Perry et al v. Schwarzenegger et al, No. 3:2009cv02292 - Document 214 (N.D. Cal. 2009)

Court Description: ORDER granting in part and denying in part 187 Motion for Protective Order (vrwlc1, COURT STAFF) (Filed on 10/1/2009)
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Perry et al v. Schwarzenegger et al Doc. 214 Case3:09-cv-02292-VRW Document214 Filed10/01/09 Page1 of 18 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 7 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, 8 Plaintiffs, 6 United States District Court For the Northern District of California 9 Plaintiff-Intervenor, 11 v 13 14 15 16 17 18 19 20 21 22 Defendants, 24 DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM and MARK A JANSSON, as official proponents of Proposition 8, 26 27 ORDER ARNORLD 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 clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, 23 25 C 09-2292 VRW CITY AND COUNTY OF SAN FRANCISCO, 10 12 No Defendant-Intervenors. / 28 Case3:09-cv-02292-VRW Document214 United States District Court For the Northern District of California 1 Filed10/01/09 Page2 of 18 The defendant-intervenors, who are the official 2 proponents of Proposition 8 (“proponents”) move for a protective 3 order against the requests contained in one of plaintiffs’ first 4 set of document requests. 5 plaintiffs’ request no 8, which seeks “[a]ll versions of any 6 documents that constitute communications relating to Proposition 8, 7 between you and any third party, including, without limitation, 8 members of the public or the media.” 9 also object to all other “similarly sweeping” requests. Doc #187. Proponents object to Doc #187 at 8. Proponents Id at 8 n 10 1. 11 the First Amendment; (2) is not relevant; and (3) places an undue 12 burden on proponents. 13 discovery sought is relevant and not privileged. 14 Proponents argue the discovery sought: Doc #187 at 9. (1) is privileged under Plaintiffs counter that the Doc #191. During the course of briefing the dispute for the court, 15 the parties appear to have resolved at least one issue, as 16 proponents now agree to produce communications targeted to discrete 17 voter groups. 18 to resolve the parties’ differences. 19 request no 8 and the generality of proponents’ objections, the 20 unresolved issues will almost certainly arise in other discovery, 21 as well as to require resolution of the parties’ differences with 22 respect to request no 8. 23 hearing on September 25, 2009 and seeks by this order not only to 24 address the parties’ remaining dispute with respect to request no 8 25 but also provide guidance that will enable them to complete 26 discovery and pretrial preparation expeditiously. 27 \\ 28 \\ Doc #197 at 6. The agreement appears only partially Because of the broad reach of Accordingly, the court held a lengthy 2 Case3:09-cv-02292-VRW Document214 1 I 2 United States District Court For the Northern District of California Filed10/01/09 Page3 of 18 As an initial matter, and because plaintiffs’ request no 3 8 is quite broad, the court must determine what discovery remains 4 disputed. 5 five categories: 6 [d]efendant-[i]ntervenors, campaign donors, volunteers, and agents; 7 (ii) draft versions of communications never actually distributed to 8 the electorate at large; (iii) the identity of affiliated persons 9 and organizations not already publicly disclosed; (iv) post- 10 election information; and (v) the subjective and/or private 11 motivations of a voter or campaign participant.” 12 But in their reply memorandum, proponents explain that they only 13 object to “nonpublic and/or anonymous communications” (emphasis in 14 original), “drafts of documents that were never intended to, and 15 never did, see public light” and “documents created after the Prop 16 8 election.” 17’s membership list or a list of donors to the 18 ‘Yes on 8' cause.” 19 Proponents object to disclosing documents that fall into “(i) communications between and among Doc #197. Doc #187 at 9. Plaintiffs have stated they “do not seek Doc #191 at 13. Plaintiffs have told proponents that they are seeking 20 communications between proponents and “their agents, contractors, 21 attorneys, donors or others” to the extent the communications are 22 responsive and not otherwise privileged. 23 Plaintiffs argue that the election materials put before the voters 24 are insufficient to discern the intent or purpose of Prop 8. 