Perry et al v. Schwarzenegger et al

Filing 613

Transcript of Proceedings held on 2-25-2010, before Judge Joseph C. Spero. Court Reporter/Transcriber Connie McCarthy Kuhl, Telephone number 415-431-2020. 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 6/8/2010. (ck, COURT STAFF) (Filed on 3/10/2010)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JOSEPH C. SPERO, MAGISTRATE JUDGE -------------------------------) ) KRISTIN M. PERRY, et al., ) ) Plaintiffs, ) ) v. ) ) ARNOLD SCHWARZENEGGER, ) et al., ) ) Defendants. ) ) -------------------------------)

No. C 09-2292 (JCS)

San Francisco, California Thursday, February 25, 2010 (61 pages)

TRANSCRIPT OF PROCEEDINGS 13 14 15 16 17 BY: 18 19 20 21 22 23 24 25 For Plaintiff/ Intervenor: (San Francisco) BY: For Defendants: (Schwarzenegger, et al.) BY: APPEARANCES: For Plaintiffs: Gibson, Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, California 90071 CHRISTOPHER D. DUSSEAULT ENRIQUE A. MONAGAS Mennemeier, Glassman & Stroud, LLP 980 Ninth Street Suite 1700 Sacramento, California 95814 LANDON BAILEY (via telephone) City Attorney's Office City Hall, Room 234 One Dr. Carlton B. Goodlett Place San Francisco, California 94102 MOLLIE M. LEE

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APPEARANCES (cont.): For Defendant/ Intervenor: BY: Cooper & Kirk, PLLC 1523 New Hampshire Avenue NW Washington, DC 20036 ANDREW PERRY PUGNO Remcho, Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, California 94577 JAMES C. HARRISON KARI L. KROGSENG Orrick, Herrington & Sutcliffe The Orrick Building 405 Howard Street San Francisco, California 94105 STEPHEN V. BOMSE ACLU of Northern California 39 Drumm Street San Francisco, California 94111 ELIZABETH O. GILL Fenwick & West, LLP 801 California Street Mountain View, California 94041 LYNN PASAHOW LAUREN E. WHITTEMORE

4 5 6 7 8 9 BY: 10 11 12 13 14 BY: 15 16 17 18 19 20 21 22 23 24 25 For Nonparty: (Equality CA) BY: For Nonparty: (ACLU) For Third Party: (CAEBR) BY:

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Friday, January 23, 2009 (9:28 a.m.) (In open court) DEPUTY CLERK: Calling case C 09-2292, Kristin M.

Perry versus Arnold Schwarzenegger. Counsel, please state your appearances. MR. PUGNO: Andrew Pugno, general counsel for the

defendant/intervenors. THE COURT: MR. BOMSE: Welcome, Mr. Pugno. Stephen Bomse, Orrick, Herrington &

Sutcliff, for the ACLU; together with Elizabeth Gill of the ACLU. THE COURT: Mr. Bomse, good afternoon. Kari Krogseng of Fenwick & West

MS. KROGSENG:

representing third party Californians Against Eliminating Basic Rights; and also James Harrison. THE COURT: Welcome. Lauren Whittemore, Fenwick & West, Also here is Lynn

MS. WHITTEMORE:

representing nonparty Equality California. Pasahow. THE COURT: Welcome.

MR. DUSSEAULT:

Christopher Dusseault, Gibson, Dunn &

Crutcher, on behalf of the plaintiffs; joined by my colleague Enrico Monagas. THE COURT: Welcome.

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MS. LEE:

Mollie Lee on behalf of plaintiff/intervenor

City and County of San Francisco. THE COURT: Welcome. And on the phone we have

MR. BAILEY:

Landon Bailey of the law firm Mennemeier,

Glassman & Stroud, appearing for the administration of the State of California. THE COURT: Okay. If and when you decide you want to It will be a little hard

speak, would you keep your voice up? to hear you in the courtroom. MR. BAILEY: THE COURT: Yes. Okay?

Thank you, your Honor.

We're here on the motion to compel that I thought I would take a

was referred by Chief Judge Walker.

few minutes to talk at you about some of the questions that occur to me in reviewing this and give everyone a chance to speak. We've got a little over an hour to do this. The

drop-dead date on a deadline when I have to turn to something else is 4:00 o'clock, so that should give us plenty of time to cover what we need to. Taking the sort of in the order the issues present themselves, the first question is timeliness. The -- on the

one hand, of course, the presentation of the evidence by way of witnesses has concluded. arguments. The judge hasn't set closing

Certain comments were made during the end of the

proceedings in front of the Chief by the proponents, I believe,

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about -- that this motion was still pending, that they wanted to submit some additional evidence. vehicle for that. But I'm not sure there's a

So one of the questions that's raised is

isn't this too late, by that standard? On the other hand, I am cognizant of the fact that Judge Walker referred this case to me on February 4th, suggesting that it's not too late. I'm not very sympathetic to

the argument that the initial motion was filed too late, I must say. The proponents filed this motion. I mean, they lost in

the Circuit or they won in the Circuit, depending on how you look at it on January 4th. order on January 8th. We issued our order or I issued my I

This motion was brought a week later.

don't know that I am particularly willing to suggest that it's not timely, for that reason. But I am concerned about whether

or not when you have a motion after the vehicle for presenting evidence is gone, whether we're engaging in sort of a pointless act here, which bears on the burden issue. The second issue is relevance. Which is -- overlaps

with the privilege issue, but taking it separately for the moment, and this question is largely to the nonparties, the state of play, as I understand it, and having looked at it several times, is that the district judge has decided and the Court of Appeals has affirmed that for discovery purposes, the messages conveyed to the voters are relevant to determining the purpose and the -- purpose and the intent of Proposition 8.

