Perry et al v. Schwarzenegger et al

Filing 668

Declaration of Nicole J. Moss in Support of #667 Reply Memorandum, filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. (Attachments: #1 Exhibit A, #2 Exhibit B)(Related document(s) #667 ) (Cooper, Charles) (Filed on 5/10/2010)

Exhibit B

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DENNIS J. HERRERA, State Bar #139669 City Attorney THERESE M. STEWART, State Bar #104930 Chief Deputy City Attorney DANNY CHOU, State Bar #180240 Chief of Complex and Special Litigation RONALD P. FLYNN, State Bar #184186 VINCE CHHABRIA, State Bar #208557 ERIN BERNSTEIN, State Bar #231539 CHRISTINE VAN AKEN, State Bar #241755 MOLLIE M. LEE, State Bar #251404 Deputy City Attorneys City Hall, Room 234 One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, vs. 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 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,
CCSF's A's to Prop 8's RFPD #2 CASE NO. 09-CV-2292 VRW

Case No. 09-CV-2292 VRW PLAINTIFF-INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S RESPONSES TO DEFENDANTINTERVENORS' PROPOSITION 8 PROPONENTS' SECOND SET OF DOCUMENT REQUESTS Trial Date: Not set

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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. CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor vs. 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; and LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health, Defendants.

PROPOUNDING PARTY: Defendant-Intervenors Proposition 8 Proponents RESPONDING PARTY: SET NUMBER: Plaintiff-Intervenor City and County of San Francisco Two (2)

Plaintiff-Intervenor City and County of San Francisco ("the City" or "Plaintiff-Intervenor"), hereby responds to Defendant-Intervenors Proposition 8 Proponents' Second Request for Production of Documents, as follows:

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1.

Plaintiff-Intervenor objects to each Request as unduly burdensome and oppressive on

the grounds that it purports to require Plaintiff-Intervenor to procure and search for documents that would not reasonably be expected to be in their possession, custody, or control. The responses are thus based upon a reasonable search, given the time allocated to respond to the Requests, of facilities and files that could reasonably be expected to contain responsive information. The subject matter of these Requests is under continuing investigation. Plaintiff-Intervenor expressly reserves the right to use or rely upon documents not produced in response to these Requests, if such documents are uncovered during the course of their ongoing investigation. 2. Plaintiff-Intervenor objects to these Requests to the extent they seek to alter the

schedule imposed by the Court's August 19, 2009 and August 24, 2009 pretrial scheduling orders. Doc ##160, 164. Specifically, the identity of proposed exhibits and witnesses is due on December 2, 2009. Doc #164 at 1-2. 3. Plaintiff-Intervenor objects to each Request on the grounds that it purports to impose

any requirement or discovery obligation on Plaintiffs other than those set forth in the Federal Rules of Civil Procedure, Civil Local Rules of the Northern District of California, or any applicable Orders from Chief Judge Walker. 4. Plaintiff-Intervenor objects to each Request to the extent that it seeks documents that

are protected by the attorney/client privilege, the work product doctrine, and/or any other applicable privilege or immunity. 5. Plaintiff-Intervenor objects to the "Definitions" and "Instructions" contained in the

Document Requests to the extent that they are inconsistent with or seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure, Civil Local Rules of the Northern District of California, or any applicable Orders of Chief Judge Walker. 6. Plaintiff-Intervenor objects to the definition of "Document" as overly broad, unduly

burdensome, and oppressive. Plaintiff-Intervenor objects to that definition as vague and ambiguous. 7. By stating in these responses that Plaintiff-Intervenor will produce documents,

Plaintiff-Intervenor does not intend to represent that any responsive documents actually exist, but

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rather that Plaintiff-Intervenor will make a reasonable, good faith search and attempt to ascertain whether responsive documents do in fact exist. 8. Plaintiff-Intervenor will respond to these Document Requests with its current

