Perry et al v. Schwarzenegger et al

Filing 596

Transcript of Proceedings held on 01/20/10, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber James Yeomans, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/13/2010. (jjy, COURT STAFF) (Filed on 2/12/2010)

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1 2 3 4 5 6 7 8 9 10 11 12 13 TRANSCRIPT OF PROCEEDINGS 14 APPEARANCES: 15 FOR PLAINTIFF: 16 17 18 19 FOR DEFENDANT: 20 21 BY: 22 23 REPORTED BY: 24 25 JAMES YEOMANS, CSR 4039, RPR OFFICIAL REPORTER COMPUTERIZED TRANSCRIPTION BY ECLIPSE JAMES YEOMANS - OFFICIAL REPORTER - [phone] LAW OFFICES OF VINCENT P. MC CARTHY W. CHESTNUT HILL ROAD LINCHFIELD, CT 06759 VINCENT P. MC CARTHY ATTORNEY AT LAW BY: GIBSON DUNN & CRUTCHER LLP 1050 CONNECTICUT AVE., NW WASHINGTON, DC 20036 MATTHEW DEMPSEY MC GILL ATTORNEY AT LAW PAGES 1 - 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JOSEPH C. SPERO, MAGISTRATE JUDGE KRISTIN M. PERRY, ET AL., ) ) PLAINTIFFS, ) ) VS. ) ) ARNOLD SCHWARZENEGGER, ) ET AL., ) ) DEFENDANTS. ) ____________________________)

NO. C 09-2292 VRW (JCS)

SAN FRANCISCO, CALIFORNIA WEDNESDAY, JANUARY 20, 2010

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WEDNESDAY, JANUARY 20, 2010

1:30 P.M.

(THE FOLLOWING PROCEEDINGS WERE HEARD IN OPEN COURT:) THE CLERK: CALLING CASE C 09-2292, KRISTIN PERRY

VERSUS ARNOLD SCHWARZENEGGER. COUNSEL, PLEASE STATE YOUR APPEARANCES. MR. MC CARTHY: NON-PARTY WITNESSES. THE COURT: IS MC PHERSON AND GARLOW? PASTOR MC PHERSON. VINCE MC CARTHY FOR THE MOVEMENT AND

MR. MC CARTHY: THE COURT:

MR. MC CARTHY, THANK YOU. MATTHEW MC GILL FOR THE PLAINTIFF, YOUR

MR. MC GILL: HONOR. MS. SCHILLER: THE PLAINTIFFS. THE COURT:

JOSH SCHILLER ASSISTING MR. MC GILL FOR

THANK YOU VERY MUCH.

WE'RE HERE, AS I UNDERSTAND IT, ON THE TWO MOTIONS THAT WERE FILED BY THE PASTORS. AND I'VE BRIEFLY REVIEWED THE

PAPERS THAT MR. MC CARTHY FILED AND THE OPPOSITION, I GUESS, TO THAT, THOSE PAPERS. AND, I GUESS, MY FIRST QUESTION IS TO THE PLAINTIFFS. I'M NOT ENTIRELY SURE, BUT IT STRUCK ME I WANTED TO UNDERSTAND THE FEEL OF THE QUESTIONS WE'RE TALKING ABOUT, BECAUSE NO QUESTIONS HAVE BEEN ASKED OF THIS WITNESS, THESE WITNESSES YET. AND, I SUPPOSE, I JUST SEE WHAT THE QUESTIONS COME UP, BUT MY GUESS IS THAT THE REASON WE'RE DOWN BEFORE ME IS SO THAT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DOESN'T HAPPEN.

WHAT ARE YOU GOING TO ASK THIS WITNESS?

IT LOOKED LIKE YOUR JUST ASKING HIM AUTHENTICATION QUESTIONS. MR. MC GILL: I THINK, THAT'S RIGHT. AT THIS POINT

WHAT AMONG THE 20,000 OR MORE DOCUMENTS THAT HAVE BEEN PRODUCED TO US OVER THE LAST 72 HOURS, A NUMBER OF THE DOCUMENTS WERE -SOME WERE AUTHORED BY PASTOR GARLOW, SOME WERE AUTHORED BY PASTOR MC PHERSON. WE ALSO HAVE DISCOVERED FROM PUBLIC SOURCES SUCH AS PASTOR GARLOW'S WEBSITE, PASTOR MC PHERSON'S WEBSITE MESSAGES ABOUT THE YES, RELATING TO THE YES ON 8 CAMPAIGN. THERE'S NO REAL DISPUTE THAT PASTOR GARLOW AND PASTOR MC PHERSON WERE FORCEFUL AND VERY PUBLIC ADVOCATES IN SUPPORT OF PROPOSITION 8. THERE'S NO REAL DISPUTE ABOUT THAT AND WE'VE

COLLECTED DOCUMENTS THAT RELATE TO THEIR MESSAGES IN SUPPORT OF THE YES ON 8 CAMPAIGN. WE ALSO NOW RECEIVED AS PART OF THIS VERY LARGE RECENT PRODUCTION A NUMBER OF DOCUMENTS THAT DEMONSTRATE THEY WERE NOT ACTING INDEPENDENTLY, BUT RATHER VERY MUCH IN COORDINATION WITH PROTECTMARRIAGE.COM. THE COURT: IN TERMS OF THE QUESTIONS YOU WILL ASK OF

THESE PARTICULAR WITNESSES, THEY ARE ALL -- ARE YOU GOING TO ASK THEM WITH RESPECT TO THESE DOCUMENTS AND/OR VIDEOTAPES, YOU WERE GOING TO ASK THEM WHAT KIND OF QUESTIONS? IS IT ALL QUESTIONS OF THE NATURE, IS THAT YOUR NAME, JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DID YOU RECEIVE THIS, DID YOU AUTHOR THIS, IS THAT YOU THAT APPEARS TO THIS VIDEOTAPE, DOES THE VIDEO ACCURATELY REFLECT WHAT OCCURRED ON THAT DATE, IS IT ALL AUTHENTICATION KIND OF QUESTIONS? MR. MC GILL: TYPE QUESTIONS. I THINK, IT'S PRINCIPALLY AUTHENTICATION

