Perry v. Scharzenneger Exhibits to Prop. 8 Proponents' Response to April 13, 2010, Order to Show Cause Why Record of Evidence Should Not Be Closed, And Motion for Contempt, No. 09-Cv-2292 (N.D.cal. Apr. 16, 2010)

Case3:09-cv-02292-VRW Document633 Filed04/16/10 Page1 of 4
1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Nicole J. Moss (DC Bar No. 472424)*
5 nmoss@cooperkirk.com
Peter A. Patterson (Ohio Bar No. 0080840)*
6 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 Telephone: (202) 220-9600, Facsimile: (202) 220-9601
8 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
9 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
11 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
12 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
13 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and
16 PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
17
* Admitted pro hac vice
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20 KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.
21 ZARRILLO, CASE NO. 09-CV-2292 VRW
22 DECLARATION OF JESSE
Plaintiffs, PANUCCIO IN SUPPORT OF
23 DEFENDANT-INTERVENORS’
v. RESPONSE TO APRIL 13, 2010
24 ORDER TO SHOW CAUSE AND
ARNOLD SCHWARZENEGGER, in his official MOTION FOR CONTEMPT
25 capacity as Governor of California; EDMUND
Judge: Chief Judge Vaughn R. Walker
26 G. BROWN, JR., in his official capacity as
Attorney General of California; MARK B.
27 HORTON, in his official capacity as Director of
the California Department of Public Health and
28 State Registrar of Vital Statistics; LINETTE
DECLARATION OF JESSE PANUCCIO

CASE NO. 09-CV-2292 VRW
1 SCOTT, in her official capacity as Deputy

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

15
ALLIANCE DEFENSE FUND
16 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
17 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
18
Jordan W. Lorence (DC Bar No. 385022)*
19 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
20 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
22 * Admitted pro hac vice
23
24
25
26
27
28

1 I, Jesse Panuccio, declare as follows:

2 1. I am an attorney licensed to practice law in the State of Florida and the District of
3
Columbia and am admitted pro hac vice in this case. I am an associate at the law firm of Cooper &
4
Kirk, PLLC, counsel of record for Defendant-Intervenors Dennis Hollingsworth, Gail Knight,
5
Martin Gutierrez, Mark Jansson, and ProtectMarriage.com. I make this declaration in support of
6
7 Defendant-Intervenors’ Response to the Court’s April 13 Order to Show Cause. I have personal
8 knowledge of the facts stated herein and could testify and would testify competently thereto if
9 called upon to do so.

10 2. Attached hereto as Exhibit A is a true and correct copy of a letter counsel for
11
Californians Against Eliminating Basic Rights sent to me on March 31, 2010.
12
3. Attached hereto as Exhibit B is a true and correct copy of a letter I sent on March 23,
13
2010, to counsel for No on Proposition 8, Campaign for Marriage Equality, A Project of the
14
15 American Civil Liberties Union (“ACLU”) and Equality California (“EQCA”). Attached hereto as
16 Exhibit C is a true and correct copy of a letter counsel for ACLU sent to me on March 31, 2010.
17 Attached hereto as Exhibit D is a true and correct copy of a letter counsel for EQCA sent to me on
18 April 16, 2010.
19
4. Attached hereto as Exhibit E is a true and correct copy of a letter I sent on April 13,
20
2010, to counsel for the ACLU and EQCA.
21
5. Attached hereto as Exhibit F is a true and correct copy of a letter counsel for ACLU sent
22
23 to me on April 15, 2010.
24 6. Attached hereto as Exhibit G is a true and correct copy of a letter I sent on April 15,
25 2010, to counsel for the ACLU and EQCA.