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And that, secondarily, internal campaign communications can elucidate the meaning and impact of the messages that were actually conveyed to voters. I don't see how, other than in a sort of very abstract way, your only concern in that regard is with one side's communications. I mean, the information before the voters, and The

we were all there at the time, was a conversation.

conversation went something like, You know, if you pass Proposition 8, "X" will happen. No, no that's not what will happen. Proposition 8, this is what will happen. People went back and forth on various topics. And so If you don't pass

the idea that only the communications in the outside world to the voters from one side are relevant seems to make no sense. If that is the case, that is to say, that the entire mix of information before the voters is what the judge would look at, then I don't see -- then it seems to me that internal communications from either side, within either side, would be relevant to elucidate the messages that got transmitted. So -- and so I don't understand how, having reached that conclusion with the proponents, I can take now a different position with the opponents. The privilege issue is, you know, the guidance of course is the amended opinion of the Circuit. And it seems to

me on -- that it's very difficult to argue that one side or

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another has a different level of protection by the virtue of the First Amendment. I mean, it's really interesting to read

the "No on 8" papers, or Equality California's papers, because I've read all those arguments before. before me. Mr. Pugno put them

It is, down to last night's declaration, it is

exactly the same sort of thing that the "No on 8" -- that the proponents were trying to persuade. First, this court, and This is the

then the Circuit, and the Circuit eventually said: standard.

And so the issue and the standard is that there is a limited First Amendment privilege with regard to internal campaign communications in this initiative election. That

private internal campaign communications among the core group -- a very important term, obviously -- responsible for formulating the campaign strategy and messaging, is protected. And "core group" is a limiting concept. focus -- in my mind. It's designed to

I understand it to be a concept designed

to focus the attention on that area where the First Amendment interests are the greatest. that direction. So one of the things I wanted, and this gets to sort of the questions, and we can talk about it in terms of each of the groups involved, but I wanted you to address in some detail the -- how far that core group concept reaches with respect to Californians Against Eliminating Basic Rights, Equality And that's why the Circuit went

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California and "No on 8". Lastly, in terms of burden, it is a burden. It was a

substantial burden on the proponents, and in a much shorter timeframe than I would contemplate for nonparties, because you are nonparties. I think that I'm called upon to reduce or

eliminate any undue burdens, but not eliminate all burdens. It strikes me that having decided this information is producible in discovery, I'm not inclined to say because of the burden issue, they can't have it at all. are ways to cabin the burden. I think that there

For one thing, I'm perfectly

willing to say something like, If you're looking for electronic documents, you only have to use the following search terms, and cabin it that way. I'm certainly willing to give you some time

to produce it instead of the week or 10 days I gave the proponents -- or 10 days, or whatever it was. anymore. I don't remember But

It was some very short period of time.

reasonable, of course. And I'm willing to discuss whether it's a reasonable burden to produce privilege logs. That may be undue. The

distinction between privileged and nonprivileged is going to be whether or not it's a communication within a very well-defined core group. And by well-defined, I mean at the end of the day

if the core group is granted, and the core group excluded, we'll have to have human beings, individuals, so that you will know exactly what to look for and what not to look for.

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Those are my preliminary thoughts. This is a motion to compel. party first. Whatever you'd like. Thank you, your Honor. Andrew Pugno for I'll hear from the moving

MR. PUGNO: the proponents.

Addressing the Court's questions, with regard to the timeliness question, and whether this is too late and whether there's really any good that can become of all this, the -- for both the plaintiffs and the defendants, the defendant intervenors at trial, there was a mechanism that the judge used where ones all testimony was concluded one side or the other got to bring forward a bucket of DVDs and paper records and so on and we kind of went one by one by one in kind of a document dump procedure. Where the opposing party got to voice any

objections and we went one by one. THE COURT: This was just -- I don't mean to -- I'm

just to make sure I understand, during the time, which we would understand to be the evidentiary hearing in this matter, that counsel went through that exercise. MR. PUGNO: That's right. Principally at the end of

the live witness testimony.

In other words, anything that

was -- that a party wanted to have part of the record but did not get introduced and authenticated and so on through a witness, there was a kind of en masse movement of documents after the live witness testimony had concluded. And I think

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conceptually, that opportunity is still open. having reserved the -THE COURT:

The defendant's

Conceptually, what do you mean by that?

Has the June said that he's willing to take any further document dump? that. I mean I'm just wondering what you mean by

Ordinarily in a bench trial, even though there's a gap

between when the evidentiary hearing happens and the arguments happen, you know, the opportunity to do things is at the evidentiary hearings, don't you think you have to move to reopen to get that opportunity? MR. PUGNO: would be true. I think if we had rested our case, that

In this case, we were given this opportunity,

we exercised the opportunity to the extent we were able, and then the record shows that we rested the case with the exception of the outstanding motion and additional evidence that may come out -THE COURT: true though. Just because you said that doesn't make it

That's just what you said. I think there was agreement, in fact,

MR. PUGNO:

that -- I mean we could have simply refused to rest our case. That would have been really not very helpful or productive. And I think there was broad recognition that we had this outstanding. We had raised it many times with the Court And ultimately it was referred

throughout the trial. afterwards.

And so I do think that whether it would probably

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not be in closing arguments, it would probably be through a paper submission where we would essentially do what we did in person, submit documents, the other side could object and the judge could decide what comes in or what doesn't. I think it

would be a non in-person version of the same mechanism which we reserved on at the time. THE COURT: MR. PUGNO: Okay. Second of all, on the relevance issue, it It is true

seems to be addressed mainly to the nonparties.

that the -- that Judge Walker said that the internal communications can elucidate what was said in the campaign. Publicly. As well as messages that were considered and In other words the judge

ultimately decided to not be used.

said that what was not said can elucidate the conversation as much as what was said. THE COURT: Well, let me just play -- talk to you Because the argument from the other That the

about that for a second. side is:

These are not of equivalent positions.

test -- what the judge has to decide is whether or not -- one of the things the judge may have to decide is whether or not the purpose of Proposition 8 was a legitimate purpose or not. Whether it had a discriminatory purpose or it had a nondiscriminatory purpose. All right? And the argument from

the other side is, Well, you know, you don't get from the forces that were working together to defeat Proposition 8

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the -- an understanding of what the purpose was for people who were voting for it, or who were official proponents of it. These are not not official anything. opposing it. Why isn't it just apples and oranges? That this is These are outside groups

a -- these are -- that what we're really looking at is the intent of the voters, who you were appealing to, who your side decided -- the kind of communications you put forth and the meaning and impact of those communications? MR. PUGNO: Why isn't that --

Because I think, as your Honor just said, Not of the

the relevant state of mind is that of the voters. proponents.

