Case3:09-cv-02292-VRW Document233 Filed10/16/09 Page1 of 6

1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 [email protected]
David H. Thompson (DC Bar No. 450503)*
3 [email protected]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 [email protected]
Nicole J. Moss (DC Bar No. 472424)*
5 [email protected]
Jesse Panuccio (DC Bar No. 981634)*
6 [email protected]
Peter A. Patterson (OH Bar No. 0080840)*
7 [email protected]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
8 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

9 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
10 [email protected]
101 Parkshore Drive, Suite 100, Folsom, California 95630
11 Telephone: (916) 608-3065, Facsimile: (916) 608-3066

12 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
13 [email protected]
James A. Campbell (OH Bar No. 0081501)*
14 [email protected]
15100 North 90th Street, Scottsdale, Arizona 85260
15 Telephone: (480) 444-0020, Facsimile: (480) 444-0028

16 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
17 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
18
* Admitted pro hac vice
19
UNITED STATES DISTRICT COURT
20 NORTHERN DISTRICT OF CALIFORNIA

21 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO,
22 CASE NO. 09-CV-2292 VRW
Plaintiffs, DEFENDANT-INTERVENORS’
23
REPLY IN SUPPORT OF MOTION
24 v. FOR A STAY OF DISCOVERY

25 ARNOLD SCHWARZENEGGER, in his official Judge: Chief Judge Vaughn R. Walker

capacity as Governor of California; EDMUND G.
26 BROWN, JR., in his official capacity as Attorney
27 General of California; MARK B. HORTON, in his
official capacity as Director of the California
28
DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR A STAY OF DISCOVERY
CASE NO. 09-CV-2292 VRW
 Case3:09-cv-02292-VRW Document233 Filed10/16/09 Page2 of 6

1 Department of Public Health and State Registrar of

Vital Statistics; LINETTE SCOTT, in her official
2 capacity as Deputy Director of Health Information
& Strategic Planning for the California Department
3
of Public Health; PATRICK O’CONNELL, in his
4 official capacity as Clerk-Recorder for the County
of Alameda; and DEAN C. LOGAN, in his official
5 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
6
Defendants,
7
and
8
PROPOSITION 8 OFFICIAL PROPONENTS
9 DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAK-
10 SHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM –
11 YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
12
Defendant-Intervenors.
13

14
Additional Counsel for Defendant-Intervenors
15

16 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
17 [email protected]
101 Parkshore Drive, Suite 100, Folsom, California 95630
18 Telephone: (916) 932-2850, Facsimile: (916) 932-2851
19 Jordan W. Lorence (DC Bar No. 385022)*
[email protected]
20 Austin R. Nimocks (TX Bar No. 24002695)*
[email protected]
21 801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: (202) 393-8690, Facsimile: (202) 347-3622
22
* Admitted pro hac vice
23