25 questions whether Prop 8 was passed with discriminatory intent and 26 whether any claimed state interest in fact supports Prop 8 underlie 27 plaintiffs’ Equal Protection challenge, at least in part. 28 e g, Doc #157 at 12. Doc #187-6 at 2. The See, Proponents assert that Prop 8 was intended 3 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document214 Filed10/01/09 Page4 of 18 1 simply to preserve the traditional characteristic of marriage as an 2 opposite-sex union. 3 conflicting positions, the intent or purpose of Prop 8 is central 4 to this litigation. 5 discovery dispute turns is whether that intent should be divined 6 solely from proponents’ public or widely circulated communications 7 or disseminations or whether their communications with third 8 parties not intended for widespread dissemination may also 9 illuminate that intent. See, e g, Doc #159 at 5. As a result of these The issue on which resolution of the present Before deciding that issue, the court 10 first addresses the grounds on which proponents seek a protective 11 order. 12 13 14 II Proponents seek to invoke the First Amendment qualified 15 privilege to refrain from responding to any discovery that would 16 reveal political communications as well as identities of 17 individuals affiliated with the Prop 8 campaign whose names have 18 not already been disclosed. 19 associational prong of the First Amendment has been held to provide 20 a qualified privilege against disclosure of all rank-and-file 21 members of an organization upon a showing that compelled disclosure 22 likely will adversely affect the ability of the organization to 23 foster its beliefs. 24 449, 460-63 (1958) (“NAACP”); see also Adolph Coors Co v Wallace, 25 570 F Supp 202, 205 (ND Cal 1983). 26 been found especially important if the disclosures would subject 27 members to reprisals for the exercise of their associational rights 28 under the First Amendment or otherwise deter exercise of those Doc #197 at 14. The free National Ass’n for A of C P v Alabama, 357 US 4 This qualified privilege has Case3:09-cv-02292-VRW Document214 1 rights. 2 membership lists. 3 with and the Yes on 8 campaign have already 4 been disclosed. 5 #88 (ED Cal Jan 30, 2009). 6 United States District Court For the Northern District of California Filed10/01/09 Page5 of 18 Here, however, plaintiffs are not seeking disclosure of Doc #191 at 13. Indeed, many names associated See v Bowen, 09-0058-MCE Doc The California Political Reform Act of 1974 requires 7 disclosure of a great deal of information surrounding the Prop 8 8 campaign, including the identity of, and specific information 9 about, financial supporters. Cal Govt Code § 81000 et seq. 10 Proponents have not shown that responding to plaintiffs’ discovery 11 would intrude further on proponents’ First Amendment associational 12 rights beyond the intrusion by the numerous disclosures required 13 under California law — disclosures that have already been widely 14 disseminated. 15 these California state law disclosure requirements extend to the 16 outer boundaries of what can be required of political actors to 17 reveal their activities. 18 differs from that which is regulated by these state disclosure 19 requirements. 20 Proponents asserted at the September 25 hearing that But the information plaintiffs seek The First Amendment qualified privilege proponents seek 21 to invoke, unlike the attorney-client privilege, for example, is 22 not an absolute bar against disclosure. 23 Amendment qualified privilege requires a balancing of the 24 plaintiffs’ need for the information sought against proponents’ 25 constitutional interests in claiming the privilege. 26 Coors, 570 F Supp at 208. 27 parties claim are fundamental constitutional rights. 28 argue that their First Amendment associational rights are at stake Rather, the First See Adolph In this dispute, the interests the 5 Proponents Case3:09-cv-02292-VRW Document214 1 while plaintiffs contend that Prop 8 violates their Equal 2 Protection and Due Process rights and that denial of their 3 discovery request jeopardizes the vindication of those rights. 4 claimed rights at issue thus appear to be of similar importance. 5 The One tangible harm that proponents have claimed, and 6 events made known to the court substantiate, lies in threats and 7 harassment proponents claim have been suffered by known supporters 8 of Prop 8. 9 would, proponents argue, only exacerbate these problems. 10 United States District Court For the Northern District of California Filed10/01/09 Page6 of 18 Identifying new information about Prop 8 supporters Doc #187. The court is aware of the tendentious nature of the Prop 11 8 campaign and of the harassment that some Prop 8 supporters have 12 endured. 