Not of the -- what the abstract purpose of an But the inquiry is: Did the voters enact it

initiative was.

with an improper purpose?

And so it's the state of mind and

the understanding and the intent, really, legislative intent of the voters, that the Court is examining. And normally we stop

at the ballot arguments to see what the voters were exposed to, and in this case we went substantially beyond that into advertisements and internal memos and things like that. And so in looking at the mix, the mix is relevant to what the voters were exposed to, and all of the factors they considered when making their decision. So to essentially have a one-sided conversation in court does not fully inform the Court of what the voters had before them. If all that is produced is what the proponents

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put before the voters but not what the -THE COURT: that mean? Give me something practical. What does

You put forth an advertisement that they say, based

on internal memos or whatever they say, puts forth an improper purpose -- and I'm not picking out any particular one, but I'm sure they've said it about some things. What is it that you

get from the other side that affects in any way what the purpose was of the proposition with respect to the people who passed it? I mean, I'm not really comfortable with the idea of the mind of the voters, because I don't think this is an intent in that sense. But in terms of the purpose of the proposition,

what is it that you get from the other side that shows anything about whether or not they're correct? MR. PUGNO: I think a perfect example would be when

the proponents make a claim about what would happen if Prop 8 were to not pass. And if the opponents, the "No" campaign,

were to have had a discussion that in fact the proponents may be right, but we need to distract voters away from that point, or we need to try and turn that around in a way that leads voters in a different direction. And so that would be

essentially a vindication of the Yes side's prediction, and probably do an awful lot to undermine the claim that that was an irrational fear. THE COURT: And that that was an irrational -Is that what you're looking to find? You

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went the internal campaign communications that say, you know, they're really right about that, this is going to affect education in this way, it's going to affect marriage in this way? MR. PUGNO: THE COURT: MR. PUGNO: THE COURT: Your Honor, we have no idea. What do you think the odds are? Pardon? What do you think the odds are that when I

look into the internal communications among the ACLU staff they're going to say, you know, I saw that thing on television the other night about education; they're really right about that, but let's distract the voters? MR. PUGNO: hypothetical -THE COURT: I'm trying to figure out if there's Your Honor, you asked me to make a

anything really, practically there. MR. PUGNO: Let me go to one other thing that's also But another one is

important -- and I think there are many.

that -- a central issue in the equal protection analysis here is relative political strength or political powerlessness of the gay and lesbian community. And records that reflect either

the reliability of strong allies and so on, all the things that the Court is looking at right now, those would be directly relevant. THE COURT: How significant? To the issues? Is it

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the case that -- I mean, usually when there's an issue on equal protection analysis where that issue is brought up, we're talking about the extreme ends of political power. We're not

talking about people who are discriminated against but have -but may have political power. Is that something that's really

going to have any significant impact on how the judge decides whether or not this has got one standard apply or another to it? MR. PUGNO: I think in many ways much of the ballgame

is guided by the standard, and plaintiffs felt it was sufficiently important to put on evidence that they brought expert witnesses to the stand and so on, precisely on this point. It is a core element of a threshold analysis on what I don't see how there

level of scrutiny's going to apply.

could be anything less important in this case. THE COURT: are less important. MR. PUGNO: Oh, I'm sure there's lots of things that But okay. As an example, I mean, there are half a

dozen issues in this case, and I think that that's just one example of ways -- and it is very difficult, your Honor, to guess what may be there, decide what legal significance it may have, when we're talking about things we've never seen. it's quite difficult. THE COURT: And what is it that you're asking for that Political power? So

shows that particular thing?

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MR. PUGNO:

Oh, I think -- well, again, I'm just

hypothesizing here, but -THE COURT: Well, no, a subpoena's out there. I'm not going to

Subpoena everything in the world on Prop 8. produce that.

What is it in that narrow category of documents

that you're looking for that have to do with political power? MR. PUGNO: Well, the relevant standard that the Court

has laid down had to do with, referring to containing or relating to an argument for or against Proposition 8. I think

that documents showing those arguments being presented to politically powerful institutions or political allies of the "no" side and the reactions and whether it's positive or negative, and the ability -- I mean, that's a core issue, the ability of the "no" side, of the -- to attract and retain the political reliability of major political influences. And

that's exactly -- that was what they attempted to do in the campaign. There were numerous statewide officials, celebrities

and so on, that they were able to attract, feature in advertisements and so on. And that reflects the relative

political power of that campaign. THE COURT: MR. PUGNO: Okay. Thank you.