I DON'T KNOW WHAT THE DOCUMENTS THAT WE'RE

STILL REVIEWING MAY YET REVEAL, BUT AS OF NOW, AND THE REASON WE ISSUED TRIAL SUBPOENAS TO THEM WAS TO AUTHENTICATE, FOR THE PURPOSE OF AUTHENTICATING DOCUMENTS THAT WE HAVE IN OUR POSSESSION AND THAT WE HAVE RECEIVED FROM THE OTHER SIDE. AND WE OFFERED IN OUR OPPOSITION TO THE MOTION TO QUASH, WE DID, INDEED, OFFER TO WITHDRAW THE SUBPOENAS IF PASTOR GARLOW AND PASTOR MC PHERSON WOULD AUTHENTICATE AND DEEM ADMISSIBLE THESE DOCUMENTS. THE COURT: THEY COULDN'T DO THAT THEMSELVES ANYWAY. BUT NOT TO INTERPOSE OBJECTION TO ITS

MR. MC GILL: ADMISSIBILITY. THE COURT:

I DON'T KNOW THEY HAVE ANY STANDING TO

OBJECT TO ADMISSIBILITY, BUT . . . MR. MC GILL: WALKER. THE COURT: THAT. I CAN UNDERSTAND THAT. MAYBE WE'LL GET TO THEY ARE IN THE PROCEEDING BEFORE JUDGE

THE MOTION IS NOT WITH RESPECT TO DOCUMENTS, IT'S WITH

RESPECT TO TESTIMONY. THERE'S A TRIAL SUBPOENA THAT'S REQUIRING THEM TO JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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APPEAR FOR TESTIMONY, I'M TRYING TO FIGURE OUT WHAT'S AT ISSUE WITH RESPECT TO THE TRIAL SUBPOENAS. SO IT IS YOU DON'T INTEND TO ASK THEM ANYTHING ABOUT THEIR PERSONAL BELIEFS WITH RESPECT TO THE ISSUES THAT ARE INVOLVED IN THE TRIAL? MR. MC GILL: THE COURT: NO.

YOU DON'T INTEND TO ASK THEM ANY QUESTIONS I DON'T

WITH RESPECT TO -- WELL, I WON'T GO THERE, TOO FAR. KNOW HOW -- I DON'T HAVE ENOUGH INFORMATION.

AND, I TAKE IT, WHETHER IT WAS APPROPRIATE OR NOT, THAT THE PASTORS WERE UNWILLING TO STIPULATE THAT THEY WOULDN'T BE CALLED TO TESTIFY, BUT THEY WOULDN'T INTERPOSE ANY OBJECTION TO THE ADMISSIBILITY OF THE DOCUMENTS THAT WERE PRODUCED TO THE PLAINTIFFS FROM OTHER SOURCES? MR. MC CARTHY: YOUR HONOR, WHAT HAS CAUSED US

CONCERN, IS THE OFFER THAT WAS MADE HERE TO WITHDRAW THE SUBPOENA IF THE MOVEMENTS AGREED TO THE ADMISSION OF ANY DOCUMENTS THEY AUTHORED, RECEIVED OR ANY VIDEO IN WHICH THEY APPEARED, THAT IS SO ENORMOUSLY BROAD THAT NO ONE IN THEIR RIGHT MIND WOULD CONCEDE TO THE ADMISSIBILITY OF THOSE THINGS. FOR EXAMPLE, IF I WAS SHOWN A VIDEO THAT I APPEARED IN FOR TWO MINUTES, OR ONE MINUTE, OR FIVE MINUTES, OR 10 MINUTES, BUT HAD NEVER SEEN BEFORE, NEVER EVEN KNEW IT WAS BEING VIDEOED, HOW CAN IDENTIFY THAT OR AUTHENTICATE THAT? THE COURT: HE'S ASKING MUCH LESS THAN THAT. HE'S

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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ASKING YOU JUST NOT TO OBJECT.

HE'S NOT EVEN ASKING YOU TO

STIPULATE TO THEIR ADMISSIBILITY, HE'S JUST SAYING DON'T OBJECT. MR. MC CARTHY: HONOR. TWO DIFFERENT CONSIDERATIONS, YOUR

ONE, IS AS TO AUTHENTICITY, AND WE RECEIVED ON SUNDAY A

THREE-RING BINDER OF -- FILLED WITH 30 DISKS THAT WE WERE ASKED TO SEND DOWN TO OUR CLIENT AND HAVE OUR CLIENT AUTHENTICATE. I SAID THERE'S NO WAY I CAN DO THAT IT'S SUNDAY AND TOMORROW MARTIN LUTHER KING DAY, SO THERE'S NO WAY I CAN GET THESE TO MY CLIENT IN SAN DIEGO. SO I RECEIVED A CALL FROM AN ATTORNEY FROM PLAINTIFF'S LAW FIRM YESTERDAY WITH A MUCH SMALLER GROUPING OF DISKS, ONLY EIGHT DISKS, AND TOGETHER WITH THE SAME DOCUMENTS THAT WERE IN THE PACKAGE I RECEIVED ON SATURDAY. I AGREED TO SEND THOSE TO MY CLIENT OVERNIGHT AND HAVE THEM REVIEW THEM FOR AUTHENTICITY AND I SAID I WOULD GET BACK TO THEM AS SOON AS THINK THEY HAD REVIEWED THEM. I TOLD COUNSEL TODAY IN COURT THAT MY CLIENTS, ONE OF MY CLIENTS HAS ALREADY REVIEWED SOME OF THEM AND THE SECOND CLIENT HAS THEM AND IS REVIEWING THEM RIGHT NOW. SO WE ARE