24

25

26

27

28
DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR A STAY OF DISCOVERY
CASE NO. 09-CV-2292 VRW
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1 A. The Court Should Deny Plaintiffs’ Request for an Order Compelling Production
within Seven Days
2
Complaining that Defendant-Intervenors’ conduct has unreasonably delayed production to
3
Plaintiffs of requested documents, Plaintiffs not only oppose our request for a stay pending appeal
4
of this Court’s discovery ruling, but also ask this Court to enter an order compelling production of
5
the non-public and anonymous documents subject to Defendant-Intervenors’ stay request within
6
seven days. Doc # 223 at 14; see also id. at 5-6. Defendant-Intervenors have alerted the parties
7
and the Court of their First Amendment concerns about Plaintiffs’ discovery requests, and have
8
sought judicial relief promptly and in good faith at every turn. If Defendant-Intervenors’ pending
9
motion for a stay is denied by this Court, Defendant-Intervenors will promptly seek a stay from the
10
Ninth Circuit and, further, will seek expedited review of the merits of their appeal. Under these
11
circumstances, Plaintiffs’ requested order should be denied.
12
(a) In their Supplemental Case Management Statement, Plaintiffs made clear that they
13
“plan to seek documents relating to Prop. 8’s genesis, drafting, strategy, objectives, advertising,
14
campaign literature, and Intervenors’ communications with each other, supporters, and donors.”
15
Doc. # 157 at 12. In other words, Plaintiffs announced their plan to seek virtually every document
16
in Defendant-Intervenors possession relating in any way to Prop. 8.
17
(b) As early as the case management hearing of August 19, 2009, counsel for Defendant-
18
Intervenors specifically flagged the sweeping discovery threatened by Plaintiffs as an issue that
19
could pose problems for the expedited litigation schedule sought by Plaintiffs and should be
20
resolved promptly. Counsel for Defendant-Intervenors explained that “some of the things that
21
[Plaintiffs] would like to inquire into of … the official Proposition 8 proponents … are issues that
22
we earnestly believe are not fit and appropriate for judicial inquiry, and that in fact, would raise the
23
gravest possible First-Amendment issues.” Tr. at 59. Counsel for Defendant-Intervenors
24
specifically “urge[d] the Court to give us an opportunity to fight this out in briefing to the Court
25
before we get down that road.” Id. at 60. Counsel for Plaintiffs responded by stating: (i) that
26
“statements that were made publicly” were clearly “subject to discovery”; (ii) that “some stuff … is
27
probably not on the table” and also that “subjective, unexpressed motivations … would not be
28
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1 inquir[ed] into” by Plaintiffs; and (iii) that “objectively-stated assertions … that may be

2 encompassed in documents and the like that may or may not have become public” constitute a

3 “gray-area.” Id. at 63-64. In acquiescing in the expedited litigation schedule, Defendant-

4 Intervenors relied on these representations. Id. at 68.

5 (c) In light of Plaintiffs’ concessions and recognition that “gray-area discovery decisions

6 … will [be] ma[d]e along the way,” counsel for Defendant-Intervenors stated at the August 19

7 hearing that he would “very much welcome [Plaintiffs’] clarification, perhaps, of some of the

8 points that were made in their supplemental case management order, in terms of what they intended

9 to inquire of the proponents.” Id. at 64, 68. Unfortunately, Plaintiffs never offered any such

10 clarification or reconsideration of the “gray area.” Instead, Plaintiffs propounded a set of document

11 requests that sought virtually every document in Defendant-Intervenors’ possession relating in any

12 way to Proposition 8. Doc # 187-3. As this Court recognized at the hearing of September 25,

13 2009, Plaintiffs’ Request No. 8 in particular was “exceedingly broad.” Tr. at 49.

14 On August 27, Defendant-Intervenors proposed limitations to Plaintiffs’ requests. Doc # 187-5.

15 Plaintiffs responded by rejecting any limiting interpretation save for one: they were not seeking

16 “internal communications among and between [Defendant-Intervenors] regarding Proposition 8 and

17 the related political campaign, except to the extent that [Defendant-Intervenors] deem such

18 communications responsive to Requests Nos. 9, 10, 13, 14, or 15.” Doc # 187-6. Subsequently,

19 Plaintiffs effectively retracted even this limitation. See Doc # 220-1 at 5 (requesting

20 “communications among and between any two or more of … Defendant-Intervenors”).

21 (d) Plaintiffs’ refusal to agree to any other limitations on their document requests left

22 Defendant-Intervenors with no choice but to move this Court for a protective order on September

23 15, 2009—well before the period for responding to Plaintiffs’ document requests had run. Doc #

24 187. This Court denied Defendant-Intervenors’ claim of First Amendment privilege on October 1,

25 2009. Doc # 214. The Court did, however, agree that Plaintiffs’ Request No. 8 was overly

26 burdensome and thus directed Plaintiffs to more carefully tailor the request. In the evening of

27 October 5, Plaintiffs issued a revised Request No. 8, Doc # 220-1, and on October 8, Defendant-

28 Intervenors noticed an appeal and moved this Court for a stay of its October 1 order. Docs # 220,
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1 222.