On the First Amendment privilege issue of

the first -- your first question seemed to be addressed to the nonparties. I do want to point out that the implementation of

this standard -- we will agree that the standard is a standard,

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and it applies to whichever side; and we also agree that it applies to nonparty versus nonparty. But we do think that,

particularly through the declarations, that the implication of that here is extraordinarily broad, and seeks to include folks that were rejected when we asked to do the same thing before. And maybe we can come back to that, or I can go through those now. THE COURT: Well, I want to hear from them on that Although I've got to

subject, and maybe you can respond to it.

tell you, my approach when I went through your declaration the first time through was, I thought, very broad. Generally, If you

anyone, you said, would be swept into the core group.

said they were part of the core group for formulation -- there were a couple of exceptions to that. couple of exceptions here. But my view is that in order to be true to the rights that you are asserting and that they are now asserting, for examination of them, a careful examination -- but if there's a default, it's to be more inclusive rather than less inclusive. All right. MR. PUGNO: Let me hear -- is there something else? The last issue that your Honor raised, the And maybe there's a

burden and the caging of the burden, the cabining of the burden. I would like to point out that our position is that

when one exposes -- when one engages in a $45 million statewide high profile campaign, it is at that moment that they've

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exposed themselves to this possibility of being in litigation, and really whether -THE COURT: Where is that in Rule 45 that the nonparty

shall be spared all undue burdens unless they've spent a lot of money? MR. PUGNO: it's undue. I think it goes to the question of whether

In other words, if someone has a very tenuous

connection to the case, and it would be a heavy burden, it is undue. But the connection to the case really cannot be -THE COURT: no burden is undue? MR. PUGNO: THE COURT: you go? No, I don't believe that at all. But that's -- the question is: How far I see. If the connection's direct, then

I mean, that's the question. MR. PUGNO: THE COURT: MR. PUGNO:

And my thought was --

We think the burden should be the same. As a party and a nonparty. That's right. When you come forward and

run a statewide -THE COURT: Well, that proves too much. You're saying

a nonparty has the same burden as a party? much.

That proves too

They were denied the opportunity to come into this case,

and so they've got -- there is no question but that the Court has to be -- consider their burdens in a different way than a party. So -- now, it may be in analyzing undue burden that,

you know, how involved they are and whether they wanted to get

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into the case and all those things come into play.

But at the

end of the day, I think I have to be more solicitous of a nonparty's burdens. But let me hear from the other side. MR. PUGNO: MR. BOMSE: Thank you. Good afternoon, your Honor. Stephen Bomse Thank you.

on behalf of the nonparty ACLU. First of all, thank you very much for accommodating my travel schedule. I seem to have lost my voice, but at least

I'm here in body, and I'll do my best to work my way through this. I also appreciate very much your Honor's comments that helped us to focus on these issues -- and indeed, some of the comments that were made during your conversation with Mr. Pugno, because I think there are things there that are useful as well. Now you suggested that there are, and I agree with you entirely, four issues here. Leaving aside timeliness, which

although I'm only going to leave it aside for a second because I think it may be a way to cut this whole thing off at the pass, but leaving that aside for the moment, the three other issues -- that is relevance, privilege and burden -- while we need to talk about them separately, are, in fact, rather closely intertwined. THE COURT: Yes.

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MR. BOMSE:

And it's going to be my suggestion that

the burden that would be undue here in light of the other considerations, as well as the consideration which also animated some of your conversation with Mr. Pugno, that we deal here with nonparties, informs in a very important way this issue. But let me start where you started, with timeliness. And I'm not going to argue here that, well, they waited too long in a sense of "gotcha". But they have waited too long in

a sense that your Honor articulated, which is where we stand in the process. That is, witnesses have concluded. Nobody seems

to dispute that.

But what is the implication of that for the Well, we're not in the So if this

information that is sought here? discovery phase of the case.

We know that.

information is to serve any purpose here whatsoever, it must be because it is first produced, and then introduced. But how is

it going to be introduced when the witnesses have concluded? THE COURT: Let me just ask you a question about that.

Why am I, remembering the position I hold, and particularly the position with respect to this motion, why and I allowed to even consider that? district judge. the trial. The judge -- the motion was filed before the The district judge ordered briefing, during

And after the witnesses were concluded, the Isn't that

district judge referred it out then for resolution. ultimately going to be up to him?

Maybe he has in mind

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re-opening and allowing a witness to testify as to the authenticity of these documents, I don't know. can it be my position to even consider that? MR. BOMSE: Well, if you are wishing me to move on But why is --

because you think that having mentioned the issue is now not something between the two of us, but perhaps something between us and Judge Walker somewhere down the road, then fine. do that. But it does seem to me that it is in everybody's interest to this along in a sensible way. And what I was I will

saying -- I'll be brief and then move on -- which is that unless the Court decides that this evidence, and we're going to get to what this evidence is all about in a second, but unless the Court decides that this evidence is so significant -- and by the way, if there were to be something that was sufficiently significant, I'd assure you, we would be back there objecting to its admissibility on grounds of privilege and prejudice, that I can assure you; we would take up as far as necessary. don't think that would ever happen, because I think this is much ado about nothing. But the point is, to get this evidence in -THE COURT: MR. BOMSE: Uh-huh. -- you would have to -- because we are not We are not So the I

parties, the first time I'm going to mention that. parties.

Anything in our document is not an admission.

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arguments that were made about documents of the defendant/intervenors being admissions cannot be made against us. Those documents are hearsay. It's understood to admit

them you would need a witness.

And again, it may be the

plaintiffs will stipulate to it -- I would be rather astonished -- but that's not for me to decide either. But I am suggesting that when we look at the whole calculus here -THE COURT: MR. BOMSE: Yeah, I know. The very first thing that happens is a

significant issue of whether any use could be made of these documents. THE COURT: I don't disagree with the concept. I

actually disagree with your analysis on whether these are, quote, "hearsay", because it certainly depends on what the purpose those documents were being put as to whether they're hearsay. But you do have a good threshold issue about whether I agree with

or not they're going to be allowed to be used. that. MR. BOMSE: relevance.

So then let me turn to the question of

And there were two comments -- when I said that I

thought that the colloquy was very helpful -- there were two comments that were made that I think are pertinent here. was your Honor's: What do you think the odds are? And I First

understand you were in some ways being flip, but I think you

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were in some ways getting to the nub of the issue.

The notion

that there is going to be, once we have carved out as we must the documents that are protected from discovery under the Ninth Circuit opinion, that we are going to have non-core people talking in some document to some other non-core person about something that is so significant that it would inform in any meaningful way the issues before the Court, I think is extraordinarily remote. So that's Point 1.

