Perry et al v. Schwarzenegger et al, No. 3:2009cv02292 - Document 623 (N.D. Cal. 2010)
Court Description: ORDER denying objections to Doc #610 re 619 Objection filed by Dennis Hollingsworth, ProtectMarriage.com - Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight, 614 Objection, filed by Equality California, ACLU Foundation of Northern California. (vrwlc1, COURT STAFF) (Filed on 3/22/2010)
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Perry et al v. Schwarzenegger et al Doc. 623 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 6 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, 7 Plaintiffs, 5 8 9 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 CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v 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 clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, No C 09-2292 VRW ORDER Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIOFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / 28 Dockets.Justia.com United States District Court For the Northern District of California 1 On January 15, 2010, defendant-intervenors, the official 2 proponents of Proposition 8 (“proponents”) moved to compel 3 production of documents from three nonparties: 4 Against Eliminating Basic Rights (“CAEBR”), Equality California and 5 No on Proposition 8, Campaign for Marriage Equality, A Project of 6 the American Civil Liberties Union (the “ACLU”) (collectively the 7 “No on 8 groups”). 8 Magistrate Judge Spero pursuant to 28 USC § 636(b)(1)(A) on 9 February 4, 2010. Doc #472. Doc #572. Californians The court referred the motion to The magistrate heard argument on 10 February 25, 2010 and, on March 5, 2010, granted the motion to 11 compel and ordered the No on 8 groups to produce nonprivileged 12 documents that “contain, refer or relate to arguments for or 13 against Proposition 8.” 14 California objected to the magistrate’s order pursuant to FRCP 15 72(a) on March 11, 2010. 16 objections on March 15, 2010. 17 the magistrate’s order. 18 on March 16, 2010. Doc #610 at 14. Doc #614. The ACLU and Equality Proponents filed their Doc #619. CAEBR did not object to The court heard argument on the objections 19 20 I 21 The magistrate’s order requires the No on 8 groups to 22 produce nonprivileged documents that “contain, refer or relate to 23 arguments for or against Proposition 8” not later than March 31, 24 2010. 25 opinion, Perry v Schwarzenegger, 591 F3d 1147, 1164 (9th Cir 2010), 26 to determine that proponents’ subpoenas may lead to the discovery 27 of admissible evidence under FRCP 26. 28 also relies on Perry, 591 F3d at 1165 n12, to determine the scope Doc #610. The order relies on the Ninth Circuit’s amended 2 Doc #610 at 5. The order 1 of the No on 8 groups’ First Amendment privilege. 2 Finally, the order adopts measures to reduce the burden of 3 production on the No on 8 groups. United States District Court For the Northern District of California 4 Doc #610 at 6-7. Id at 12-14. A magistrate judge’s discovery order may be modified or 5 set aside if it is “clearly erroneous or contrary to law.” 6 72(a). 7 clear error, and the magistrate’s legal conclusions are reviewed to 8 determine whether they are contrary to law. 9 McConney, 728 F2d 1195, 1200-1201 (9th Cir 1984) (overruled on FRCP The magistrate’s factual determinations are reviewed for United States v 10 other grounds by Estate of Merchant v CIR, 947 F2d 1390 (9th Cir 11 1991)). 12 magistrate’s factual determinations only if the court reaches a 13 “definite and firm conviction that a mistake has been committed.” 14 Wolpin v Philip Morris Inc, 189 FRD 418, 422 (CD Cal 1999) (citing 15 Federal Sav & Loan Ins Corp v Commonwealth Land Title Ins Co, 130 16 FRD 507 (DDC 1990)). 17 reviewed de novo to determine whether they are contrary to law. 18 Equal Employment Opportunity Commission v Lexus of Serramonte, No 19 05-0962 SBA, Doc #68 at 4; William W Schwarzer, et al, Federal 20 Civil Procedure Before Trial, 16:278. 21 The clear error standard allows the court to overturn a The magistrate’s legal conclusions are When the court reviews the magistrate’s determination of 22 relevance in a discovery order, “the Court must review the 23 magistrate’s order with an eye toward the broad standard of 24 relevance in the discovery context. 25 in most instances is not the explicit statutory language, but the 26 clearly implicit standard of abuse of discretion.” 27 Corp v Raytheon Co, Inc, 117 FRD 646, 647 (CD Cal 1987). 28 should not disturb the magistrate’s relevance determination except 3 Thus, the standard of review Geophysical Sys The court 1 where it is based on “an erroneous conclusion of law or where the 2 record contains no evidence on which [the magistrate] rationally 3 could have based that decision.” 