13 explained why the discovery sought by plaintiffs increases the 14 threat of harm to Prop 8 supporters or explained why a protective 15 order strictly limiting the dissemination of such information would 16 not suffice to avoid future similar events. 17 no doubt that proponents’ political activities are protected by the 18 First Amendment, it is not at all clear that the discovery sought 19 here materially jeopardizes the First Amendment protections. 20 Furthermore, whether the First Amendment qualified privilege should 21 bar all or any part of plaintiffs’ discovery request is open to 22 question under the circumstances of this case. 23 See Doc #187-11. Proponents have not however adequately In sum, while there is The key Supreme Court case upon which proponents rely, 24 NAACP v Alabama, supra, involved a civil contempt against the NAACP 25 for its failure to reveal the names and addresses of “all its 26 Alabama members and agents, without regard to their positions or 27 functions in the Association.” 28 plaintiffs do not here seek the names and addresses of proponents’ 357 US at 451. 6 As noted, Case3:09-cv-02292-VRW Document214 1 rank-and-file members or volunteers. 2 protection against disclosure afforded by the holding in NAACP 3 appears fairly restricted. 4 United States District Court For the Northern District of California Filed10/01/09 Page7 of 18 More importantly, the Alabama sought “a large number of the Association’s 5 records and papers, including bank statements, leases, deeds, and 6 records of all Alabama ‘members’ and ‘agents’ of the Association.” 7 357 US at 453. 8 called for” except for its lists of rank-and-file members. 9 454. The NAACP produced “substantially all the data Id at Notably, the NAACP did not object “to divulging the identity 10 of its members who are employed by or hold official positions” in 11 the organization or to providing various other business records. 12 Id at 464-65. 13 disclosures with that in an earlier case in which another 14 organization made no disclosures at all. 15 request for rank-and-file membership lists in NAACP was predicated 16 solely on its interest in enforcement of the state’s foreign 17 corporation registration statute. 18 The Court contrasted the NAACP’s extensive Id at 465-66. Alabama’s Id at 464. The Court observed that the disclosure of the names of 19 rank-and-file members seemed to lack a “substantial bearing” on 20 whether the NAACP, as a foreign corporation, should be authorized 21 to do business in Alabama. 22 disclosure of rank-and-file membership lists thus was insubstantial 23 relative to the significant interests of the NAACP and its members 24 in carrying out their First Amendment and other activities that 25 included – in 1956 – “financial support and [ ] legal assistance to 26 Negro students seeking admission to the state university” and 27 support of “a Negro boycott of the bus lines in Montgomery to 28 compel the seating of passengers without regard to race.” Id at 464. 7 The interest of Alabama in Id at Case3:09-cv-02292-VRW Document214 1 452. 2 United States District Court For the Northern District of California Filed10/01/09 Page8 of 18 Similarly, in a later case, the Supreme Court upheld a 3 qualified First Amendment privilege against disclosure of NAACP 4 membership lists where there was “no relevant correlation” between 5 the purpose for which the lists were sought, enforcement of 6 occupational license taxes, and the identity of NAACP rank-and-file 7 members. 8 grounds, the Supreme Court reversed a contempt conviction of the 9 president of the NAACP Miami branch who refused to produce NAACP Bates v Little Rock, 361 US 516, 525 (1960). On like 10 membership lists at a 1959 hearing of a state legislative committee 11 investigating “infiltration of Communists” into various 12 organizations. 13 (1963). 14 “either Communist dominated or influenced,” id at 548, undermining 15 the required nexus between the membership lists and the purpose for 16 which they were sought. 17 president answered questions concerning membership in the NAACP and 18 responded to questions about a number of persons previously 19 identified as communists or members of communist front or other 20 affiliated organizations. 21 First Amendment privilege protected only membership lists, and the 22 NAACP or its officials made significant disclosures apart from 23 membership lists. 