PERFECTLY WILLING TO REVIEW ALL OF THE TAPES AND DOCUMENTS FOR AUTHENTICITY. MY CLIENTS ARE GOING TO TRY TO GET THEM BACK BY FEDEX, SO I CAN GET THEM TOMORROW MORNING, IF THEY CAN, BUT THEY'RE DOING EVERYTHING THEY CAN TO COMPLY WITH WHAT THE PLAINTIFFS JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WANTED THEM TO DO. THE SECOND QUESTION, HOWEVER, YOUR HONOR, IS ADMISSIBILITY. AND AS TO THAT WE HAD AGREED, AND COUNSEL FOR

THE PLAINTIFFS HAD ALSO AGREED, THAT WE COULD RETAIN ANY OBJECTIONS WE HAD AS TO ADMISSIBILITY. AND WE DO HAVE QUESTIONS AS TO ADMISSIBILITY, NUMBER ONE, BECAUSE WE DON'T KNOW WHAT THE DOCUMENTS ARE. SO, YOU

KNOW, WE DON'T KNOW WHAT WE WOULD DO UNLESS WE SEE THE DOCUMENT IN QUESTION. SECOND, IF THE QUESTIONS THAT ARE ASKED OF MY CLIENT DOES GO TO MY CLIENT'S BELIEFS -THE COURT: TO THAT QUITE YET. QUESTION. ALL HE'S SAYING TODAY, IS YOUR CLIENTS DON'T EVEN HAVE TO STIPULATE TO AUTHENTICITY, AS I UNDERSTAND IT, WHAT THEY -WHAT HE'S ASKING YOU TO DO IS JUST TO AGREE THEY WON'T OBJECT. MR. MC CARTHY: DOCUMENTS. THE COURT: CONCEIVABLE BASIS? MR. MC CARTHY: THE COURT: YOU MEAN, AS TO AUTHENTICITY? WHY DO YOU NEED TO REVIEW THEM? ON WHAT WE'RE WILLING TO REVIEW THOSE CAN I INTERRUPT YOU? I DON'T WANT TO GET

BECAUSE WE MAY NOT EVEN NEED TO GET TO THAT

AS TO ANYTHING. SURE.

MR. MC CARTHY: THE COURT:

CLIENTS ARE NOT PARTIES TO THIS CASE, THEY

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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HAVE NO STANDING IN GENERAL TO OBJECT TO THE ADMISSIBILITY OF ANYTHING THAT GOES INTO EVIDENCE IN THE CASE, AS A GENERAL PROPOSITION THAT'S THE CASE. ON RARE OCCASIONS, ON RARE OCCASIONS THERE ARE SECRET THINGS THAT HAVE ALREADY NOT YET BEEN MADE PUBLIC THAT SOMEONE MIGHT, BUT SINCE THE DOCUMENTS AND THE VIDEOS THEY GOT WERE IN SOMEONE ELSE'S POSSESSION, SEEMS UNLIKELY THAT THEY WOULD EVER HAVE AN OBJECTION THAT THEY COULD HAVE STANDING TO MAKE IN A TRIAL. MR. MC CARTHY: BUT THEY HAVE ASKED US TO AUTHENTICATE

TAPES AND WE'RE WILLING TO DO THAT. THE COURT: DO THAT. MR. MC CARTHY: THE COURT: WE MIGHT NOT, WE ARE WILLING -I UNDERSTAND, MAYBE YOU DON'T EVEN HAVE TO

I APPRECIATE THAT. -- TO REVIEW THEM.

MR. MC CARTHY: THE COURT:

I'M TRYING TO SOLVE A PROBLEM AND I MAYBE

ABLE TO SHORTCUT THIS AND MAKE YOUR LIFE EASIER. AND SO, IF I UNDERSTAND YOU CORRECTLY, MR. MC GILL, I MAY NOT BE, WHAT YOU SAID WAS, THAT IF THESE TWO PASTORS WILL AGREE NOT TO OBJECT, NOT STIPULATE TO ANYTHING, NOT AGREE THEY'RE AUTHENTIC, NOT AGREE THAT THEY'RE, YOU KNOW, AND GET THEM IN THROUGH SOMETHING ELSE, I ASSUME, IS THAT WHAT YOU'RE TALKING ABOUT? MR. MC GILL: OUR CONCERN WE'RE TALKING ABOUT, WELL,

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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JUST TAKE ONE PART DYNAMIC EXAMPLE OF WHAT WE'RE TALKING ABOUT. THE SO-CALLED VIDEO TRANSMISSIONS TO THOUSANDS OF PASTORS IN WHICH PASTOR GARLOW AND PASTOR MC PHERSON APPEARED, OKAY, OUR CONCERN WAS, AND THE REASON WE ISSUED THE SUBPOENAS, WHAT IF THE DEFENDANT INTERVENORS OBJECT TO THE AUTHENTICITY OF THESE DOCUMENTS, OF THESE VIDEOS. THE COURT: THAT'S WHY I SAID THESE INDIVIDUALS ARE

NOT THE PEOPLE WHO CAN PROVIDE YOU THE STIPULATION YOU NEED. MR. MC GILL: THE COURT: NO, I UNDERSTAND THAT.

SO STIPULATION IS NOT GOOD ENOUGH. I AGREE WITH COUNSEL. I UNDERSTAND THE PROBLEM. I JUST

MR. MC CARTHY: THE COURT:

WAIT.