26
7. Attached hereto as Exhibit H is a true and correct copy of a letter counsel for Plaintiffs
27
sent to counsel for the ACLU sent to me on April 15, 2010.
28
1
1 8. Attached hereto as Exhibit I is a true and correct copy of a letter counsel for ACLU sent
2 to me on April 16, 2010.
3
9. Attached hereto as Exhibit J is a true and correct copy of a letter counsel for ACLU sent
4
to counsel for Plaintiffs on April 16, 2010.
5
7 I declare under penalty of perjury that the foregoing is true and correct. Executed this 16th day of
8 April, 2010.
9 By: /s/ Jesse Panuccio

Jesse Panuccio
10
11
12
13
14
15
16
17
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Case3:09-cv-02292-VRW Document633-1 Filed04/16/10 Page1 of 3
Exhibit A
Exhibit B
Cooper & Kirk

Lawyers
A Professional Limited Liability Company
1523 New Hampshire Avenue, N.W.
Jesse Panuccio Washington, D.C. 20036 (202) 220-9600
jpanuccio@cooperkirk.com Fax (202) 220-9601
March 23, 2010
VIA ELECTRONIC MAIL
Mr. Stephen V. Bomse

Orrick, Herrington & Sutcliffe LLP
450 Howard Street
San Francisco, CA 94105-2669
Ms. Lauren Whittemore

Fenwick & West LLP
555 California Street, Suite 1200
San Franciso, CA 94104
Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW
Dear Mr. Bomse and Ms. Whittemore:
I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

and your clients (hereinafter “ALCU” and “EQCA”) in the above-referenced matter. At the
hearing on March 16, 2010, you twice represented that the ACLU and EQCA had produced all
“public” documents responsive to the document requests in the subpoenas served by Defendant-
Intervenors. See Hr’g of March 16, 2010, Tr. (rough) at 20:2-3 (“And of course all of the public
documents were produced voluntarily.”); id. at 64:10-12 (“I think [Plaintiffs’ counsel] also has
made the argument that I was about to make in this reply which is all public documents were
produced.”). See also id. at 55:3-5 (statement of Plaintiffs’ counsel) (“There were many radio
ads, many television ads, many print materials, many documents that were produced by the third
parties before trial.”). A similar representation was also made in your clients’ joint filing of
March 11, 2010. See Doc # 614 at 6 (“But if it was public, then EQCA and the ACLU have
already produced it voluntarily.”).
To date, the has ACLU produced a total of only 149 pages (81 documents) and EQCA
has produced a total of only 286 pages (also consisting of fewer total documents). Upon re-
review of these minimal productions, we are concerned that the ACLU and EQCA are in
possession of responsive, public documents that have not, in fact, been produced by these
organizations. For example, it appears that neither the ACLU nor EQCA has, to the best of our
knowledge, produced a single audio-video file of radio, television, or Internet advertisements,
despite the massive volume of radio, television, and Internet advertising conducted by the
Cooper & Kirk

Lawyers
Stephen V. Bomse, Esq.

Lauren Whittemore, Esq.
March 23, 2010
Page 2 of 2
ACLU, EQCA, and other No-on-8 groups. Indeed, the following responsive videos appear on
the ACLU’s website, yet were not produced by the ACLU: http://www.aclu.org/lgbt-
rights/freedom-alert-we-could-lose-marriage; http://www.aclu.org/lgbt-rights/why-marriage-
matters; http://www.aclu.org/lgbt-rights/freedom-alert-california-marriage-danger. Given the
representations made in the ACLU’s and EQCA’s declarations in recent days—including that
hundreds of individuals were deeply engaged in the formulation of $45 million worth of an
umbrella coalition’s messaging and strategy (and thus received final copies of public messaging
such as blast emails, audio-video files, and the like)—the organizations and their members
presumably possess all such public documents that are responsive to the subpoenas. See, e.g.,
Doc # 609 at ¶ 12 (averring that “[m]any of the staff and board members of EQCA joined
campaign-related email lists and as a result received numerous emails each week during the
campaign.”); Doc # 610 at ¶ 7 (averring that the ACLU was “regularly working with
approximately 10 … groups” to “formulate[] messages tailored to [specific] communities”).
Accordingly, Defendant-Intervenors must respectfully request that, pursuant to the

representations made to the Court, the ACLU and EQCA immediately supplement their limited
productions with all responsive, public documents—including, but not limited to, television,
radio, and other audio-video files, flyers, Internet and blog posts, print ads, and blast emails—in
their possession. If the ACLU and EQCA refuse to make such a production, then we must
respectfully request that you provide a basis for withholding such documents and correct the
record with the Court so that Defendant-Intervenors can promptly consider what further action
may be necessary.
Thank you for your attention to this matter.

