Perry et al v. Schwarzenegger et al

Filing 642

MOTION for Leave to File Motion to Strike and/or Reconsider filed by Hak-Shing William Tam. (Attachments: #1 Proposed Order, #2 Exhibit Proposed Motion to Strike, #3 Exhibit Declaration in Support of Proposed Motion to Strike, #4 Proposed Order)(Thompson, Terry) (Filed on 4/26/2010)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v ARNOLD SCHWARZENEGGER, in his official capacity as governor of California; EDMUND G BROWN JR, in his official capacity as attorney general of California; MARK B HORTON, in his official capacity as director of the California Department of Public Health and state registrar of vital statistics; LINETTE SCOTT, in her official capacity as deputy director of health information & strategic planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIOFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No

C 09-2292 VRW ORDER

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On March 22, 2010, the court upheld Magistrate Judge Spero's March 5 discovery order and ordered nonparties Equality California and the ACLU (the "No on 8 groups"), along with Californians Against Eliminating Basic Rights, to produce all responsive non-privileged documents on a rolling basis to conclude not later than March 31, 2010. Doc #623. The No on 8 groups

appealed the court's orders, which were stayed until the Ninth Circuit dismissed the No on 8 groups' appeal for lack of jurisdiction. Perry v Schwarzenegger, No 10-15649 Doc #14 (9th Cir Proponents now ask the court to hold the No on 8

April 12, 2010).

groups in contempt, as they have failed to produce documents as ordered in the March 5 and March 22 orders. Doc #632.

The No on 8 groups assert that they are withholding documents because they believe the First Amendment privilege should apply to communications between or among all No on 8 core group members regardless of organizational affiliation. 4. See Doc #639 at

The No on 8 groups' current position stems from the Ninth

Circuit's observation that the First Amendment privilege applies to communications among individuals who have formed an associational bond regardless of organizational membership. Doc #14 at 9. Perry, No 10-15649

The No on 8 groups have not however pointed to any

evidence in the record to support a finding that communications between the No on 8 groups were sufficiently private to be deemed privileged under the First Amendment. See Doc #639 at 4 (arguing

that the No on 8 groups' evidentiary submissions support an expanded First Amendment privilege but failing to refer to particular evidence in the record supporting this position). No on 8 groups have thus not shown that any amendment to the 2 The

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court's previous orders is appropriate. In order for the No on 8 groups to be held in contempt, the court must find by clear and convincing evidence that (1) the No on 8 groups violated the March 5 and March 22 orders; (2) beyond substantial compliance; and (3) the violation was not based on a good faith and reasonable interpretation of the order. See In re

Dual-Deck Video Cassette Recorder Antitrust Litig, 10 F3d 693, 695 (9th Cir 1993). It appears from the record before the court that

the No on 8 groups have not in any way complied with the court's orders. See Doc #639 (explaining that the No on 8 groups do not

intend to comply with the court's orders as currently formulated). The No on 8 groups are therefore ORDERED to SHOW CAUSE in writing by not later than April 27, 2010 at 5 PM PDT and at a hearing before the undersigned on April 28, 2010 at 10:30 AM PDT why they should not be held in contempt for failing to produce documents as ordered in the March 5 and March 22 orders. The declaration of Geoff Kors estimates that production of Equality California's documents could cost $20,000. ¶10. Doc #609

If the court determines that the No on 8 groups are in

contempt of its orders, the court is considering imposing sanctions to coerce compliance in the amount of $2,000 per day per group, or one-tenth the cost of production, for each day that the No on 8 groups fail to comply with the court's orders.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge 3