DON'T UNDERSTAND HOW YOUR PROPOSAL, WHICH WAS THAT SOMEBODY STIPULATE THAT THESE ARE AUTHENTIC. MR. MC GILL: THE PROPOSAL MADE, I'M SORRY IF I WAS

NOT CLEAR OR IF I MISSPOKE, THAT THE PROPOSAL MADE WHICH ON PAGE THREE OF OUR OPPOSITION, IS THAT IF THE PROPONENTS AGREE TO THE ADMISSION -THE COURT: BUT THEY WON'T, RIGHT? SO FAR SO GOOD UPSTAIRS, THEY HAVE NOT

MR. MC GILL:

YET OBJECTED TO THE AUTHENTICITY OF OR OTHERWISE THE ADMISSION OF THE DOCUMENTS THAT ARE GOING INTO EVIDENCE, BUT MR. -THE COURT: YOU ARE CONCERNED ONCE SOMETHING CAME UP

IN TRIAL, I APPRECIATE THAT. MR. MC CARTHY: AS TO AUTHENTICITY AS WELL. I

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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RESPECTFULLY DISAGREE THERE MAYBE, FOR EXAMPLE, A DOCUMENT THAT PURPORTS TO BE ONE IN WHICH MY CLIENT IS DOING SOMETHING, FOR EXAMPLE, AND IT COMBINES ANOTHER PIECE OF TAPE FROM ANOTHER DOCUMENT TO MAKE IT LOOK LIKE MY CLIENT IS DOING SOMETHING THAT MY CLIENT ISN'T, MY CLIENT MAY SAY TO ME, MR. MC CARTHY, THAT IS NOT AN AUTHENTIC TAPE, THAT'S NOT AN AUTHENTIC REPRODUCTION OF WHAT HAPPENED ON THAT DATE IN QUESTION. IF THAT HAPPENED, IF THE TAPE WAS TAMPERED WITH, THOSE WOULD BE GROUNDS FOR OBJECTION AS TO AUTHENTICITY. THE COURT: BUT NOT BY YOU. I THINK THEY WOULD BE.

MR. MC CARTHY: THE COURT:

NON-PARTY DOESN'T HAVE STANDING TO OBJECT

ON THE BASIS OF AUTHENTICITY. MR. MC CARTHY: THE COURT: REASON. ALL RIGHT.

THAT'S A PARTY PROBLEM BECAUSE HERE'S THE

NONE OF THESE DOCUMENTS ARE YOURS, NONE OF THESE TAPES

ARE YOURS, YOU -- HE GOT THEM FROM SOMEONE ELSE, AND SO THEY'VE ALREADY BEEN PRODUCED TO THESE FOLKS. AND IN TERMS OF ADMISSION AT TRIAL, THE ONLY PERSON WHO, IN MY JUDGMENT, HAS STANDING TO OBJECT ON AUTHENTICITY GROUNDS TO SOMETHING TO BE ADMITTED AT TRIAL IS A PARTY. IF THE PARTY DOESN'T OBJECT, THE WITNESS DOESN'T HAVE ANY STANDING. MR. MC CARTHY: DOCUMENT. JAMES YEOMANS - OFFICIAL REPORTER - [phone] SO THEN WE KNOW IT'S NOT AN AUTHENTIC AND

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THE COURT:

IF THE PROPONENTS WANT IT IN, IT GOES IN. THEY MAY NOT WANT TO

MAYBE GOOD JUDGMENT REASON FOR DOING IT.

FIGHT THAT BATTLE RIGHT NOW BECAUSE IT WILL INTERFERE WITH OTHER PLANS THEY HAVE FOR THE CASE, BECAUSE THEY HAVE MORE IMPORTANT THINGS TO TAKE UP WITH THE JUDGE, THEIR STRATEGY MORE LIKELY TO OBTAIN VICTORY, ET CETERA, BUT IT'S A PARTY QUESTION. IT IS SOMETIMES, I CAN'T REMEMBER THE LAST TIME I HAD SOMEONE, A NON-PARTY OBJECTING TO A DOCUMENT. I SUPPOSE, I

COULD ENVISION SOMETHING ATTORNEY-CLIENT PRIVILEGE DOCUMENT THAT SOMEHOW -MR. MC CARTHY: THE COURT: YES, I HAVE SEEN THAT BEFORE. SO

OTHER THAN THAT I CAN'T THINK OF ONE.

I JUST, YOU KNOW, AS FAR AS IT GOES, IT SOUNDS LIKE -- LET ME TAKE IT A STEP AT A TIME. THE QUESTIONS THAT YOU ANTICIPATE ASKING NOW, THAT THE PLAINTIFFS ANTICIPATE ASKING NOW RELATE TO THE AUTHENTICITY OF DOCUMENTS AND VIDEOTAPES IN WHICH THESE TWO WITNESSES, THE PASTORS, PURPORTEDLY APPEAR, EITHER AS AUTHORS, OR RECIPIENT, OR ON THE VIDEOTAPE? MR. MC CARTHY: APPEARED OR RECEIVED. THEIR NAME ON

THE DOCUMENTS AS RECIPIENT, OR AUTHOR, OR THEY ARE IN SOMEWHAT -- OR THEY MAY, OR THEY ACTUALLY APPEAR ON A VIDEOTAPE. THE COURT: THE QUESTIONS YOU ANTICIPATE OF THESE

WITNESSES RELATE TO AUTHENTICATION OF THOSE MATERIALS; IS THAT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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RIGHT? MR. MC GILL: THE COURT: THAT'S CORRECT.

SO, AND YOU DON'T HAVE ANY OBJECTION TO

YOUR CLIENTS AUTHENTICATING THESE MATERIALS, FROM THE WITNESSES, FROM THE PASTORS' POINT OF VIEW. YOU DON'T HAVE ANY

OBJECTION TO YOUR CLIENTS EITHER SAYING THEY'RE AUTHENTIC OR SAYING THEY'RE NOT. SAYING, YES THAT'S MY NAME, YES I WAS

THERE, NO I WASN'T THERE, THE AUTHENTICATION KIND OF QUESTIONS. THE PASTORS DON'T HAVE ANY OBJECTION TO THOSE KIND OF QUESTIONS, ACTUALLY, LOOK INTO THAT; IS THAT RIGHT? MR. MC CARTHY: THE COURT: I CONCEDE TO WHAT YOUR HONOR HAS SAID. SO FAR

SO FAR THERE'S NO DISAGREEMENT.