knowledge and reserve the right to supplement these responses if any additional information is identified at a later time and to make any additional objections that may become apparent. PlaintiffIntervenor also reserves the right to make any use of, or introduce at any hearing or at trial, any documents or information not known or thought to be responsive at the time of response. OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS REQUEST FOR PRODUCTION NO. 4: Produce all documents constituting literature, pamphlets, flyers, direct mail, advertisements, emails, text messages, press releases, or other materials that you distributed to voters, donors, potential donors, or members of the media regarding Proposition 8. RESPONSE TO REQUEST FOR PRODUCTION NO. 4: In addition to their General Objections, Plaintiff-Intervenor further objects to this Request on the grounds that it is vague and ambiguous. Plaintiff-Intervenor also objects to this Request on the grounds that it seeks documents or materials equally available to Defendant-Intervenors. PlaintiffIntervenor further objects to this Request on the grounds that it is overly broad and unduly burdensome. Plaintiff-Intervenor also objects to this Request on the grounds that it is unlikely to lead to the discovery of relevant material, as neither Plaintiff-Intervenor nor its agents were at any time acting in their official capacity as an opponent of Proposition 8. Subject to these objections, Plaintiff-Intervenor will produce non-privileged, reasonably responsive documents to the extent they exist and are in Plaintiff-Intervenor's possession, custody, or control and reflect any documents distributed by the Plaintiff-Intervenor and its agents acting in their official capacities on or before June 18, 2009, the date that Plaintiff-Intervenor filed an amicus brief in this action. REQUEST FOR PRODUCTION NO. 5: Produce all documents constituting communications related to Proposition 8 that you prepared for public distribution.
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RESPONSE TO REQUEST FOR PRODUCTION NO. 5: In addition to their General Objections, Plaintiff-Intervenor further objects to this Request on the grounds that it is vague and ambiguous. Plaintiff-Intervenor also objects to this Request on the grounds that it seeks documents or materials equally available to Defendant-Intervenors. PlaintiffIntervenor further objects to this Request on the grounds that it is overly broad and unduly burdensome. Plaintiff-Intervenor also objects to this Request on the grounds that it is unlikely to lead to the discovery of relevant material, as neither Plaintiff-Intervenor nor its agents were at any time acting in their official capacity as an opponent of Proposition 8. Subject to these objections, Plaintiff-Intervenor will produce non-privileged, reasonably responsive documents to the extent they exist and are in Plaintiff-Intervenor's possession, custody, or control and reflect any documents prepared by the Plaintiff-Intervenor and its agents acting in their official capacities on or before June 18, 2009, the date that Plaintiff-Intervenor filed an amicus brief in this action. REQUEST FOR PRODUCTION NO. 6: Produce all documents constituting postings related to Proposition 8 that were made by you on social networking websites, including but not limited to Facebook, MySpace, and Twitter. RESPONSE TO REQUEST FOR PRODUCTION NO. 6: In addition to their General Objections, Plaintiff-Intervenor further object to this Request on the grounds that it is vague and ambiguous. Plaintiff-Intervenor also objects to this Request on the grounds that it seeks documents or materials equally available to Defendant-Intervenors. PlaintiffIntervenor further objects to this Request on the grounds that it is overly broad and unduly burdensome. Plaintiff-Intervenor also objects to this Request on the grounds that it is unlikely to lead to the discovery of relevant material, as neither Plaintiff-Intervenor nor its agents were at any time acting in their official capacity as an opponent of Proposition 8. Subject to these objections, Plaintiff-Intervenor will produce non-privileged, reasonably responsive documents to the extent they exist and are in Plaintiff-Intervenor's possession, custody, or control and reflect any documents by the Plaintiff-Intervenor and its agents acting in their official

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capacities on or before June 18, 2009, the date that Plaintiff-Intervenor filed an amicus brief in this action. REQUEST FOR PRODUCTION NO. 7: The following request is limited to you and those who provided you with advice, counseling, information, or services with respect to Proposition 8, including about your position on and understanding of its meaning, intent, effects if enacted, or effects if rejected; including communications among or between any two or more of the following persons or entities: PlaintiffIntervenor City and County of San Francisco, including attorney Dennis Herrera and Mayor Gavin Newsom and any other person acting or purporting to act on its behalf; Defendant Edmund G. Brown, Jr., in his personal capacity or in his official capacity as Attorney General of California; Defendant Arnold Schwarzenegger, in his official capacity as Governor of California; and organizations opposed to Proposition 8, including but not limited to the Human Rights Campaign, Californians Against Eliminating Basic Rights, the Courage Campaign, Lambda Legal, National Center for Lesbian Rights, Equality Federation, Freedom to Marry, Gay and Lesbian Alliance Against Defamation, National Gay and Lesbian Task Force, the American Civil Liberties Union, and Gay & Lesbian Advocates & Defenders. Produce all documents that constitute analysis of, or communications related to, one or both of the following topics: (1) campaign or communications strategy in connection with Proposition 8, before or after the election; and (2) messages to be conveyed to voters regarding Proposition 8, before or after the election, without regard to whether the voter or voter groups were viewed as likely supporters or opponents or undecided about Proposition 8 and without regard to whether the messages were actually disseminated or merely contemplated. RESPONSE TO REQUEST FOR PRODUCTION NO. 7: In addition to their General Objections, Plaintiff-Intervenor further objects to this Request on the grounds that it is vague and ambiguous. Plaintiff-Intervenor further objects to this Request to the extent it calls for communications between the City Attorney's Office and its co-counsel in Marriage Cases and Strauss v. Horton and related litigation concerning such litigation on the grounds that such communications are protected by the attorney-client privilege and work product doctrines. PlaintiffCCSF's A's to Prop 8's RFPD #2 CASE NO. 09-CV-2292 VRW

