Perry et al v. Schwarzenegger et al

Filing 655

MOTION to Seal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/5/2010)

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COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* [e-mail] David H. Thompson (DC Bar No. 450503)* [e-mail] Howard C. Nielson, Jr. (DC Bar No. 473018)* [e-mail] Nicole J. Moss (DC Bar No. 472424)* [e-mail] Peter A. Patterson (OH Bar No. 0080840)* [e-mail] 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: [phone], Facsimile: [phone] LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* [e-mail] James A. Campbell (OH Bar No. 0081501)* [e-mail] 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: [phone], Facsimile: [phone] ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL CASE NO. 09-CV-2292 VRW T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his
DEFENDANT-INTERVENORS' ADMINISTRATIVE MOTION FOR SEALING ORDER CASE NO. 09-CV-2292 VRW

DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM'S ADMINISTRATIVE MOTION FOR SEALING ORDER PURSUANT TO LOCAL RULES 7-11 AND 79-5

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official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) [e-mail] 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: [phone], Facsimile: [phone] Jordan W. Lorence (DC Bar No. 385022)* [e-mail] Austin R. Nimocks (TX Bar No. 24002695)* [e-mail] 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: [phone], Facsimile: [phone] * Admitted pro hac vice

DEFENDANT-INTERVENORS' ADMINISTRATIVE MOTION FOR SEALING ORDER CASE NO. 09-CV-2292 VRW

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NOTICE OF MOTION AND MOTION Pursuant to Northern District of California Civil Local Rules 7-11 and 79-5(b), DefendantIntervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson, and ProtectMarriage.com ("Proponents") hereby move for an administrative order sealing (1) their Motion to Supplement the Record and (2) the exhibits that motion offers for admission into the evidentiary record. Pursuant to Civil Local Rule 79-5(b), Proponents are today lodging with the Clerk a proposed order sealing the documents as well as the documents themselves.1 Proponents are also lodging a second copy of the documents with the Clerk for the Court's chambers. At the close of trial, this Court granted Proponents' request to hold the evidentiary record open pending resolution of Proponents' motion to compel discovery against groups that opposed Proposition 8, including No on Proposition 8, Campaign for Marriage Equality, A Project of the American Civil Liberties Union ("ACLU") and Equality California. In light of the resolution of these motions, this Court on April 28, 2010 ordered that Proponents "shall serve and file any supplement to the evidentiary record not later than May 5, 2010 at 5 PM PDT." Doc # 650 at 1. Proponents have prepared a motion to supplement the record with exhibits consisting of records produced by the ACLU and Equality California, and now ask this Court for an order sealing both the motion and the exhibits. Such an order is necessary because it is our understanding that the ACLU and Equality California designated the exhibits "Confidential" or "Highly Confidential ­ Attorneys' Eyes Only" under the protective order governing this case. See Amended Protective Order, Doc # 425; March 5, 2010 Order, Doc # 610 at 14 (granting Proponents' motion to compel production from No-on-8 groups including ACLU and Equality California, and providing that the groups "may produce documents pursuant to the terms of the protective order"); March 22, 2010 Order, Doc # 623 (denying objections to Doc # 610). Under the terms of the protective order, absent an agreement or court order to the contrary, "a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with

Proponents are also today serving these items on Plaintiffs and PlaintiffIntervenor; we will serve any other party that represents that it desires service and that it will adhere to the provisions of the protective order governing this case. See Doc # 425. 1
DEFENDANT-INTERVENORS' ADMINISTRATIVE MOTION FOR SEALING ORDER CASE NO. 09-CV-2292 VRW

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Civil Local Rule 79-5." Doc # 425 at 12; see also id. at 3 (defining "Protected Material" as "any Disclosure or Discovery Material that is designated as `Confidential' or `Highly Confidential ­ Attorneys' Eyes Only' "); cf. Civ. L.R. 79-5(d). Proponents must also request leave to file their motion to supplement the record under seal, as it consists chiefly of references to and quotations from the exhibits designated for protection. See Doc # 425 at 3 ("The protections conferred by this Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material."). Proponents do not concede that the ACLU and Equality California have properly designated the exhibits as protected under the terms of the protective order. Proponents are in the midst of reviewing the documents for the purpose of making that determination, as well as conferring with the ACLU and Equality California regarding their designations. Should we be unable to reach agreement with the ACLU and Equality California, we reserve our rights to challenge their designations. See Doc # 425 at 7-8. For these reasons, Proponents respectfully request an order sealing (1) their Motion to Supplement the Record and (2) the exhibits that motion offers for admission into the evidentiary record.

Dated: May 5, 2010 COOPER AND KIRK, PLLC ATTORNEYS FOR DEFENDANTS-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIFORNIA RENEWAL By: /s/ Charles J. Cooper Charles J. Cooper

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DEFENDANT-INTERVENORS' ADMINISTRATIVE MOTION FOR SEALING ORDER CASE NO. 09-CV-2292 VRW