DOESN'T SEEM LIKE THERE'S ANY DISAGREEMENT, AS FAR AS WHAT IS GOING ON, AS FAR AS THE TESTIMONY OF THE PASTORS IS CONCERNED. MR. MC GILL: I THINK, THAT IS RIGHT, YOUR HONOR. IF

THERE IS NO OBJECTION TO THE AUTHENTICITY OF THE DOCUMENTS THAT WE INTEND TO INTRODUCE INTO EVIDENCE, IF THERE IS NO OBJECTION BY THE PROPONENTS. THE COURT: ANYWAYS. MR. MC GILL: THERE WOULD BE NO REASON I CAN ENVISION THEN YOU'LL NEVER GET TO THEM, I THINK,

RIGHT NOW WE WOULD CALL THEM. THE COURT: ALL RIGHT. SO, JUST SO WE'RE CLEAR ON

THAT, WITH RESPECT TO THE MOTION TO QUASH THE TRIAL SUBPOENAS, GIVEN THAT REPRESENTATION ABOUT THE SCOPE OF THE QUESTIONING, I JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WOULD DENY THE MOTIONS TO QUASH. NOW, THINGS HAPPEN AND YOU MAY CHANGE YOUR MIND AND YOU MAY HAVE A DIFFERENT ARGUMENT. AT SOME POINT IF THEY

DECIDE, WELL, I DO WANT TO REALLY GET INTO THE PERSONAL BELIEFS OF THE PASTORS, I WANT TO TALK ABOUT WHAT HE SAID TO THE OTHER CHURCH ELDERS, HOW THEY WOULD FORMULATE A MESSAGE THING THAT MIGHT IMPLICATE A FIRST AMENDMENT QUESTION? MR. MC CARTHY: THE COURT: IF THAT HAPPENS I WOULD RESERVE.

THEN YOU'LL RENEW YOUR MOTION TO QUASH IT,

IS THE QUESTION BEFORE THE COURT, IS ON THE QUESTIONS THAT, I MEAN, WITH RESPECT TO THE QUESTIONS THAT ARE ANTICIPATED. AS

TO THE QUESTIONS THAT ARE ANTICIPATED THE MOTION IS DENIED. NOW, SAME THING I DENIED IT WE WENT FORWARD AND SEE WHAT HAPPENS AND YOU SEE THE QUESTIONS, IF THEY'RE OBJECTIONABLE YOU RAISE THEM, SO IF THEY GET BEYOND THE SCOPE THEN WE'LL TAKE THAT UP. NOW, I'M A LITTLE CONCERNED ABOUT WHAT HAPPENS THIS MORNING IN TRIAL THAT BROUGHT US HERE, AS I UNDERSTAND IT, AND BECAUSE I DON'T KNOW WHETHER I'M SUPPOSED TO ADDRESS IT OR NOT. MR. MC GILL: WOULD. THE COURT: I DON'T KNOW WHETHER THAT'S MY TASK AND I LET ME JUST START TALKING WE WOULD CERTAINLY APPRECIATE IT IF YOU

DON'T KNOW THAT'S ANYONE'S TASK. ABOUT IT A LITTLE BIT.

AS I UNDERSTAND IT, WITH RESPECT TO ONE OF YOUR EXPERT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WITNESSES, I GUESS -MR. MC GILL: THE COURT: VIDEOTAPE. MR. MC GILL: I THINK, THE OBJECTION WAS, SURFACED THAT'S CORRECT.

-- YOU WERE GOING TO SHOW A, I GUESS, A

FIRST IN RELATIONSHIP TO A DOCUMENT. THE COURT: A DOCUMENT ON WHICH ONE OF THE PASTORS'

NAMES APPEAR, PRESUMABLY, AS AUTHOR OR RECIPIENT? MR. MC GILL: THE COURT: THAT'S CORRECT.

YOU WERE GOING TO HAVE THE EXPERT WITNESS

TESTIFY ABOUT THAT DOCUMENT? MR. MC GILL: THE COURT: ABOUT THE DOCUMENT, YES.

AND, I GUESS, I'M WONDERING WHETHER OR NOT

NOW THAT WE'VE HAD THIS DISCUSSION, YOU AGREE WITH ME THAT WITH RESPECT TO DOCUMENTS, VIDEOS, ET CETERA, THEY GOTTEN SOME FROM SOMEWHERE ELSE, SOMEONE ELSE, AS TO THAT YOU DON'T HAVE THE ABILITY TO OBJECT, YOU DON'T HAVE A PROPER OBJECTION. MR. MC CARTHY: YOUR HONOR. THE COURT: NO, I UNDERSTAND IT, BUT IN TERMS OF I WASN'T OBJECTING TO AUTHENTICITY,

ADMISSIBILITY, WHY DO YOU HAVE AN OBJECTION? MR. MC CARTHY: BECAUSE THERE ARE SERIOUS, I BELIEVE,

FIRST AMENDMENT CONCERNS WITH PUTTING PASTORS' TESTIMONY, STATEMENTS, AND I DIDN'T KNOW WHAT WAS ON THAT DOCUMENT BECAUSE I'VE NEVER SEEN IT BEFORE. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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FOR ALL I KNEW IT COULD BE A SERMON, COPY OF A SERMON TO HIS CHURCH AND SOMETHING LIKE THAT BEING ADMISSIBLE AT A TRIAL, I FELT WAS -- WOULD BE NOT ONLY INADMISSIBLE, BUT SEND A CHILLING EFFECT THROUGH ALL PASTORS THROUGHOUT THE UNITED STATES, SO THEY COULD BE CALLED TO TESTIFY, TO BE SUBPOENAED. THE COURT: THIS IS NOT THEM, THIS IS NOT THEM. I DIDN'T KNOW, YOUR HONOR, WHETHER IT