The second thing that was said -THE COURT: MR. BOMSE: THE COURT: proponents? Can I ask about that just briefly? Of course. Do you think that is different from the

Do you think -Do I what? That the odds of finding are different? Absolutely. And if you find with the proponents

MR. BOMSE: THE COURT: MR. BOMSE: THE COURT:

whether they might be talking with non-core people in a way that would be significant, you think that's much more likely? MR. BOMSE: I don't think it's probably all that I haven't seen their

likely even as to their documents.

documents; I'm not going to see their documents; I don't really have any interest in seeing their documents. THE COURT: MR. BOMSE: But you're nonparties. But the proponents are talking about, how

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are we going to persuade voters to vote for this? all about?

What's this

And that's the point I'm going to get to in a

second, which is the real core problem on relevance. But before I do, I would like to note that when you finally put the question to Mr. Pugno about what he expects to find, he says: Difficult to guess.

Now, what phrase would better encapsulate the notion of a fishing expedition than "difficult to guess"? So we now have, after the conclusion of evidence, people coming, looking for documents, the main corpus of which we all agree are privileged. But there's something out there,

and it's difficult to guess what it might contain. I think one could, on the issue of relevance, fairly stop there, but I don't want to. Because I wanted to now go to

the question that the difference between the proponents and the opponents is not apples and oranges, it is apples and orangutans. That is, you are not in any realistic sense going

to find within our documents that might elucidate the issues that the judge has said he wants to consider in this case. the simple reason that we're talking about why people did something. who did it: So the only people we are talking about are those Namely, the voters. And those who were trying to For

persuade the voters. Those on our side, who were trying, sadly, without success, to persuade the voters not to enact Proposition 8,

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their intent is, alas, not pertinent at all. THE COURT: That seems to me a red herring. I've got

to tell you, that seems to be a red herring.

We're talking

about -- and maybe "intent" of the vote is such an odd term. But we are talking about the purpose for which it was enacted. And the intent of the voters is as good a substitute for that as any. But don't you think that in deciding what the

intent -- whether the purpose was discriminatory or not, all right, which it's not just some abstract intent of the voters, it is was it an improper purpose, or was it a permitted purpose? In deciding that, that you want not just the messages

that -- and the judge has already decided this, the judge has actually already decided this -- not just the messages that went to the voters from one side which show perhaps, if you think they are, discriminatory messages, but you get messages from the other side. And the reason for that is, because you

can't tell, actually, the total mix that the voters got and what their intent was, even in passing it, unless you have both sides. So for example, if one side brings up an argument and it is a discriminatory argument. But it is completely swamped

by the discussion from the other side, well then it's less likely that the purpose for which it was enacted was that one. There may be other purposes. There may be other purposes. But

it seems to me it's a red herring to say, well, our voters

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didn't vote for it. with it. MR. BOMSE:

I don't think that's got anything to do

Your Honor, let me start with, although I

could take up a fair by the of our time quibbling with some of that, but let me start with the assumption that what you said is right. If that is the case, then the things that are going

to have swamped it are the things that were out there to the public, not the things that were never said. Not the things We have

that couldn't have swamped because the faucet was off.

given up, voluntarily, everything that was out there that had swamp capacity. We are left with dribbles of droplets of

something that one might think that maybe there was a leak faucet and if we go through 60,000 e-mails, we will find somebody somewhere speculating about some argument that, aha, this will show that actually the yes on eight people are going to lose because of that. But how much better can we both do than to look at what it is that our opponents had to say when they came, when they had to come up and say what their relevance is. I invite

you to look at the arguments they made on Pages 6 and 7 of their reply papers, where they start out by declaring victory. They say, Well, you've already decided this against us. Well, if you have -- but my assumption is we have got a purpose here. To try to figure out the right answer, let's They start out by saying

figure out what their arguments are.

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voters can consider both sides. voters do that.

Yeah, I hope at least some

But at the end, if they voted no, we don't

care; and if they voted yes, apparently our arguments didn't persuade. THE COURT: You see, I've got to tell you I just think That's overly simplistic. Because

that is overly simplistic.

the question is not whether in deciding the constitutionality of the proposition, whether or not your arguments persuaded them to vote for or against. The question is whether they That's the question.

enacted it with a discriminatory purpose. Right? MR. BOMSE:

I think that is the question of And I don't see how any of this

discriminatory purpose. possibly goes to that.

But at the end of the day, they're actually forced at the top of Page 7 to say, voters may well have voted for this law in reaction against the statements and messages presented by the opponents. New, I will give that very high marks for credibility. Probably somewhere out there there is somebody who really detests Brad Pitt's skills as an actor. And therefore when she

found out that Brad Pitt was opposed to Proposition 8, well, by God, that turned around her vote. But is that seriously the

basis upon which we are going to impose any type of burden, let alone on a nonparty at this stage of the case?

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I'd simply suggest to your Honor that on the question of relevance, while I can accept, at least for these purposes and with our time deadline, that there is an argument that one can make about the complexity of this process, it cannot begin to justify what is being asked here. Now let me turn then to the question of privilege. And your Honor, you began by saying that in your view, it probably was the same level of protection. Well, again, I'm

not going to be arrogant and suggest that I know what you had in mind in your order of January 8. But I am going to suggest

that having read it, what you had to say was that they hadn't made this argument, and if -- and that's on Page 2, continuing over to the top of Page 3. And then you said if they had made

the argument, well they haven't really shown us what the structure of the campaign was, how any of this worked. Well, I don't think that -THE COURT: By "this argument", you're talking

MR. BOMSE:

The argument that people talk to people in

different organizations and at different levels. THE COURT: Well, they made the arguments. They still -They

didn't put in evidence of it. MR. BOMSE: THE COURT:

But we have. And I understand that and we'll talk about

But the argument was, you know, we spent a considerable

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period of time talking about the merits of that argument.