2 ***

3 In short, over the last seven weeks, Defendant-Intervenors have: (i) produced the documents

4 that Plaintiffs asserted were clearly subject to discovery; (ii) resisted producing documents that

5 Plaintiffs once agreed were off the table; and (iii) attempted to negotiate with Plaintiffs over what

6 they themselves once called a “gray area” of discovery. When negotiations failed to produce

7 agreement, Defendant-Intervenors promptly moved this Court for a protective order. It is thus not

8 true that the time that has passed since Plaintiffs first propounded their discovery requests is

9 somehow attributable to improper delays by Defendant-Intervenors. Instead, the delay is largely

10 attributable to Plaintiffs’ ever-shifting representations about their discovery requests and their

11 protracted refusal to limit or tailor those requests in any meaningful way.

12 Defendant-Intervenors are expeditiously following all of the proper procedures to seek judicial

13 protection against disclosure of what Plaintiffs themselves admit is “core political speech …

14 undeniably entitled to broad First Amendment protection.” Doc # 191 at 12. Defendant-

15 Intervenors believe that discovery of nonpublic and anonymous documents sought by Plaintiffs will

16 work a gross and irreparably harmful invasion of their First Amendment rights. Given the

17 seriousness of the claim, the Court should allow it to be resolved expeditiously by the Court of

18 Appeals and should deny Plaintiffs’ request to order production of disputed material within seven

19 days.

20 B. Briefing Schedule in the Ninth Circuit

21 At the hearing on October 14, 2009, Plaintiffs noted that the Ninth Circuit has set a briefing

22 schedule for Defendant-Intervenors’ appeal of this Court’s October 1 order. See Oct. 14, 2009 Tr.

23 at 96-97. That schedule appears to have been set pursuant to the Ninth Circuit’s routine practice of

24 establishing a normal briefing schedule once a case number is assigned. It was not proposed by

25 Defendant-Intervenors, who informed the Ninth Circuit in the notice of appeal that they intend to

26 seek an expedited briefing and argument schedule. Doc # 222.

27 C. This Court’s Jurisdiction Over the Stay Motion

28 At the hearing on October 14, the Court asked “is a motion to stay appropriate after a petition
3
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1 for a writ of manda[mus] has been filed in the Court of Appeals? I thought you asked the District

2 Court to stay its Order first, and then you proceed to the Court of Appeals. I wonder what the

3 procedural posture is at the Court of Appeals.” Tr. 93.

4 While it is true that “[o]nce a notice of appeal is filed, the district court is divested of

5 jurisdiction over the matters being appealed[,] … [t]he district court retains jurisdiction during the

6 pendency of an appeal to act to preserve the status quo.” Natural Res. Def. Council v. Southwest

7 Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). See also United States v. Pryately, 393 F.2d

8 129, 131 (6th Cir. 1968) (“The District Court was authorized to stay its judgment after filing of

9 notices of appeal and prior to docketing in this Court.”). Federal Rule of Appellate Procedure 8

10 requires that a party seeking a stay pending appeal first move for such relief in the district court.

11 Accordingly, Defendant-Intervenors noticed their appeal and have respectfully sought a stay from

12 this Court pending resolution of that appeal. This Court has jurisdiction to preserve the status quo.

13 That Defendant-Intervenors will seek mandamus in the alternative does not alter this

14 analysis. Defendant-Intervenors assert that the Ninth Circuit has jurisdiction over this

15 interlocutory appeal. Plaintiffs assert that the Ninth Circuit does not have jurisdiction. Doc # 223

16 at 6-9. Defendant-Intervenors thus indicated on their civil docketing statement that we would

17 seek mandamus in the alternative—that is, should the Ninth Circuit decide it does not have

18 jurisdiction. We have found no authority suggesting that this relatively common procedural

19 posture—an appeal with a petition for mandamus in the alternative—in any way alters the rule

20 that district courts retain jurisdiction to maintain the status quo even while proceedings are

21 pending in a higher court.

22

23 CONCLUSION

24 For the foregoing reasons, the Court should grant this motion for a stay.

25 Dated: October 16, 2009 COOPER AND KIRK, PLLC

26 ATTORNEYS FOR DEFENDANT-INTERVENORS

27 By: /s/Charles J. Cooper

Charles J. Cooper
28
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DEFENDANT-INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR A STAY OF DISCOVERY
CASE NO. 09-CV-2292 VRW