MR. MC CARTHY:

CONTAINED TESTIMONY, INFORMATION. THE COURT: I SEE. YOUR -- I SEE, OKAY, SO LET ME PUT

THE ARGUMENT BACK TO YOU, SO I MAKE SURE I UNDERSTAND WHAT YOU'RE SAYING. WHAT YOU'RE SAYING, IS THAT ANYTIME A PASTOR SPEAKS ON SUBJECTS REGARDING HIS FAITH, THAT IS COVERED BY A PRIVILEGE OF FIRST AMENDMENT, NO MATTER WHO HAS A COPY OF THAT, NO MATTER WHERE THAT COPY IS, THAT PERSON MAY NOT INTRODUCE IN EVIDENCE AT TRIAL? MR. MC CARTHY: I THINK, IT WOULD HAVE TO BE -- TAKE AND UNDER

EXTRAORDINARY REASONS IN ORDER TO INTRODUCE THAT.

THE BALANCING TEST SET OUT BY THE NINTH CIRCUIT, THE NEED FOR THE INFORMATION WOULD HAVE TO BE EXTRAORDINARY VERSUS THE POTENTIAL HARM TO THE PASTOR AND ALL OTHER PASTORS WHO ARE GOING TO, OBVIOUSLY, BE CONCERNED ABOUT WHAT THEY SAY IN THE FUTURE. THE COURT: SO WE'RE TALKING ABOUT, JUST SO WE'RE

CLEAR, WE'RE NOT TALKING ABOUT THE SORT OF INTERNAL CAMPAIGN JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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COMMUNICATIONS, WE'RE TALKING ABOUT COMMUNICATION EITHER IN THE FORM OF VIDEOTAPE OR DOCUMENTS, THAT HAVE BEEN PROVIDED TO SOMEONE ELSE BECAUSE THAT'S WHERE THE PLAINTIFFS GOT THEM. SO SOME THIRD-PARTY NOT INVOLVED IN ANY CORE GROUP WITH THE PASTORS HAS THESE DOCUMENTS AND THEY COME INTO COURT WITH THESE DOCUMENTS AND THE PASTORS OBJECT, YOU CAN'T EXPOSE MY VIEWS ON THIS MATTER OF FAITH BECAUSE THAT WOULD CHILL MY SPEECH. MR. MC CARTHY: THE COURT: CORRECT.

LET ME -JUST TO CLARIFY SOMETHING. I MAY EVEN

MR. MC CARTHY:

HAVE HAD THAT DOCUMENT, BUT I WOULDN'T KNOW BECAUSE I DIDN'T SEE THE DOCUMENT THAT WAS BEING PROFFERED. I MEAN, I DIDN'T WANT TO SAY SOMETHING THAT ISN'T TRUE, I MAY -- I WAS FURNISHED WITH THE DOCUMENTS FROM THE OTHER SIDE, I DON'T KNOW IF THIS IS ONE OF THOSE 12. THE COURT: IS IT ONE OF THOSE 12? YES, TO MY UNDERSTANDING.

MR. MC GILL: THE COURT:

I ASSUME, THEY PROVIDE YOU WITH ALL THE

DOCUMENTS THEY WANTED. MR. MC GILL: UNPUNISHED. THE COURT: LET ME FINISH THIS. PERRY -- HERE'S MY THIS IS A CASE NO GOOD DEED GOES

PROBLEM WITH YOUR ARGUMENT.

PERRY WAS FACED WITH THE -- THE

SAME QUESTION IN A DIFFERENT CONTEXT, BUT A SIMILAR QUESTION, JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AND WHAT THEY HELD WAS, AS I UNDERSTAND IT, IS THAT COMMUNICATIONS ON MATTER OF FIRST AMENDMENT INTEREST TO THE WORLD ARE NOT PRIVILEGED FROM DISCLOSURE. THE ONLY THING THAT'S PRIVILEGED FROM DISCLOSURE IS PRIVATE INTERNAL CAMPAIGN COMMUNICATIONS, AND THAT TO THE CONTRARY IF THOSE COMMUNICATIONS WENT OUT TO SOMEONE OTHER THAN THESE LITTLE STRATEGY PEOPLE WHO ARE FORMULATING CAMPAIGN MESSAGE AND STRATEGIES, IF IT WENT OUTSIDE THAT GROUP IT'S NOT PRIVILEGED FROM DISCLOSURE. SO MY QUESTION TO YOU IS, IF THAT'S NOT PRIVILEGED FROM DISCLOSURE, HOW CAN IT BE THAT A PASTOR'S SERMON THAT GOES PRESUMABLY TO HIS FLOCK, OR WRITINGS, OR THE PASTOR'S VIEWS IN A 3,000 MEMBER VIDEO CONFERENCE, HOW CAN THOSE POSSIBLY BE PRIVILEGED FROM DISCLOSURE? UNDER THE FIRST AMENDMENT IF -- UNDER PERRY WHERE THEY SAID ANYTHING OUT -- COMMUNICATIONS WITH THAT LITTLE CORE GROUP OF STRATEGY AND FORMULATION OF MESSAGES WAS NOT PRIVILEGED, HOW CAN I POSSIBLY MAKE THAT LEAP? MR. MC CARTHY: TWO REASONS, YOUR HONOR. NUMBER ONE,

BECAUSE THE NINTH CIRCUIT WAS TALKING ABOUT THE CONFIDENTIALITY OF THE SPAN OF THE FIRST AMENDMENT, WHAT I'M TALKING ABOUT HERE IS SOMETHING VERY DIFFERENT AND THAT IS THE FIRST AMENDMENT RIGHTS OF SPEECH AND ASSOCIATION, BUT MAINLY SPEECH. AND THE SECOND -THE COURT: WHY IS THAT DIFFERENT FROM PERRY? THIS

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WAS THE SPEECH ASSOCIATIONAL RIGHTS OF THE INDIVIDUALS INVOLVED IN THE CAMPAIGN? MR. MC CARTHY: THEY WERE HELD TO BE CONFIDENTIAL IN A MY CONTEXT IS ACTUALLY AT A TRIAL

DISCOVERY CONTEXT AS WELL.