Both

from whether or not they've justified it -- because you know, although the names are different, the structure of that campaign as described in oral argument wasn't dramatically different from the way you, the campaign on the other side was structured. But they hadn't sufficiently done their due

diligence, and in any event I rejected it on the merits, right? MR. BOMSE: Again I certainly can't say what you did.

I can say that from reading your opinion at pages two and three, I don't think that that's -- that's not what I took from it. THE COURT: Having talked with you about the notion of

whether or not the Ninth Circuit's description of the limits of the First Amendment protection as extending to the core group can fairly be said to be something, anything other than a limitation, a limiting concept, that is designed to say that considering all the factors that they considered, in deciding the scope of the protection imposed by the First Amendment, that it is limited to a small number of people in what are equivalent to management type positions, or guiding positions, and not anybody, anywhere, anyplace, all up and down, anyplace in the campaign, because "core group" doesn't, to my mind, doesn't -- is not susceptible of that -- I mean, when I read the declarations, what you're trying to establish is that we talked everywhere about formulating strategy. From the person

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in -- you know from our conversations with every single activist in each of the counties to all the way up to the top of the campaign, all of us talked about formulating strategy. The people on the phone talked to each other at the phone bank about how they should -- their messages should go out while they're sitting there. That suggests that the position is,

everybody is -- and it strikes me the core group is just not susceptible of that kind of interpretation. MR. BOMSE: Well, I have two answers. First one is,

and one of the most famous things ever said about politics, which is all politics is local. That is you had a statewide

campaign, but you had campaigns that were going on in Madera, in Sonoma County, down in Yucaipa. And things that were going

to be said to influence voters there, to create messages there, weren't going to be the same. And to cut this off on the

theory that you need to have some über category at a statewide level and that it does not include the vast number of people who came together, recognizing that politics is local, in order to try to defeat Proposition 8, I think undoes what the privilege is all about. THE COURT: You still haven't explained to me -- and I

would appreciate an answer to the question. MR. BOMSE: THE COURT: the core group? I'm sorry. "Core group", how is that consistent with

The Ninth Circuit had something specific in

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mind. MR. BOMSE: THE COURT: MR. BOMSE: Well, maybe. They said it. Right. I have to deal with it.

They did use the words in one

footnote, without otherwise in a fairly lengthy and careful opinion consider what -- that was, to me, rather -- they said, We need to send this back to the District Court in order to figure out what "core group" is. And I am suggesting to you that you have, at least by my lights, to the extent that you did rule on the merits, underread what a core group ought to be. correctly. But I do want to go further. THE COURT: MR. BOMSE: Okay. I do want to say to you, your Honor, that And we have read it

we do have the concept of "core group" that was advanced in another context. Came before the United States Supreme Court. For years and And

Had to do with the attorney/client privilege.

years, you had something known as a control group.

everybody -- not everybody, because it was actually a division in the law -- but you had this control group notion because there were only some people up there at the top -THE COURT: MR. BOMSE: I remember it. -- who could have the privilege. And the

Supreme Court took the case, the Upjohn case, and it said,

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Huh-uh, that makes no sense in relation to the privilege -And I went back and I read Upjohn. And I would invite

your Honor to do the same, recognizing that it's not the same privilege. I'm not arguing that it's the same privilege. But

I am arguing to you that we have to read what is said one place with regard to our knowledge of the law and the purposes more broadly. We have to make sense of this. Does it not make

sense to say that when you're conducting a campaign, it is not some group at the top that is creating strategy, and only what they do is entitled to constitutional protection? don't think that makes sense. And yes, here I may well be saying that I simply disagree with what your Honor did the last time, and I simply invite you -THE COURT: MR. BOMSE: That's allowed. -- within the context of considering what Because I

to do in this case, to think whether or not the evidence we have put before you, considered in light not simply of Footnote 12, but of the entirety of the Ninth Circuit's opinion, means that our position in fact makes sense. THE COURT: MR. BOMSE: question of burden. THE COURT: MR. BOMSE: All right. And I certainly do appreciate your Honor's Okay. But then I want to come finally to the

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comments that your are cognizant of the fact that we are a nonparty. I think it actually goes a little beyond that,

because I think there was an argument for judicial estoppel here. And it only occurred when I read the reply brief. We're

not nonparties here because we chose to be nonparties here. We're nonparties here because we sought to intervene and we failed. THE COURT: MR. BOMSE: Okay. And one of the reasons we failed was And one of the grounds on

because Mr. Pugno's clients opposed.

which they opposed was that we brought nothing new, nothing additional, to the party. Now, if you go back and read their opposition -- you will find that on Page 9 -- you will find them talking about anything useful we have to say can be said simply in an amicas brief. Well, now, they won that. And now they're coming here

and taking the opposite position, that there is something unique, something that they need after the witnesses have concluded in order to make their case. I don't think they

should be heard to make that argument, but even if they should be heard to make that argument, the argument should be rejected. They should not be entitled to put a burden of

difficult to guess on us. I -- frankly, your Honor, if this were a question of

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our going out and looking through a few pieces of paper to satisfy everybody that there was nothing that actually met their set, or that there was one innocuous thing that duplicated things that had been said publicly, well, maybe we could say, What's the big deal. But that's not the situation.

And we have put before you the numbers of documents that are involved, the circumstances in which we find ourselves, and -you know, I'm an antitrust lawyer when I'm not trying to defend the ACLU. THE COURT: MR. BOMSE: I remember. And the number of documents here relative The number of documents

to an antitrust case, pretty small.

relative to this organization, relative to its financial situation, relative to the things that its people have to do, quite substantial. up like The Gap. This is not set up like Sony. It's not set

They don't have staffs and they don't have We're going to have

servers and they don't have consultants.

to go out -- no matter you will do, you're going to end up imposing a truly enormous burden. I tried to figure out what

are the search terms that we might use that could get this quickly down to nothing. THE COURT: Well, it can't get it quickly down to

nothing, but one of the things I thought of were just the search terms that you suggested -- that were inadequate, but could get it down to 25,000 documents.

