Professional Documents
Culture Documents
United States District Court Northern District of California
United States District Court Northern District of California
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Additional Counsel for Defendant-Intervenors
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document220 Filed10/08/09 Page3 of 7
7 For the following reasons, Defendant-Intervenors respectfully seek a stay of the discovery
8 authorized by the Court’s order entered October 1, 2009, Doc # 214, pending resolution of their appeal
15 with other discovery Plaintiffs have promised to seek) on First Amendment, relevance, and burden
17 15, 2009. Docs # 187, 197. The Court held a hearing on the motion on September 25, 2009.
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On October 1, 2009, the Court issued an order granting in part and denying in part the
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motion. Doc # 214. With respect to the relevance and burden objections, the Court granted the
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motion in part as it applied to Request No. 8, holding that the Request “is broader than necessary
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to obtain all relevant discovery,” and directing Plaintiffs to “revise request no 8 to target those
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23 communications most likely to be relevant.” Id. at 15-16. With respect to the remainder of
24 Defendant-Intervenors’ relevance and burden objections, the motion was denied. Id. at 17. With
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We are noticing this motion for January 7, 2010, because it appears that this Court’s
26 calendar is closed until that date. However, we recognize that this motion needs to be resolved
promptly and will abide by any expedited hearing schedule the Court deems appropriate. We
27 are also willing to waive a hearing altogether. We would also welcome an expedited briefing
schedule. Defendant-Intervenors attempted to reach a stipulation in this regard with Plaintiffs,
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document220 Filed10/08/09 Page4 of 7
1 respect to Defendant-Intervenors’ claim of First Amendment privilege, the Court denied the
2 motion. Id. at 17 (“Proponents have not shown that the First Amendment privilege is applicable
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to the discovery sought by plaintiffs.”). The court also provided specific guidance on the types of
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materials that would be relevant and would, accordingly, have to be produced by Defendant-
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Intervenors. See id. at 16-17.
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8 ARGUMENT
9 Four factors inform whether a federal court should issue a stay pending appeal: (1) the
10 appellants’ likelihood of success on the merits; (2) the possibility of irreparable harm absent a
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stay; (3) the possibility of substantial injury to other parties if a stay is issued; and (4) the public
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interest. See Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)
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(citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When applying these four factors, the
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15 Ninth Circuit employs a “sliding scale” approach: the more sharply the equities weigh in favor of
16 a stay, the less demanding of a showing of likely success on the merits is required. See Natural
17 Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007), vacated on other grounds by
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508 F.3d 885 (9th Cir. 2007); Golden Gate, 512 F.3d at 1116. See id. A consideration of the
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factors and analysis identified by the Ninth Circuit demonstrates that Defendant-Intervenors are
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entitled to a stay.
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7 irreparable harm and equities weighing “sharply in [our] favor,” as demonstrated below. Golden
16 injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); accord Brown v. Cal. DOT, 321
17 F.3d 1217, 1226 (9th Cir. 2003). Not surprisingly, then, the Ninth Circuit has repeatedly found
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that the “fact that the [stay applicant has] raised serious First Amendment questions compels a
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20 The collateral order doctrine allows interlocutory review for a “narrow class of
decisions that do not terminate the litigation, but are sufficiently important and collateral to the
21 merits that they should nonetheless be treated as final.” Will v. Hallock, 546 U.S. 345, 347
(2006) (quotation marks omitted). To be reviewable, a decision must “[1] conclusively
22 determine the disputed question, [2] resolve an important issue completely separate from the
merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” In
23 re: Napster, Inc. Copyright Litig., 479 F.3d 1078, 1088 (9th Cir. 2007) (brackets in original).
The Ninth Circuit has regularly applied the collateral order doctrine to review discovery-
24 related decisions involving claims of privilege, and jurisdiction is equally present here. See,
e.g., Bittaker v. Woodford, 331 F.3d 715, 718 (9th Cir. 2003) (en banc) (attorney-client
25 privilege); In re Napster, 479 F.3d at 1087-88 (attorney-client privilege); United States v.
Griffin, 440 F.3d 1138, 1141 (9th Cir. 2006) (marital privilege); United States v. Austin, 416
26 F.3d 1016, 1020 (9th Cir. 2005) (joint-defense privilege); Agster v. Maricopa County, 422
F.3d 836, 838 (9th Cir. 2005) (peer-review privilege involving medical files); Osband v.
27 Woodford, 290 F.3d 1036, 1039-41 (9th Cir. 2002) (protective order involving the attorney-
client privilege); Wharton v. Calderon, 127 F.3d 1201, 1203-04 (9th Cir. 1997) (protective
28 order involving the attorney-client privilege); see also United States v. Philip Morris Inc., 314
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document220 Filed10/08/09 Page6 of 7
1 finding that there exists the potential for irreparable injury, or that at the very least the balance of
2 hardships tips sharply in [the stay applicant’s] favor.” Cmty. House, Inc. v. City of Boise, 490
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F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted; emphasis added); accord Sammartano
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v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002). Thus, “[t]o establish irreparable
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injury in the First Amendment context” a stay applicant “need only demonstrate the existence of a
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7 colorable First Amendment claim.” Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1225 (9th
15 fully applies here. And even if the Ninth Circuit were to find that the discovery at issue was not
16 privileged, the most Plaintiffs could claim is a delay in the proceedings below. But “[a] mere
17 assertion of delay does not constitute substantial harm.” Philip Morris Inc., 314 F.3d at 622.
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Moreover, Defendant-Intervenors will seek expedited treatment of their appeal. This Court should
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thus conclude that the balance of hardships tips sharply in favor of issuing a stay pending appeal.