24 Gibson v Florida Legislative Committee, 372 US 539 No evidence in that case suggested that the NAACP was Furthermore, at the hearing, the branch Id at 543. Here, too, the qualified These cases from the civil rights struggles of the 1950s 25 would thus appear to offer proponents scant support for refusing to 26 produce information other than rank-and-file membership lists which 27 plaintiffs, in any event, do not seek. 28 position gain much traction from McIntyre v Ohio Elections Comm’n, 8 Nor does proponents’ Case3:09-cv-02292-VRW Document214 1 514 US 334 (1995), which reversed petitioner’s conviction, upheld 2 by the Ohio Supreme Court, for anonymously distributing leaflets 3 regarding a referendum on a proposed school tax levy in violation 4 of a statute prohibiting unsigned campaign materials. 5 “acted independently,” not as part of a campaign committee or 6 organization. 7 official proponents of Prop 8 with responsibility under state law 8 for compliance with electoral and campaign requirements. 9 Election Code § 342; Cal Gov’t Code § 8204.7. 10 United States District Court For the Northern District of California Filed10/01/09 Page9 of 18 Id at 337. Petitioner Proponents, by contrast, are the See Cal Proponents, moreover, have not demonstrated that the 11 procedure for invoking any First Amendment privilege applicable to 12 their communications with third parties differs from that of any 13 other privilege, such as the attorney-client privilege and trial 14 preparation or work product protection. 15 withhold discovery under a claim of privilege must “describe the 16 nature of the documents, communications, or tangible things not 17 produced or disclosed * * * in a manner that, without revealing 18 information itself privileged or protected, will enable other 19 parties to assess the claim.” 20 have failed to aver that they have prepared a privilege log that 21 would comply with the requirement of FRCP 26(b)(5)(A)(ii), a 22 necessary condition to preservation of any privilege. 23 ordinarily could be fatal to any assertion of a privilege. 24 Burlington Nort & Santa Fe Ry v Dist Ct, Mt, 408 F3d 1142, 1149 25 (9th Cir 2005). 26 A party seeking to FRCP 26(b)(5)(A)(ii). Proponents This failure Proponents suggested at the September 25 hearing that the 27 enumeration requirement of FRCP 26 does not apply to a First 28 Amendment privilege, based as it is on fundamental constitutional 9 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document214 Filed10/01/09 Page10 of 18 1 principles rather than common law, the origin of the attorney- 2 client privilege and work product protection. 3 that as the communications regarding Prop 8 involve political 4 speech or association, Doc #197 at 11-12, they are entitled to a 5 greater degree of confidentiality than common law privileges. 6 fact, as noted, it appears that any First Amendment privilege is a 7 qualified privilege affording less expansive protection against 8 discovery than the absolute privileges, such as the attorney-client 9 and similar privileges. Proponents contend In The First Amendment privilege proponents 10 seek to invoke requires a balancing of interests that simply are 11 not weighed in the area of attorney-client communications, and that 12 balancing tends to limit or confine the First Amendment privilege 13 to those materials that rather directly implicate rights of 14 association. 15 In striking the appropriate balance, the court notes that 16 in addition to the substantial financial and related disclosures 17 required by California law, a rather striking disclosure concerning 18 campaign strategy has already voluntarily been made by at least 19 one, if not the principal, campaign manager-consultant employed by 20 proponents. 21 magazine article written by Frank Schubert and Jeff Flint, whose 22 public affairs firm managed the Yes on 8 campaign. 23 the article, Schubert and Flint refer specifically to campaign 24 strategy and decisions, noting that they needed to convince voters 25 “that there would be consequences if gay marriage were to be 26 permanently legalized.” 27 that their goal in the campaign was to “rais[e] doubts.” 28 explain the campaign’s “three broad areas” of focus as “religious Plaintiffs have attached to their memorandum a Id at 3. 10 Doc #191-2. In Schubert and Flint make clear Id. They Case3:09-cv-02292-VRW Document214 1 freedom,” “individual freedom of expression” and “how this new 2 ‘fundamental right’ would be inculcated in young children through 3 the public schools.” 