4 omitted). 5 discovery order not concerned with relevance. 6 Wolpin, 189 FRD at 422 (citation The abuse of discretion standard does not apply to a For the reasons explained below, the magistrate’s order 7 is neither clearly erroneous nor contrary to law. 8 objections to the order are DENIED. Accordingly, all 9 United States District Court For the Northern District of California 10 II 11 The ACLU and Equality California object to the 12 magistrate’s order on the basis that the magistrate’s FRCP 26 13 analysis was clearly erroneous and that the magistrate’s 14 application of the First Amendment privilege was contrary to law. 15 Doc #614. The court addresses each objection in turn. 16 17 A 18 The ACLU and Equality California argue that the 19 magistrate clearly erred and abused his discretion in determining 20 that proponents’ subpoenas would lead to relevant information under 21 FRCP 26. 22 that the magistrate applied the FRCP 26 relevance standard when a 23 more searching standard was appropriate; second, that the subpoenas 24 do not seek relevant documents under any standard of relevance; and 25 third, that the magistrate failed to weigh the marginal relevance 26 of the documents against the heavy burden production of the 27 documents would impose. Doc #614 at 7. This objection has three parts: 28 4 first, United States District Court For the Northern District of California 1 1 2 To determine whether proponents’ subpoenas seek 3 discoverable documents, the magistrate applied the standard set 4 forth in FRCP 26(b)(1) that “a party may obtain nonprivileged 5 discovery that is relevant to any claim or defense, and ‘[r]elevant 6 information need not be admissible at the trial if the discovery 7 appears reasonably calculated to lead to the discovery of 8 admissible evidence.’” 9 ACLU and Equality California argue as a matter of law that because Doc #610 at 5 (citing FRCP 26(b)(1)). 10 the discovery period is closed and the trial has all but 11 concluded,1 the magistrate should have applied a more searching 12 standard of relevance than is found in FRCP 26. 13 The Doc #614 at 7. The ACLU and Equality California cite no authority for 14 the proposition that the court should apply a more searching 15 standard of relevance when the formal discovery cutoff has passed. 16 Even if a more searching standard is appropriate for post-trial 17 discovery motions, the instant motion to compel was filed before 18 trial proceedings concluded. 19 procedural history of proponents’ motion to compel). 20 a post-trial motion to compel could be subject to a more searching 21 standard of relevance, the ACLU and Equality California have not 22 shown the magistrate erred as a matter of law in concluding the 23 typical standard applies in this case. 24 is accordingly DENIED. See Doc #610 at 4 (discussing the Thus, even if The objection on this point 25 26 27 28 1 Live witness testimony concluded on January 27, 2010, although proponents did not officially rest their case pending resolution of the instant motion to compel. Doc #531 at 107-108 (Trial Tr 1/27/10). The court has not yet scheduled closing arguments, and proponents have stated they do not plan to call additional witnesses. 5 1 United States District Court For the Northern District of California 2 2 The magistrate determined that the documents sought 3 through proponents’ subpoenas met the standard of relevance under 4 FRCP 26(b)(1). 5 F3d at 1164, which held that a document request seeking similar 6 campaign documents from proponents was “reasonably calculated to 7 lead to the discovery of admissible evidence on the issues of voter 8 intent and the existence of a legitimate state interest.” 9 magistrate then determined that documents from the No on 8 campaign Doc #610 at 6. The magistrate relied on Perry, 591 The 10 could be relevant to the question why voters approved Proposition 11 8, as the messages from the No on 8 campaign were part of the mix 12 of information available to the voters. 13 Doc #610 at 6. The ACLU and Equality California argue that the documents 14 sought are simply not relevant to the question of voter intent. 15 But because the Ninth Circuit has determined that campaign 16 documents may lead to discovery of admissible evidence, and because 17 the Ninth Circuit’s holding is not limited to campaign documents 18 from the side that succeeded in persuading voters, the magistrate 19 did not clearly err in determining that the documents sought by 20 proponents meet the FRCP 26 relevance standard. 