Exhibit C
Exhibit D
Exhibit E
Cooper & Kirk

Lawyers
April 13, 2010
VIA ELECTRONIC MAIL
Mr. Stephen V. Bomse

450 Howard Street
Ms. Lauren Whittenmore

Fenwick & West LLP
I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

(hereinafter “Proponents”) and your clients (hereinafter “ALCU” and “EQCA”) in the above-
referenced matter. The Ninth Circuit’s April 12 order dismissing your clients’ appeal of the
District Court’s March 5 and March 22 orders means that the stay of those orders is no longer in
place. Accordingly, the ACLU and EQCA are under an obligation “to produce all documents in
[their] possession that contain, refer or relate to arguments for or against Proposition 8, except
those communications solely among members of [the] core group[s]” the District Court has
identified. Doc # 610 at 14. According to the District Court’s March 22 order, the ACLU and
EQCA were to meet that obligation in full by March 31, 2010, leaving Proponents twelve days—
until April 12, 2010—to review the documents and “make [an] appropriate motion or
submission” to “supplement their trial record with documents obtained through this production.”
Doc # 623 at 24.
In an order issued today, the District Court noted that the Ninth Circuit stay was no
longer in effect and that Proponents had not yet made the April 12 submission contemplated in
the March 22 order. Proponents have not made that submission, of course, because during the
pendency of the stay the ACLU and EQCA did not produce any documents pursuant to the
District Court’s orders. The District Court has now ordered Proponents to “show cause in
writing not later than April 16, 2010 at 5 PM PDT why the evidentiary record should not now be
closed.” See Doc # 631 at 2. Accordingly, Proponents must have possession of the documents
Cooper & Kirk

Lawyers

April 13, 2010
Page 2 of 2
the ACLU and EQCA are under an obligation to produce. We therefore respectfully request that
the ACLU and EQCA immediately meet their production obligations under the March 5 and
March 22 orders.
Thank you for your prompt attention to this matter.

Exhibit F
Exhibit G
Cooper & Kirk

Lawyers
April 15, 2010
VIA ELECTRONIC MAIL
Mr. Stephen V. Bomse, Esq.

450 Howard Street
Ms. Lauren Whittenmore, Esq.

Fenwick & West LLP
Thank you for your letter of today responding to Proponents’ April 13 letter requesting
that, in light of the Ninth Circuit’s dismissal of your clients’ appeal, the ACLU and EQCA
immediately meet their production obligations under the District Court’s March 5 and March 22
orders. In your letter, you note that the “ACLU and EQCA continue to believe that the orders
from which their prior appeal and writ petition were taken were erroneous.” Ltr. from S. Bomse
to J. Panuccio (April 15, 2010) at 1 (hereinafter “Bomse Ltr.”). You nonetheless advance the
following proposal: “if the district court is willing to amend its March 22, 2010 Order, Doc #623,
in a manner consistent with the observations of the Ninth Circuit concerning the existence of a
privilege for communications regarding the formulation of campaign strategy and messages
among persons who are members of a core group associated in a political campaign, without
regard to whether such persons ‘span[] more than one entity,’ [then] the ACLU and EQCA will
promptly comply with the order for production as thus amended and will not seek a further stay
of that order.” Bomse Ltr. at 1.
We agree that while the Ninth Circuit’s most recent order did not address all of your
clients’ First Amendment objections to the March production orders, it does make clear that the
Court of Appeals, in its January 4 opinion, “did not hold that the privilege cannot apply to a core
group of associated persons spanning more than one entity.” Accordingly, we are amenable to
your clients’ proposal so long as the Ninth Circuit’s further guidance is applied consistently and
evenhandedly to both your clients’ and Proponents’ claims of privilege—which would involve
Cooper & Kirk

