Perry et al v. Schwarzenegger et al

Filing 493

Memorandum in Opposition to Plaintiffs' Motion for Leave to Reopen the Deposition of Ronald Prentice filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/20/2010)

Perry et al v. Schwarzenegger et al

Doc. 493

Case3:09-cv-02292-VRW Document493

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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 OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO REOPEN THE DEPOSITION OF RONALD PRENTICE Trial Date: January 11, 2010 Location: Courtroom 6, 17th Floor Judge: Chief Judge Vaughn R. Walker

DEFENDANT-INTERVENORS' OPPOSITION TO MOTION TO REOPEN PRENTICE DEPOSITION ­ CASE NO. 09-CV-2292 VRW

Dockets.Justia.com

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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

DEFENDANT-INTERVENORS' OPPOSITION TO MOTION TO REOPEN PRENTICE DEPOSITION ­ CASE NO. 09-CV-2292 VRW

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Having already deposed Ronald Prentice, the Chairman of ProtectMarriage.com, for 14 hours, Plaintiffs now request to depose Mr. Prentice for an additional seven hours on the eve of calling him as a witness at trial. Defendant-Intervenors ("Proponents") respectfully submit that Plaintiffs' request should be denied because it (1) is unnecessary and unduly burdensome, and (2) with one minor exception mischaracterizes Mr. Prentice's previous deposition testimony in an effort to create apparent inconsistencies between his testimony and several recently produced documents. ARGUMENT Mr. Prentice was deposed for seven hours on December 17, 2009 and another seven hours the following day both in his personal capacity and in his capacity as the Rule 30(b)(6) representative for ProtectMarriage.com. During those depositions, Mr. Prentice was questioned extensively about the management of the ProtectMarriage.com campaign and the extent of its involvement with other organizations.1 Plaintiffs have now identified approximately 25 recently-produced documents which are purportedly inconsistent with Mr. Prentice's testimony on these issues, and they are asking this Court for leave to depose Mr. Prentice about these documents for an additional seven hours. So Plaintiffs are not merely asking this Court to reopen Mr. Prentice's deposition; they are effectively asking this Court to double the amount of time allowed for depositions under the Federal Rules. See FED. R. CIV. P. 30(d)(1) ("Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours."). When considering whether to allow someone to be deposed for more than seven hours, courts "should begin with the presumption that the seven-hour limit was carefully chosen and that extensions of that limit should be the exception, not the rule." Roberson v. Bair, 242 F.R.D. 130, 138 (D.D.C. 2007); accord Graebner v. James River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989) (noting that "repeat depositions are disfavored, except in certain circumstances"). Rule 30(d)(2) allows such extensions of time only when consistent with Rule 26, which requires courts to limit the use of any
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Specific, highly-selective portions of the deposition transcripts addressing these topics were attached as Exhibits A and B to Rebecca Justice Lazarus' declaration filed in support of Plaintiffs' Motion for Leave to Reopen the Deposition of Ronald Prentice. Additional excerpts providing the full context and breadth of Mr. Prentice's testimony are attached as Exhibits A to D to Nicole Moss's declaration filed in support of Defendant-Intervenors' Opposition to Plaintiffs' Motion. 1
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discovery method if (1) the method is unreasonably cumulative or duplicative; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. See FED. R. CIV. P. 26(b)(2)(C). Requiring Mr. Prentice to prepare for and participate in a third full-day deposition would impose a far greater burden on Mr. Prentice than any benefit the Plaintiffs might gain through the deposition. Plaintiffs contend that allowing them to depose Mr. Prentice for another full day would allow them to "further streamline the testimony offered at trial in this case." Doc. #479, p. 2. But there is simply no reason that Plaintiffs cannot question Mr. Prentice about this small collection of documents at trial. Indeed, the parties agreed ­ at this Court's suggestion ­ to a similar procedure with regard to Defendant-Intervenors' First Amendment objections raised during depositions. See Jan. 6, 2010 Hr'g Tr. [Doc. #363], at 80:25-85:16. Plaintiffs have not offered any reason to treat this situation any differently. By contrast, the burden on Mr. Prentice and the Proponents would be substantial. Plaintiffs seek to depose Mr. Prentice on Thursday, January 21, 2010--the day before Plaintiffs are expected to call Mr. Prentice as a witness in trial. Requiring Mr. Prentice to prepare for and participate in a third seven-hour deposition at such a late date would severely limit his and correspondingly his counsel's ability to prepare for his appearance as a witness in this case. Under Rule 26, this undue burden on Mr. Prentice is, by itself, a sufficient basis for denying Plaintiffs' motion. The burden of this requested, seven-hour deposition is even more unjustified because, with the one exception that Mr. Prentice explains in his attached declaration, the testimony he gave at his deposition is not inconsistent with the documents Plaintiffs have attached in support of their motion. Plaintiffs have relied on highly selective excerpts of testimony that fail to provide the full context and breadth of testimony on many of the issues contained in the documents attached to their Motion. Moreover, Plaintiffs fail entirely to credit the fact that additional information on some of the topics referenced in their Motion was objected to on First Amendment grounds. Mr. Prentice, understandably and at the direction of counsel, did not provide certain information that was not known to be publicly available when responding to questioning from Plaintiffs' counsel. To the extent 2
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Plaintiffs now wish to delve further into these matters, over Proponents' standing-objection, they can do so on the stand as was agreed to at the hearing on January 6, 2010. See Jan. 6, 2010 Hr'g Tr. [Doc. #363], at 80:25-85:16. CONCLUSION In conclusion, the Proponents request that Plaintiffs' motion be denied. If the Court is inclined to allow Plaintiffs to further depose Mr. Prentice, Proponents request that the Plaintiffs receive no more than one hour to do so. This limitation would be proper in light of the small number of documents involved and to minimize the potential interference any such deposition would have on Mr. Prentice's trial preparation.

Dated: January 20, 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

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DEFENDANT-INTERVENORS' OPPOSITION TO MOTION TO REOPEN PRENTICE DEPOSITION ­ CASE NO. 09-CV-2292 VRW