21 considered and rejected the contrary argument, finding that 22 campaign documents from both sides of the Proposition 8 campaign 23 met the FRCP 26 standard of relevance. 24 a finding that campaign documents from both sides meet the 25 standards of discoverability laid out in FRCP 26, the magistrate’s 26 relevance determination is not clearly erroneous. 27 28 6 The magistrate Because the record supports 1 3 United States District Court For the Northern District of California 2 Having determined that proponents’ subpoenas seek 3 discoverable documents under FRCP 26, the magistrate then adopted 4 measures to reduce the burden of production on the No on 8 groups. 5 Doc #610 at 12. 6 adopting a list of electronic search terms, restricting Equality 7 California’s electronic document search to a central server, not 8 requiring a privilege log and not requiring production of any 9 document constituting a communication solely within a core group, The measures adopted to reduce burden, including 10 appear tailored to eliminate unnecessary burdens and focus 11 production on documents most likely to be relevant to proponents’ 12 case. 13 The ACLU and Equality California argue the magistrate 14 erred as a matter of law in failing to consider relevance and 15 burden on a sliding scale. 16 California argue proponents have demonstrated only a marginal 17 relevance, if any, for the documents sought in the subpoenas. 18 Doc #614 at 10. The ACLU and Equality Indeed, proponents’ showing of relevance is minimal. 19 Proponents rely without elaboration on the court’s previous orders 20 and the Ninth Circuit’s opinion in Perry to assert that the 21 subpoenas seek relevant documents under FRCP 26. 22 the court’s question at the March 16 hearing why proponents need 23 the documents, proponents referred to the court’s order that the 24 mix of information available to the voters could help determine the 25 state interest in Proposition 8 and asserted that documents from No 26 on 8 groups could add to the mix. 27 documents might speak to the political power of gays and lesbians, 28 although proponents do not appear to have made use of publicly In response to Proponents also argue that the 7 United States District Court For the Northern District of California 1 available documents in this regard during trial. 2 15 (stating that proponents “were unable to address issues put into 3 contention by Plaintiffs,” like contributions to the No on 8 4 campaign by progressive churches, even though information about 5 such donations is available to the public under the Political 6 Reform Act of 1974, Cal Govt Code § 81000 et seq). 7 proponents describe the documents sought as “highly relevant,” Doc 8 #620 at 15, proponents do not attempt to make a showing that their 9 need for the documents meets the heightened standard necessary to See Doc #620 at Although 10 overcome the No on 8 groups’ First Amendment privilege. 11 591 F3d at 1164-1165 (applying the “First Amendment’s more 12 demanding heightened relevance standard” whether the party seeking 13 discovery has “demonstrated an interest in obtaining the 14 disclosures which is sufficient to justify the deterrent effect on 15 the free exercise of the constitutionally protected right of 16 association.”) (citing NAACP v Alabama, 357 US 449, 463). 17 proponents have failed to make a showing that the documents they 18 seek are highly relevant to the claims they are defending against. 19 Nevertheless, proponents’ showing satisfies the standard See Perry, Thus, 20 of discoverability set forth in FRCP 26, and the magistrate did not 21 err in ordering the No on 8 groups to comply with the proponents’ 22 subpoenas and to produce nonprivileged documents. 23 magistrate carefully weighed the marginal relevance of proponents’ 24 discovery against the burden cast on the No on 8 groups. 25 so, the magistrate took substantial steps to ensure compliance with 26 the subpoenas would not amount to an undue burden on the No on 8 27 groups. 28 California argue the magistrate’s order imposes an undue burden on Doc #610 at 13. Indeed, the In doing To the extent the ACLU and Equality 8 United States District Court For the Northern District of California 1 them, they have failed to substantiate the burden the magistrate’s 2 order imposes. 3 declaration of Elizabeth Gill, filed before the magistrate issued 4 the order compelling production). 5 for the ACLU stated he could not quantify the cost of production 6 but that he believed the parties’ submissions before the magistrate 7 were sufficient to support the claim that the production ordered by 8 the magistrate amounts to an undue burden. 