document basis, see Doc # 237 at 4-7 (citing Kerr v. United States District Court, 426 U.S. 394 (1976)), we now have no choice but to seek from your organization the types of documents and information that the Cour has deemed relevant to its consideration of this case. Thus, unless or until you or we obtain judicial relief from the type of discovery we are requesting, we must withdraw the narrowing interpretations on the document requests that were served upon you and insist that you produce the documents and
information requested in accordance with the Federal Rules of

Civil Procedure.
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15100 N. 90TH STREET. SCOTTSDALE, ARIZONA 85260 . PHONE [phone] FAX [phone] WEB WW.TELLAF.ORG

Case3:09-cv-02292-VRW Document472-3

Filed01/15/10 Page28 of 28

To facilitate a discussion on logistics going forward, please let me know by November 2, 2009, how you intend to comply with your discovery obligations.

Than you for your assistance in this matter.

~~~
Sincerely,

James A. Campbell

cc: All counsel of record
Encl.

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