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Intervenor also objects to this Request on the grounds that it seeks documents or materials equally available to Defendant-Intervenors. Plaintiff-Intervenor further objects to this Request on the grounds that it is overly broad and unduly burdensome. Plaintiff-Intervenor also objects to this Request on the grounds that it is unlikely to lead to the discovery of relevant material, as neither Plaintiff-Intervenor nor its agents were at any time acting in their official capacity as an opponent of Proposition 8. Further, as Defendant-Intervenors continue to assert that communications similar to those covered by this Request are protected by the First Amendment, Plaintiff-Intervenor objects that this Request is made in bad faith and serves only to harass and retaliate against Plaintiff-Intervenor for seeking legitimate discovery. Subject to these objections, Plaintiff-Intervenor will produce non-privileged, reasonably responsive documents to the extent they exist and are in Plaintiff-Intervenor's possession, custody, or control and reflect any communications by the Plaintiff-Intervenor and its agents acting in their official capacities on or before June 18, 2009, the date that Plaintiff-Intervenor filed an amicus brief in this action. Dated: November 18, 2009 DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex & Special Litigation RONALD P. FLYNN VINCE CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys By /s/ RONALD P. FLYNN Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

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PROOF OF SERVICE I, Martina Hassett, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorney's Office of San Francisco, Fox Plaza Building, 1390 Market Street, Seventh Floor, San Francisco, CA 94102. On September 18, 2009, I served the following document(s): PLAINTIFF-INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S RESPONSES TO DEFENDANT-INTERVENORS' PROPOSITION 8 PROPONENTS' SECOND SET OF DOCUMENT REQUESTS on the following persons at the locations specified: GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo GIBSON, DUNN & CRUTCHER LLP 333 S. Grand Avenue Los Angeles, CA 90071 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

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Kenneth C. Mennemeier Andrew W. Stroud MENNEMEIER, GLASSMAN & STROUD LLP 980 9th Street, Suite 1700 Sacramento, CA 95814-2736 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for The Administration Defendants Judy W. Whitehurst THE OFFICE OF COUNTY COUNSEL 500 West Temple Street, Rm. 652 Los Angeles, CA 90012-2713 T: [phone] F: [phone] [e-mail] Attorneys for Defendant Dean C. Logan Registrar-Recorder/County Clerk, County of Los Angeles

Deputy Attorney General Government Law Section California Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 T: [phone] F: [phone] [e-mail] [e-mail] Attorneys for Defendant Attorney General Edmund G. Brown Jr.

Brian E. Washington Claude F. Kolm THE OFFICE OF THE COUNTY COUNSEL 1221 Oak Street, Suite 450 Oakland, CA 94612 T: [phone] F: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Defendant Patrick O'Connell Clerk-Recorder of the County of Alameda

Charles J. Cooper David H. Thompson COOPER AND KIRK, PLLC 1523 New Hampshire Ave. N.W. Washington, D.C. 20036 T: [phone] F: [phone] M: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Defendants-Intervenors Prop 8 Proponents and Protectmarriage.com in the manner indicated below:

BY E-MAIL: I sent true and correct copies of the above document in PDF format by e-mail to the above addresses. CCSF's A's to Prop 8's RFPD #2 CASE NO. 09-CV-2292 VRW

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I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed September 18, 2009, at San Francisco, California. /s/ Martina Hassett

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