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MR. BOMSE:

But 25,000 documents would then have to be That's not a small -It's about a

reviewed individually. THE COURT:

It's not a small thing.

third of the 60- or 70,000 documents, I can't remember exactly. MR. BOMSE: Yes, and I'm now talking only about the

THE COURT:

And I'm sure that Orrick, Herrington to

know, and Sutcliff will help them when they do it. MR. BOMSE: THE COURT: MR. BOMSE: THE COURT: MR. BOMSE: You know, I thought about that. I'm sure you did. And I understand, you can order -And Fenwick & West. You can order us to do that. But I think

that you're imposing a cost that shouldn't be borne unless there is clearly a basis to do that. Unless you have

concluded, after taking into account all of the other things, after taking into account what are the odds, after taking into account "difficult to guess", after taking into account the question of how we really apply privilege in this circumstance, and the likelihood that at the end of the day, we will come up with anything meaningful, that they will then be able to get it into evidence. I would suggest to you that telling Orrick,

Herrington and Sutcliff or Fenwick & West that you need to undertake this task -- I think it's undue. THE COURT: Uh-huh.

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MR. BOMSE:

And I don't think there's a showing that's

been made that justifies it. THE COURT: MR. BOMSE: Okay. I have taken more than my time at the

podium, but of course, if your Honor has any questions... THE COURT: nonparties. I don't. I want to hear from the other

I'm particularly interested in hearing from

Equality California next if I could, because I do want some elucidation about the campaign structure in the core group in that regard. And thank you for the very detailed declaration.

That was most helpful. But it -- and it does try to make the same argument that Mr. Bomse made, of course, which is that this is a campaign where everybody from the chairman to the local assistant talked about everything from signage to formulation of messaging. And the question is, if I decide -- and I'm not

deciding right now; I'll take it under submission at the end of this hearing -- not to go -- to infringe that direction, the question is: What can I, with some careful thought, carve out And the -- you, you know this

as an appropriate core group?

is -- I am concerned, the documents are with regard to Equality California, but you elucidated on the Equality For All umbrella campaign, which I think was appropriate. understand it, an executive committee. committee. It has, as I

It has a campaign

I assume that while those are people from member

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organizations, they are identifiable human beings; is that right? MS. WHITTEMORE: may I approach the bench? THE COURT: Sure. Yes, that is correct, your Honor, and I brought an additional document. Karen.

MS. WHITTEMORE:

Under Tab A, you'll find the

declaration we filed last night. THE COURT: Yeah. But under Tab B, I tried to sort of

MS. WHITTEMORE:

provide a visual of how the "No on 8" Equality For All campaign is structured to help provide some understanding of why so many of the communications at different levels could possibly fall under the privilege. And as you can see at the first level, the executive committee, campaign committee and campaign consultants all took part in core conversations involving campaign -THE COURT: This isn't about core conversations. We're all having core

There's lots of core conversations. conversations.

This is about core individuals. Yes, and I think we can, you know,

MS. WHITTEMORE:

definitely point to the executive committee as action a group of individuals who definitely engaged in some of the important campaign strategy and messaging. However focusing only on the

executive committee leaves out the campaign commit did he which had a rather difficult to pin down membership, because the

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campaign committee was made up of member organizations and individuals at those member organizations were on some calls, were on some of the e-mails, but were not on every single e-mail. And the -THE COURT: Why doesn't that cut against you? I mean,

I've articulated that my preliminary thought is that the concept of a core group with responsibility for formulation of strategy and messaging is an intentional design by the circuit to limit the reach of not First Amendment rights -- Mr. Bomse said something about limiting First Amendment -- it's not about limiting First Amendment rights. It's about the extent of the Slightly different

First Amendment privilege from disclosure. concept.

But it's designed to limit that concept to particular

people that they have described. If you have a floating campaign committee which is anybody from these organizations who shows up and sometimes people show up and sometimes they don't, you know, that's essentially a membership group. Why isn't that obviously not a

core group within the meaning of what the circuit had in mind? MS. WHITTEMORE: Well, I think, looking at the

Circuit's opinion, they were, in talking about the core group, they were looking at the associational interests of those individuals. And although an individual at NCLR might not have

been on every single conference call and contributed to every single e-mail conversation about a certain campaign strategy,

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that does not mean that that individual did not want to participate and have a free flow of information and express their political ideas in the context of the campaign. THE COURT: who do that. I understand. But there's lots of people

And that reads too much life into "core group".

That means the entire campaign, other than people who just happen to be handing out fliers, would be covered by the core group. Core group is a limiting concept of individuals who are

engaged in the formulation of campaign strategy and messaging. It doesn't mean people who ratify campaign messaging and strategy. It doesn't mean people who distribute

campaign -- it doesn't mean people who modify it when they're down in the field talking to a particular activist. means -- it's a much more vibrant concept than that. It It seems

to me that the circuit was balancing all those things. So it is, if I have, you know, a group which is essentially just -- maybe I can ask the question this way: The campaign committee is a -- is a committee of all the members of Equality For All, all the organizations that are members of it? MS. WHITTEMORE: campaign. THE COURT: For All campaign? MS. WHITTEMORE: Right. Which is the membership of the Equality Yes, organizations who joined the

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THE COURT:

So when you say it's a campaign committee,

it is -- in fact, it's a membership -- it's a meeting of the members of the entire campaign, right? MS. WHITTEMORE: THE COURT: Yes.