4 “a massive volunteer effort through religious denominations.” 5 The article describes, in great detail, how Schubert and Flint 6 conceptualized the Yes on 8 television advertising campaign, 7 culminating with “the break of the election”: footage of 8 “bewildered six-year-olds at a lesbian wedding.” 9 United States District Court For the Northern District of California Filed10/01/09 Page11 of 18 Id. Schubert and Flint refer to the help of Id. Id at 4-5. These extensive disclosures about the strategy of 10 proponents’ campaign suggest that relatively little weight should 11 be afforded to proponents’ interest in maintaining the 12 confidentiality of communications concerning campaign strategy. 13 harm is threatened from disclosure of proponents’ campaign 14 strategy, it seems likely to have been realized by the candid 15 description of the Prop 8 campaign’s strategy already disseminated 16 by Schubert and Flint. 17 harassment to which proponents point as having occurred appear 18 mostly to have been directed to proponents’ financial supporters 19 whose public identification was required by California law. If In any event, the unfortunate incidents of 20 21 22 III Proponents argue that the discovery sought is not 23 relevant and therefore not discoverable. 24 discovery is limited to “any nonprivileged matter that is relevant 25 to any party’s claim or defense,” but “[r]elevant information need 26 not be admissible at the trial if the discovery appears reasonably 27 calculated to lead to the discovery of admissible evidence.” 28 Accordingly, the court need not determine at this juncture whether 11 Under FRCP 26(b)(1), Case3:09-cv-02292-VRW Document214 1 the information sought would be admissible at trial; instead, the 2 court must determine whether the information sought is “reasonably 3 calculated” to lead to discovery of admissible evidence. 4 Plaintiffs assert that the discovery sought is relevant 5 to “the rationality and strength of [proponents’] purported state 6 interests and whether voters could reasonably accept them as a 7 basis for supporting Prop 8,” as well as other factual disputes. 8 Doc #191 at 8. 9 lead to “party admissions and impeachment evidence.” 10 United States District Court For the Northern District of California Filed10/01/09 Page12 of 18 Additionally, plaintiffs believe the discovery will Id. Plaintiffs’ strongest argument appears to be that some of 11 the information sought about proponents’ communications with third 12 parties may be relevant to the governmental interest that 13 proponents claim Prop 8 advances. 14 exist in communications between proponents and those who assumed a 15 large role in the campaign, including the campaign executive 16 committee and political consultants, as that information well may 17 have been conveyed to the ultimate decision-makers, the voters, and 18 thus discloses the intent Prop 8 serves. Id. Relevant information may 19 Key in this regard is the extent to which the requested 20 discovery could be relevant “to ascertain the purpose” of Prop 8. 21 Doc #187 at 10. 22 whether, as plaintiffs claim, Prop 8 violates the Equal Protection 23 Clause. 24 that a law only violates the Equal Protection component of the 25 Fifth Amendment when the law reflects a “discriminatory purpose,” 26 regardless of the law’s disparate impact); see also Personnel Adm’r 27 of Massachusetts v Feeney, 442 US 256, 274 (1979) (“purposeful 28 discrimination is the condition that offends the Constitution.”) Legislative purpose may be relevant to determine Washington v Davis, 426 US 229, 239-41 (1976) (holding 12 Case3:09-cv-02292-VRW Document214 1 (citation omitted). 2 challenged measure was enacted by a legislature or directly by 3 voters. 4 (1982). The analysis remains the same whether the Washington v Seattle School Dist no 1, 458 US 457, 484-85 5 United States District Court For the Northern District of California Filed10/01/09 Page13 of 18 Proponents point to Southern Alameda Span Sp Org v City 6 of Union City, Cal, 424 F2d 291, 295 (9th Cir 1970) (“SASSO”), and 7 Bates v Jones, 131 F3d 843, 846 (9th Cir 1997) (en banc), for the 8 proposition that the subjective intent of a voter is not a proper 9 subject for judicial inquiry. In SASSO, the court determined that 10 “probing the private attitude of the voters” would amount of “an 11 intolerable invasion of the privacy that must protect an exercise 12 of the franchise.” 