Lawyers

April 15, 2010
Page 2 of 2
revisiting not only the March 5 and March 22 Orders, but also the Court’s prior discovery and
evidentiary rulings with respect to Proponents’ claims of privilege. We also note that to the
extent the District Court requires further “information from which a functional interpretation of
[an inter-organizational] core group … could be derived,” the opportunity to furnish such
information must be afforded to both your clients and Proponents. Order, Perry v.
Schwarzenegger, No. 10-15649 (9th Cir. Apr. 12, 2010) at 9 (quoting Doc # 623 at 10). Short of
such consistent and evenhanded application of the Ninth Circuit’s additional guidance,
Proponents would have no choice but to oppose any amendment to the March 5 and March 22
Orders.
As I detailed in my April 13 letter, the March 22 Order contemplated that Proponents

would have twelve days from the date of your clients’ production to “make [an] appropriate
motion or submission” to “supplement their trial record with documents obtained through this
production.” Doc # 623 at 24. Because the ACLU and EQCA have not produced any
documents to date, Proponents have, of course, been unable to make such a submission.
Nonetheless, the Court has ordered Proponents to “show cause in writing not later than April 16,
2010 at 5 PM PDT why the evidentiary record should not now be closed.” Doc # 631 at 2. In
our response to the April 13 Order, we will explain that the ACLU and EQCA have not yet
produced any documents and we will advise the Court of this chain of correspondence. For
purposes of drafting our response, would you please advise as to when, and in what manner, you
plan to approach the Court with your proposal?
Lastly, I note that in our response to the April 13 Order, we will request that if the Court
rejects your proposal to amend the March 22 Order, then it hold your clients in contempt for
failure to comply with the March 5 and March 22 Orders.
Thank you for your continued and prompt attention to this matter.
Cc: Theodore J. Boutrous Jr.

James Esseks
Exhibit H
Client Matter No.: T 36330-00001
Theodore J. Boutrous Jr.

Direct: 213.229.7804
Fax: 213.229.6804
TBoutrous@gibsondunn.com
April 15, 2010
VIA E-MAIL
Stephen V. Bomse
Orrick
The Orrick Building
405 Howard Street
Re: Perry v. Schwarzenegger, N. D. Cal. Case No. C-09-2292-VRW
Dear Steve:
I write in response to your letter proposing that the parties agree to the district court’s
amendment of its March 22, 2010 order (Doc. #623) directing the ACLU and Equality
California to produce documents in response to Proponents’ document requests in light of the
Ninth Circuit’s April 12, 2010 ruling.
In principle, Plaintiffs would not object to the district court’s amending its order in light of
the Ninth Circuit’s ruling, but Plaintiffs reserve the right to weigh in with the district court
regarding the content of any such amendment. As you know, while the Ninth Circuit noted
that it “did not hold [in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (“Perry I”)]
that the privilege cannot apply to a core group of associated persons spanning more than one
entity,” slip op. at 9, it also noted that the district court had ruled that, even if such a privilege
did provide protection in some circumstances, the ACLU and Equality California “‘in any
event failed to furnish the magistrate [judge] information from which a functional
interpretation of [an inter-organizational] core group . . . could be derived.’” Id. (quoting
Doc #623 at 10).
In addition, as to Proponents’ claim, Magistrate Judge Spero declined to deem privileged