So how can I say that's a core committee,

how can I say that's the core group within the committee, within this group? I -- I'm not sure how -- the practical

significance of these distinctions, frankly, because you know, if you tell me these folks are on your executive committee, the likelihood is I say, Fine, you get them all. But how can I go

to just the meaning at which members participate or don't? It's everybody who's a member, who can be in it, how can that be a core group with the responsibilities the circuit talked about? MS. WHITTEMORE: Because this was a statewide campaign

that was targeting every single discrete group of voters that you could imagine. That was running campaigns in Fresno and in

San Francisco and in Oakland, and had to employ very different strategies and messaging to reach all of those regions and groups. THE COURT: campaigns? thing. But aren't you just talking about the

I mean, a presidential campaign does the same And not --

A senatorial campaign does the same thing.

if you're talking about the core group of a campaign, it renders -- don't you think it renders it meaningless to

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interpret it the way you're interpreting it? core group? MS. WHITTEMORE: THE COURT: Well, I --

That it's not a

You may disagree with what the Circuit

did -- and I don't have a problem with you disagreeing with what the Circuit did. MS. WHITTEMORE: I think it's problematic to get hung

up on the word "core" when we're talking about persons who had a role in campaign strategy and messaging and the formulation of that strategy and messaging. THE COURT: I -Because we can say there's a group of

MS. WHITTEMORE:

18 to 20 people on the executive committee who no doubt had a very powerful role in formulating strategy. However, that does

not preclude the fact that people on the campaign committee also had a role in that. It's -- they think using the word

core is forcing us to limit it, when in fact what we should be looking at are the levels of activity rather than -THE COURT: didn't make it up. I'd love not to use the word "core". It's not my word. I understand that. And I think if we I

MS. WHITTEMORE:

focus instead on the associational interests of the people who were working in the campaign, it would be a much more useful way to come at it. THE COURT: So let me ask you a different question:

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So we've talked about the executive, we've talked about the campaign committee. There is a vague -- and let me just look

at your -- there's campaign staff. MS. WHITTEMORE: There's several levels of staff. And paid staff at

There's -- Equality For All had paid staff.

the various member organizations also worked on the Equality For All campaign, either part-time or some of them full-time. But were paid by their member organizations. THE COURT: Okay. And I'm just trying to figure out We're talking about

what the significance is for this.

documents in Equality California's possession that may be communications between individuals of Equality California and someone else at Equality For All. The campaign manager, I don't think it's possible to object to the campaign manager being part of a core group. know maybe there are some other levels of staff that are clearly part of a core group and that's what I'm trying to elucidate, because you've talked in general terms about the staff, but you know, who would be the individuals that on the staff like the executive committee have the responsibility for the formulation of a strategy for the campaign and the messaging for the campaign. MS. WHITTEMORE: Well, there were directors within the You

Equality For All staff for different regions, and also for different topical areas.

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THE COURT:

So there were regional directors, field

directors and -- or area directors or whatever, subject matter directors, campaign manager, and were those individuals involved, you'll say yes, involved in the core group of formulating....? there. MS. WHITTEMORE: I can't speak to that right now. I Who are those people? How many of them are

can say it's probably in the double digits. We made an effort to collect all of these names before we came to the hearing today and we quickly ran into the problem that if we get nine of the names and there are 12 names, that will effectively destroy the privilege. THE COURT: the problem. I understand the problem. They understand

Everybody's got that.

No, I think core group is a slippery and difficult concept to apply. But I'm trying to do it as I can. Which

You had lots of different consultants.

consultants were involved in formulating messages? MS. WHITTEMORE: "formulating messages". THE COURT: Again, it depends on how we define I mean, we could point to the --

Writing. -- general campaign consultants who

MS. WHITTEMORE:

did provide important input on how to formulate the messages. How to -THE COURT: How to say it.

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MS. WHITTEMORE:

-- address certain populations.

But

then we also -- the campaign also received expertise from people who would provide outreach services, people who'd provide advertising services, people who provided web services. Because this, you know, getting into social media is a new thing, relatively new thing for campaigns. So help in that

arena on how to formulate Twitter messages, and -- I mean, that's also part of the strategy of getting the messaging out there. THE COURT: How many consultants were there that were

involved in what you count as formulating messages? MS. WHITTEMORE: consultants. THE COURT: So do you think -- how quickly do you I think we had about 15 to 20

think you could put together an affidavit for me that identifies the specific individuals who were employed as campaign managers, or you called it field directors or regional directors -- in their role in formulating messaging? And

consultants that you think, specific individuals you think were involved in this, as consultants in formulating messaging. quickly could that be put together? MS. WHITTEMORE: I think we could do that by mid next How

THE COURT:

What's today, Thursday?

So by March 3rd.

MS. WHITTEMORE:

To make sure I understand what you're

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asking, are you interested in a more complete definition of individuals on the executive committee. THE COURT: You've got to -- you now have given me I

think a list of individuals on the executive committee. MS. WHITTEMORE: Well, this list I've provided does

not include all of the officers. THE COURT: committee members? MS. WHITTEMORE: THE COURT: And the campaign committee. Well -- yes, fine. Any executive

Well, from your description of the

campaign committee, I don't see how that's a useful venture. It's every member, presumably every member organization had different people at different times participate in various meetings of the membership, and from your description I don't know that that's a useful venture. MS. WHITTEMORE: Well if it would be possible to

identify a few individuals who played a larger role than others, would you accept information on that. THE COURT: Yeah, I think if there are a few -- I

mean, I don't have a fixed idea, despite what I have said of exactly how many people can be on a core group, or whatever it is, and by sheer dint of you putting in more evidence, the core groups that are going to be elucidated in this order are going to be much larger than the ones on the other side just because you've gone to greater lengths to identify more people. You've

CONNIE KUHL, RMR, CRR Official Reporter - U.S. District Court [phone]

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also had more time to identify more people. You're also a third party, so I think I have to be more considerate of the burdens. But if you want to identify a few individuals in the campaign committee who had particularly important roles in the formulation of messaging and strategy, you can. MS. WHITTEMORE: I appreciate that, your Honor. And

if I may add some information on the burden. THE COURT: about the Institute. Before you get to that, I want to talk I didn't really understand why the

Institute woul