13 only to publicly available information to determine whether voters 14 had sufficient notice of the effect of a referendum. 15 846. 16 explain their votes, they do not rule out the possibility that 17 other evidence might well be useful to determine intent. 424 F2d at 295. In Bates, the court looked 131 F3d at While these cases make clear that voters cannot be asked to 18 Plaintiffs’ proposed discovery is not outside the scope 19 of what some courts have considered in determining the intent 20 behind a measure enacted by voters. 21 that courts may look to the intent of drafters of an initiative to 22 determine whether it was passed with a discriminatory intent. 23 South Dakota Farm Bureau, Inc v Hazeltine, 340 F3d 583, 594 (8th 24 Cir 2003). 25 considered drafter intent along with voter intent. 26 Angeles v County of Kern, 462 F Supp 2d 1105, 1114 (CD Cal 2006). 27 The parties acknowledge that the line demarking relevance in this 28 context is not clearly drawn. The Eighth Circuit has held At least one district court in this circuit has City of Los The difficulty of line-drawing stems 13 Case3:09-cv-02292-VRW Document214 1 from the fact that, as the California Supreme Court put it well, 2 “motive or purpose of [a legislative enactment] is not relevant to 3 its construction absent reason to conclude that the body which 4 adopted the [enactment] was aware of that purpose and believed the 5 language of the proposal would accomplish it.” 6 Court, 30 Cal 4th 894, 904 (2003). 7 United States District Court For the Northern District of California Filed10/01/09 Page14 of 18 Robert L v Superior In the case of an initiative measure, the enacting body 8 is the electorate as a whole. 9 initiative cannot, therefore, be compiled with the precision that 10 the legislative history of an enactment by a legislative body can 11 be put together. 12 implied in South Dakota Farm Bureau, that the scope of permissible 13 discovery might well be broader in the case of an initiative 14 measure or a referendum than a law coming out of a popularly 15 elected, and thus democratically chosen, legislative body. 16 that may be, the mix of information before and available to the 17 voters forms a legislative history that may permit the court to 18 discern whether the legislative intent of an initiative measure is 19 consistent with and advances the governmental interest that its 20 proponents claim in litigation challenging the validity of that 21 measure or was a discriminatory motive. 22 The legislative record for an This would seem to suggest, as the Eighth Circuit However Proponents have agreed to disclose communications they 23 targeted to voters, including communications to discrete groups of 24 voters. 25 proponents stated that they did not believe “non-public” 26 communications to confirmed Prop 8 supporters or to those involved 27 in the Prop 8 campaign could be relevant to the intent 28 determination. Doc #197 at 6. But at the September 25 hearing, Proponents point out that those communications were 14 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document214 Filed10/01/09 Page15 of 18 1 not directly before the voters. 2 that communications between proponents and political consultants or 3 campaign managers, even about messages contemplated but not 4 actually disseminated, could fairly readily lead to admissible 5 evidence illuminating the messages disseminated to voters. 6 least some of these contemplated, but not delivered, messages may 7 well have diffused to voters through sources other than the 8 official channels of proponents’ campaign. 9 what was decided not to be said in a political campaign may cast But it does appear to the court At Furthermore, of course, 10 light on what was actually said. 11 non-relevant communications is not identical to the public/non- 12 public distinction drawn by proponents. 13 communications from proponents to those who assumed a large role in 14 the Prop 8 campaign could be relevant to the voters’ understanding 15 of Prop 8 and to the ultimate determination of intent. 16 The line between relevant and At least some “non-public” While it appears that plaintiffs’ request no 8 seeks 17 relevant disclosures, the request itself is broader than necessary 18 to obtain all relevant discovery. 19 if some of the discovery sought by plaintiffs might be relevant, 20 “virtually every communication made by anyone included in or 21 associated with Protect Marriage” cannot be relevant. 22 7. 23 could corral all of the information on which voters cast their 24 ballots on Prop 8. 