WHERE THE PERSON -- MY CLIENT IS BEING ASKED TO -THE COURT: NO, YOUR CLIENT ISN'T BEING ASKED TO DO

ANYTHING, JUST ABOUT DOCUMENTS AND MATERIALS THAT ARE NOT IN YOUR CLIENT'S POSSESSION. SOME THIRD-PARTY PRODUCED TO

PLAINTIFFS THEY WANT TO JUST INTRODUCE, COMPLETELY UNRELATED WHETHER YOUR CLIENT TESTIFIED. MR. MC CARTHY: BECAUSE IT MAY CONTAIN INFORMATION

THAT IS PART OF A SERMON OR SOME BIBLICAL EXPOSITION BY THE PASTOR TO MEMBERS OF HIS CHURCH THAT WOULD BE, I BELIEVE, PROTECTED BY THE FIRST AMENDMENT. THE COURT: PROTECTED THE DISCLOSURE FROM THE FIRST

AMENDMENT, IN OTHER WORDS, WHERE IS THE CASE THAT SAYS PUBLISHED SERMONS TO THE FLOCK OR WRITINGS THAT HAVE BEEN COMMUNICATED TO OTHERS AND PUT IN DOCUMENTS AND GIVEN TO THIRD-PARTIES ARE STILL PROTECTED FIRST AMENDMENT FROM DISCLOSURE AT TRIAL? MR. MC CARTHY: YOUR HONOR, I DON'T KNOW, THIS WAS A

PUBLISHED STATEMENT, I DON'T KNOW IT WAS GIVEN TO A THIRD-PARTY, THERE'S BEEN NO TESTIMONY OR EVIDENCE. THE COURT: HANDS, RIGHT? THE DOCUMENTS ARE NOT IN YOUR CLIENT'S

THEY'RE IN SOMEONE ELSE'S HANDS.

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MR. MC CARTHY: THE COURT:

I DON'T KNOW HOW THEY GOT THERE. SOMEHOW THEY GOT TO

I DON'T KNOW EITHER.

SOMEONE ELSE'S HAND AND SOMEONE ELSE DISCLOSED TO THE PLAINTIFF. MR. MC CARTHY: THE COURT: CORRECT.

YOU'RE THE OBJECTOR, DOESN'T MATTER

WHETHER YOU KNOW OR DON'T KNOW, YOU HAVE THE BURDEN OF PROVING YOUR OBJECTION. YOU HAVE TO SHOW ME HOW IT COULD BE THAT BECAUSE

THERE'S A FIRST AMENDMENT PRIVILEGE FROM DISCLOSURE.

AS FAR AS THE RECORD SHOWS, THE RECORD SHOWS THAT THE DOCUMENTS THAT ARE AT ISSUE ARE NOT IN YOUR CLIENT'S HANDS. MR. MC CARTHY: I SUPPOSE, SOMEONE IN THE CHURCH COULD

HAVE JUST TAKEN IT DOWN, OR RECORDED IT, OR SOMETHING LIKE THAT. I DON'T THINK THAT TAKES AWAY FROM THE OBJECTION. THE COURT: LET'S USE THAT AS AN EXAMPLE. SOMEONE

RECORDS A SERMON GIVEN TO ALL 300 MEMBERS OF THE CHURCH OR 500 MEMBERS, I DON'T KNOW HOW MANY PEOPLE, MAYBE 10,000, I DON'T KNOW. AND WRITES IT DOWN, TYPES IT UP AND SENDS IT AROUND TO

SOME OF THEIR PEOPLE WHO THINK THIS IS USEFUL INFORMATION FOR THEM TO KNOW FOR THEIR OWN FAITH, OR FOR THE CAMPAIGN, OR WHATEVER THEY THINK, YOU THINK THEY THEN CAN'T PUT IT INTO EVIDENCE AT TRIAL? YOU HAVE A PRIVILEGE, NOT JUST FROM DISCLOSING IT, BUT YOU CAN WALK IN AND TRY TO CENSOR THE PLAINTIFF FROM PUTTING IN AT TRIAL? JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MR. MC CARTHY:

YOU'RE NOT CENSORING IT, YOUR HONOR,

YOUR JUST -- YOU'RE MOVING TO PROHIBIT THAT DOCUMENT FROM BEING INTRODUCED INTO EVIDENCE. IF, IN PERRY, THE DOCUMENTS WERE NOT DISCOVERABLE FOR THE INSIDE GROUP, I WOULD THINK A FORTIORI A MEMBER THAT'S OUTSIDE THE INSIDE GROUP NOT A DEFENDANT IN THIS CASE WOULD HAVE MORE PROTECTION. THE COURT: WORKS THE OTHER WAY AROUND, ACTUALLY.