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D. THE PUBLIC INTEREST WEIGHS IN FAVOR OF A STAY
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“Courts . . . have consistently recognized the significant public interest in upholding First
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23 Amendment principles.” Sammartano, 303 F.3d at 974 (listing cases). More particularly, courts
24 have repeatedly acknowledged that the public interest suffers when core First Amendment rights
25 of political expression are jeopardized and political participation is chilled. See, e.g., Buckley v.
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Valeo, 424 U.S. 1, 71 (1976) (noting that “the public interest . . . suffers” from chilled political
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-VRW Document220 Filed10/08/09 Page7 of 7
1 participation); Sammartano, 303 F.3d at 974 (“[T]he public interest is better served by . . .
2 protecting the core First Amendment right of political expression.”).
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Denying this stay and forcing immediate production of the requested documents will
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curtail the First Amendment freedoms surrounding voter-initiated measures—a political process
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which the Supreme Court has recognized as vitally important in our democratic form of
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7 government. See James v. Valtierra, 402 U.S. 137, 142-43 (1971); McIntyre v. Ohio Elections
8 Comm’n, 514 U.S. 334, 347 (1995). We earnestly believe that it will cause future initiative
9 proponents to censor their speech with campaign volunteers, donors, supporters, and agents, for
10 fear that their communications will be publicly disclosed in future litigation; it will discourage
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supporters from communicating directly with initiative proponents; and it will silence initiative
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supporters who want to remain anonymous. These concerns are especially salient where, as here,
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the losing side of a hard-fought referendum campaign seeks complete disclosure of the successful
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15 campaign strategy of the winning side, and it does so while preparing for a political “rematch.”
16 Thus, “the public interest is better served by . . . protecting the core First Amendment right of
17 political expression,” Sammartano, 303 F.3d at 974, at least until the Court of Appeals has had an
18 opportunity to consider these important issues on the merits.
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CONCLUSION
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For the foregoing reasons, the Court should grant this motion for a stay.
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Dated: October 8, 2009 COOPER AND KIRK, PLLC
23 ATTORNEYS FOR DEFENDANTS-INTERVENORS
25 Charles J. Cooper
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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009
CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page1 of 6
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Additional Counsel for Defendant-Intervenors
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DECLARATION OF JESSE PANUCCIO IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR A STAY PENDING
APPEAL – CASE NO. 09-CV-2292 VRW
Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page3 of 6
2 Hollingsworth, Gaill Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and
4 Renewal, have personal knowledge of the facts in this declaration, and if called as a witness, I could
6 l. Attached hereto as Exhibit A is a true and correct copy of a letter from Plaintiffs'
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DECLARATION OF JESSE PANUCCIO IN SUPPORT OF DEFENDANT-INTERVENORS' MOTION FOR A STAY PENDING
APPEAL - CASE NO. 09-CV -2292 VR W
Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page4 of 6
Exhibit A
Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page5 of 6
GIBSON,DUNN &CRUTCHER LLP
LAWYERS
A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
October 5,2009
Dear Nicole:
Pursuant to the Court's Order of October 1,2009 (see Dkt. #2 14 at pp. 16-17), I have set
forth below Plaintiffs' revised request for production number 8. I am generally available this
week to discuss with you any objections and the scope of your production in response to this
revised request. As I mentioned on our phone call last week, I would like to follow up with you
regarding Defendant-Intervenors' supplemental production in light of the Court's October 1
Order. Please let me know at your earliest convenience when you can discuss these matters.
The following request is limited to those who (1) had any role in managing or directing
ProtectMarriage.com or the Yes on 8 campaign, or (2) provided advice, counseling, information,
or services with respect to efforts to encourage persons to vote for Prop. 8 or otherwise to
educate persons about Prop. 8, including its meaning, intent, effects if enacted, or effects if
rejected; including communications among and between any two or more of the following
persons or entities: Defendant-Intervenors, members of the Ad Hoc Committee described at the
September 25,2009 hearing in this matter, Frank Schubert, Jeff Flint, Sonia Eddings Brown,
Andrew Pugno, Chip White, Ron Prentice, Cheri Spriggs Hernandez, Rick Ahem, Laura
Saucedo Cunningham, Schubert Flint Public Affairs, Lawrence Research, Bader & Associates,
Bieber Communications, Candidates Outdoor Graphic Service Inc., Cardinal Communication
LOS ANGELES NEW YORK WASHINGTON, D.C. SAN FRANCISCO PAL0 ALTO LONDON
PARIS MUNICH BRUSSELS DUBAl SINGAPORE O U N C E COUNTY CENTURY CITY DALLAS DENVER
Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page6 of 6
GIBSON,DUNN 6rCRUTCHERLLP
Strategies, Church Communication Network Inc., The Monaco Group, Connell Donatelli,
Message Impact Consulting, K Street Communications, Marketing Communications Services,
Sterling Corp., and JRM Enterprises.
Please produce all versions of any documents within your possession, custody or control
that constitute analyses of, or communications related to, one or both of the following topics:
(1) campaign strategy in connection with Prop. 8; and (2) messages to be conveyed to voters
regarding Prop. 8, without regard to whether the voters or voter groups were viewed as likely
supporters or opponents or undecided about Prop. 8 and without regard to whether the messages
were actually disseminated or merely contemplated.
Defendants,
and
Defendant-Intervenors.
IT IS HEREBY ORDERED that for good cause shown, as set forth in Defendant-
Intervenors’ Motion for a Stay Pending Appeal and/or Petition for Writ of Mandamus, that
authorized by the Court’s October 1, 2009 Order, Doc # 214, is stayed pending resolution of
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Case3:09-cv-02292-VRW Document220-2 Filed10/08/09 Page2 of 2
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