communications between Proponents and organizations other than ProtectMarriage.com on
the ground that “[P]roponents have never asserted a First Amendment privilege over
communications to other organizations.” Doc #372 at 2-3. The magistrate judge further held
Stephen V. Bomse
April 15, 2010
Page 2
that “[e]ven if the Court were to conclude that the First Amendment privilege had been
properly preserved as to the communication among the members of core groups other than
the Yes on 8 and ProtectMarriage.com campaign, proponents have failed to meet their
burden of proving that the privilege applies to any documents in proponents’ possession,
custody or control.” Id. The magistrate judge explained that “[t]here is no evidence before
the Court regarding any other campaign organization, let alone the existence of a core group
within such an organization,” and “no evidence before the Court that any of the documents at
issue are private internal communications of such a core group regarding formulation of
strategy and messages.” Id. at 3.
Lastly, Plaintiffs appreciate your clients’ desire and willingness to end this discovery dispute
and request a copy of the production your clients provide to Proponents.
Very truly yours,
/s/ Theodore J. Boutrous Jr.

Theodore J. Boutrous Jr.
TJB/eam
cc: Jesse Panuccio
Lauren Whittemore
James Esseks
100850163_1.DOC
Exhibit I
Exhibit J

Perry v. Scharzenneger Exhibits to Prop. 8 Proponents&#39; Response to April 13, 2010, Order to Show Cause Why Record of Evidence Should Not Be Closed, And Motion for Contempt, No. 09-Cv-2292 (N.D.cal. Apr. 16, 2010)

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Case3:09-cv-02292-VRW Document633 Filed04/16/10 Page1 of 4

1 COOPER AND KIRK, PLLC

8 LAW OFFICES OF ANDREW P. PUGNO

11 ALLIANCE DEFENSE FUND

15 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

20 KRISTIN M. PERRY, SANDRA B. STIER,

DECLARATION OF JESSE PANUCCIO

1 SCOTT, in her official capacity as Deputy

14 Additional Counsel for Defendant-Intervenors

DECLARATION OF JESSE PANUCCIO

1 I, Jesse Panuccio, declare as follows:

9 called upon to do so.

23 to me on April 15, 2010.

25 2010, to counsel for the ACLU and EQCA.

9 By: /s/ Jesse Panuccio

Cooper & Kirk

March 23, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse

Ms. Lauren Whittemore

Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW

Dear Mr. Bomse and Ms. Whittemore:

I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

Cooper & Kirk

Stephen V. Bomse, Esq.

Accordingly, Defendant-Intervenors must respectfully request that, pursuant to the

Thank you for your attention to this matter.

Cooper & Kirk

April 13, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse

Ms. Lauren Whittenmore

Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW

Dear Mr. Bomse and Ms. Whittemore:

I write in regards to the ongoing discovery dispute between the Defendant-Intervenors

Cooper & Kirk

Stephen V. Bomse, Esq.

Thank you for your prompt attention to this matter.

Cooper & Kirk

April 15, 2010

VIA ELECTRONIC MAIL

Mr. Stephen V. Bomse, Esq.

Ms. Lauren Whittenmore, Esq.

Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292-VRW

Dear Mr. Bomse and Ms. Whittemore:

Cooper & Kirk

Stephen V. Bomse, Esq.

As I detailed in my April 13 letter, the March 22 Order contemplated that Proponents

Cc: Theodore J. Boutrous Jr.

Client Matter No.: T 36330-00001

Theodore J. Boutrous Jr.

April 15, 2010

Re: Perry v. Schwarzenegger, N. D. Cal. Case No. C-09-2292-VRW

In addition, as to Proponents’ claim, Magistrate Judge Spero declined to deem privileged

Very truly yours,

/s/ Theodore J. Boutrous Jr.

Anda mungkin juga menyukai

Perry v. Scharzenneger Exhibits to Prop. 8 Proponents' Response to April 13, 2010, Order to Show Cause Why Record of Evidence Should Not Be Closed, And Motion for Contempt, No. 09-Cv-2292 (N.D.cal. Apr. 16, 2010)

Perry v. Scharzenneger Exhibits to Prop. 8 Proponents' Response to April 13, 2010, Order to Show Cause Why Record of Evidence Should Not Be Closed, And Motion for Contempt, No. 09-Cv-2292 (N.D.cal. Apr. 16, 2010)