PERRY MAKES IT VERY CLEAR THERE'S LESS PROTECTION OUTSIDE THE COURTROOM. MR. MC CARTHY: MAY I ASK YOUR HONOR ONE QUESTION

ABOUT YOUR HONOR'S RULING? THE COURT: YES. IF THE MOTION TO QUASH IS BEING

MR. MC CARTHY:

DENIED, THAT'S UNDER THE UNDERSTANDING, I TAKE IT, CORRECT ME IF I'M WRONG, YOUR HONOR, THAT THE CLIENTS -- THAT THE -- WELL, WHY WOULD THE -- WHY WOULD GARLOW AND MC PHERSON NEED TO BE CALLED AT ALL? I'M SURE YOUR HONOR IS CORRECT. THEY MAY NOT NEED TO BE CALLED. IF THESE DOCUMENTS CAN BE ADMITTED

THE COURT:

MR. MC CARTHY:

WITHOUT GARLOW AND MC PHERSON, WHAT REASON WOULD THERE BE TO CALL THEM OTHER THAN TO ASK THEM QUESTIONS ABOUT -THE COURT: WHAT COUNSEL SAID I WILL, AND I'LL REPEAT

IT, AND I MAY GET IT RIGHT, IS THAT IF THEY DON'T HAVE ANY PROBLEMS FROM THE PROPONENTS GETTING THESE AUTHENTICATED AND JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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INTO EVIDENCE, THEN AT THE PRESENT TIME THEY WOULDN'T SEE ANY REASON TO ENFORCE THEIR TRIAL SUBPOENAS. RIGHT. MR. MC GILL: I THINK, THAT'S RIGHT. IF IT WOULD BE I GUESS, THAT'S

HELPFUL, WE COULD TAKE THE DISCUSSION OUT OF ABSTRACTION AND USE ONE OF OUR ACTUAL EXHIBITS. THE COURT: I DON'T KNOW, THERE MAYBE OTHERS. I WANT I

TO SEE WHETHER WE CAN DEAL WITH IT ON A GLOBAL BASIS.

JUST -- I DON'T HAVE -- I DON'T UNDERSTAND HOW -- AND YOU HAVEN'T CITED TO ME ANY CASES WHICH WOULD SUGGEST THAT A PASTOR'S COMMUNICATIONS JUST BECAUSE THEY ARE ABOUT FAITH ARE PRIVILEGED COMMUNICATIONS? MR. MC CARTHY: NO, WE HAVE CITED MANY CASES INCLUDING

THE TRUNK CASE TALKING ABOUT THE FIRST AMENDMENT RIGHTS OF INDIVIDUALS IN CASES AND HOW IMPORTANT IT IS TO PROTECT THAT RIGHT, SO. THE COURT: I COMPLETELY AGREE WITH THAT, BUT THERE

ARE, AS THE PERRY CASE MAKES CLEAR, THERE ARE FIRST AMENDMENT RIGHTS AND THEN THERE ARE FIRST AMENDMENT RIGHTS. AND IT IS A -- THE COURT GOES THROUGH THIS ANALYSIS IN ORDER TO DRAW A LINE AND SAY COMMUNICATIONS WHICH YOU'RE CLEARLY ENTITLED TO HAVE AS A MATTER OF FREE SPEECH, WHICH ARE OUTSIDE A PROTECTED AREA, CAN BE DISCLOSED. AND SO MY QUESTION -- AND SO THERE'S THE PERRY CASE DRAWS A LINE IN A PARTICULAR CASE. MY QUESTION WAS WHETHER OR

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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NOT THERE ARE ANY CASES WHICH HAVE EVER HELD THAT A PASTOR'S COMMUNICATIONS ARE PRIVILEGED FROM DISCLOSURE? NOT JUST PRIVILEGED FROM DISCLOSURE, PRIVILEGED FROM BEING ADMITTED AT TRIAL, EVEN THOUGH THEY'RE IN THE HANDS OF A THIRD-PARTY, NOT THE PASTOR? MR. MC CARTHY: THE COURT: I UNDERSTAND.

ANY CASE THAT SAYS THAT? I'M GOING TO ANSWER AND TELL YOUR

MR. MC CARTHY: HONOR THE TRUTH.

IS THAT, OUR RESEARCH PEOPLE, AND WE HAVE AN

EXCELLENT RESEARCH STAFF AT TACLJ, LOOKED FOR CASES AND COULD FIND NOT A SINGLE CASE WHERE A PASTOR WAS EVER ORDERED TO TESTIFY AS TO A SERMON HE HAD GIVEN IN THE UNITED STATES. THE COURT: THAT'S NOT THIS, YOU'RE MISSING MY POINT. YOUR

WE'VE ALREADY DEALT WITH YOUR CLIENT'S TESTIMONY.

CLIENT'S TESTIMONY, IF IT COMES RIGHT NOW, IS LIMITED TO QUESTIONS OF AUTHENTICATING THE DOCUMENTS, THEN THE VIDEOTAPES. AND IF IT GOES BEYOND THAT, WE'LL ADDRESS IT. MR. MC CARTHY: OKAY. SO BUT WITH RESPECT -- SO THE

PROBLEM -- WHAT I'M TRYING TO ALSO ADDRESS, IS TO FORESTALL FURTHER PROBLEMS IN THE TRIAL WITH RESPECT TO THE DOCUMENTS. YOU WON'T, YOUR HONOR, I UNDERSTAND WHAT YOUR HONOR HAS SAID. THE COURT: YOU DON'T ANTICIPATE OBJECTING ANYMORE IN

THE TRIAL TO ANY OF THE DOCUMENTS THAT THEY'RE TRYING TO INTRODUCE? JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MR. MC CARTHY: THE COURT:

NOT BASED UPON YOUR HONOR'S RULING. WITH THAT UNDERSTANDING, I THINK,

OKAY.

WE SHOULD PROCEED AND, YOU KNOW, IF AN ISSUE COMES UP, JUST COME ON BACK DOWN.

(PROCEEDINGS ADJOURNED.)

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

CERTIFICATE OF REPORTER I, THE UNDERSIGNED, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS. I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE OUTCOME OF THE CAUSE NAMED IN SAID CAPTION. THE FEE CHARGED AND THE PAGE FORMAT FOR THE TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL CONFERENCE. FURTHERMORE, I CERTIFY THE INVOICE DOES NOT CONTAIN CHARGES FOR THE SALARIED COURT REPORTER'S CERTIFICATION PAGE. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 9TH DAY OF FEBRUARY, 2010.

/S/

JAMES YEOMANS

___________________________________ JAMES YEOMANS, CSR, RPR

JAMES YEOMANS - OFFICIAL REPORTER - [phone]