25 well-taken. 26 gather enough information about the strategy and communications of 27 the Prop 8 campaign to afford a record upon which to discern the 28 intent underlying Prop 8's enactment. The court agrees. Proponents point out that even Doc #197 at Further, of course, no amount of discovery Proponents’ undue burden objection is thus It should suffice for purposes of this litigation to 15 Plaintiffs’ request no 8, Case3:09-cv-02292-VRW Document214 1 currently encompassing any communication between proponents and any 2 third party, is simply too broad. 3 United States District Court For the Northern District of California Filed10/01/09 Page16 of 18 Narrowing of plaintiffs’ request is required. In their 4 discussions, the parties have focused on the appropriate 5 distinction — that between documents which relate to public 6 communications with third parties and purely private communications 7 among proponents. 8 proponents harbor private sentiments that may have prompted their 9 efforts is simply not relevant to the legislative intent behind Hence, discovery directed to uncovering whether 10 Prop 8. 11 strictly to communications with the public at large. 12 pertaining to the planning of the campaign for Prop 8 and the 13 messages actually distributed, or contemplated to be distributed, 14 to voters would likely to lead to discovery of admissible evidence, 15 as such documents share a clear nexus with the information put 16 before the voters. 17 as communications considered but not sent appear to be fair 18 subjects for discovery, as the revision or rejection of a 19 contemplated campaign message may well illuminate what information 20 was actually conveyed to voters. 21 after the election date may similarly be relevant if they are 22 connected in some way to the pre-election messages conveyed to the 23 voters. 24 could have considered is not relevant and will not be permitted. 25 That does not mean that discovery should be limited Documents Communications distributed to voters, as well Communications that took place But discovery not sufficiently related to what the voters Plaintiffs are therefore DIRECTED to revise request no 8 26 to target those communications most likely to be relevant to the 27 factual issues identified by plaintiffs. 28 \\ 16 Case3:09-cv-02292-VRW Document214 United States District Court For the Northern District of California 1 Filed10/01/09 Page17 of 18 While it is not the province of the court to redraft 2 plaintiffs’ request no 8 or to interpose objections for proponents, 3 the foregoing highlights general areas of appropriate inquiry. 4 seems to the court that request no 8 is appropriate to the extent 5 it calls for (1) communications by and among proponents and their 6 agents (at a minimum, Schubert Flint Public Affairs) concerning 7 campaign strategy and (2) communications by and among proponents 8 and their agents concerning messages to be conveyed to voters, 9 without regard to whether the voters or voter groups were viewed as It 10 likely supporters or opponents or undecided about Prop 8 and 11 without regard to whether the messages were actually disseminated 12 or merely contemplated. 13 proponents with those who assumed a directorial or managerial role 14 in the Prop 8 campaign, like political consultants or 15’s treasurer and executive committee, among 16 others, would appear likely to lead to discovery of admissible 17 evidence. In addition, communications by and among 18 19 20 IV Proponents motion for a protective order is GRANTED in 21 part and DENIED in part. 22 the First Amendment privilege is applicable to the discovery sought 23 by plaintiffs. 24 plaintiffs shall revise the request and tailor it to relevant 25 factual issues, individuals and entities. 26 to assist the parties in pursuing specific additional discovery in 27 line with the guidance provided herein and, if necessary, to assist 28 the parties in fashioning a protective order where necessary to Doc #187. Proponents have not shown that Because plaintiffs’ request no 8 is overly broad, 17 The court stands ready Case3:09-cv-02292-VRW Document214 Filed10/01/09 Page18 of 18 1 ensure that disclosures through the discovery process do not result 2 in adverse effects on the parties or entities or individuals not 3 parties to this litigation. 4 5 6 IT IS SO ORDERED. 7 8 9 VAUGHN R WALKER United States District Chief Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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