9 Equality California have made no showing regarding the burden on See Doc #614 at 10-11 (citing to Doc #544, the At the March 16 hearing, counsel Tellingly, the ACLU and 10 the No on 8 groups in complying with the magistrate’s order. 11 court cannot, therefore, conclude that the magistrate clearly erred 12 in compelling production despite the burden compliance may impose. 13 For the foregoing reasons, the court declines to disturb The 14 the magistrate’s rulings regarding burden and relevance. 15 objections of the ACLU and Equality California on these points are 16 DENIED. The 17 18 19 B The court now turns to the objections of the ACLU and 20 Equality California regarding the magistrate’s application of the 21 First Amendment privilege. 22 the magistrate’s application of the First Amendment privilege is 23 contrary to law as the privilege requires a “more demanding 24 heightened relevance standard” for the campaign documents. 25 Perry, 591 F3d at 1164. 26 object that the magistrate erred in failing to include groups of 27 individuals in Equality for All’s core group. The ACLU and Equality California argue See The ACLU and Equality California also 28 9 United States District Court For the Northern District of California 1 1 2 Because the No on 8 groups assert a First Amendment 3 privilege against disclosure of their campaign documents, the 4 magistrate determined the scope of the privilege. 5 In doing so, the magistrate relied on Perry, 591 F3d at 1165 n12, 6 which held that the First Amendment privilege is limited to 7 “private, internal campaign communications concerning the 8 formulation of campaign strategy and messages * * * among the core 9 group of persons engaged in the formulation of strategy and Doc #610 at 6. 10 messages.” 11 individuals whose communications within a No on 8 group are 12 entitled to protection against disclosure under the First 13 Amendment. 14 communications within a core group but not to communications 15 between or among different groups, as such communications are by 16 definition not “internal.” 17 The magistrate thus determined a core group of The magistrate determined that the privilege extends to Doc #610 at 7. The ACLU and Equality California object that the 18 magistrate erred as a matter of law by focusing on individuals 19 whose communications are privileged. 20 Equality California argue the magistrate should have adopted a more 21 functional approach to the privilege based on the structure of the 22 campaign. 23 concerning how the court should implement their suggested 24 functional approach and in any event failed to furnish the 25 magistrate information from which a functional interpretation of 26 the core group as defined in footnote 12 could be derived. 27 28 Instead, the ACLU and But the ACLU and Equality California make no suggestion The footnote, and indeed the entire amended opinion, supports the magistrate’s determination that the First Amendment 10 1 privilege is limited to a core group of individuals. 2 attorney-client privilege in the corporate context, see Upjohn Co v 3 United States, 449 US 383, 392 (1981) (holding that a control group 4 test “frustrates the very purpose” of the attorney-client 5 privilege), the First Amendment privilege protects against 6 disclosure only those communications intentionally kept within a 7 group engaged in strategy and message formulation. 8 United States District Court For the Northern District of California 9 Unlike the To explain the scope of the First Amendment privilege, the Ninth Circuit relied on In re Motor Fuel Temperature Sales 10 Practices Litigation, 258 FRD 407, 415 (D Kan 2009) (O’Hara, MJ) 11 (applying the First Amendment privilege to trade associations’ 12 internal communications regarding lobbying, planning and advocacy). 13 The Kansas district court considered objections to the magistrate’s 14 order and held that the magistrate erred as a matter of law in 15 concluding that internal trade association communications were 16 inherently privileged. 17 Practices Litigation, -- FRD --, 2010 WL 786583, *5 (D Kan March 4, 18 2010) (Vratil, J). 19 First Amendment associational privilege to put forth a prima facie 20 case that disclosure would have a chilling effect on their 21 associational rights. 22 1162-1163 (finding that proponents had made a prima facie case for 23 application of the First Amendment privilege against compelled 24 disclosure based on declarations tending to show disclosure would 25 chill their associational rights). In re Motor Fuel Temperature Sales Instead, the law requires those claiming a Id at *5-*6; see also Perry, 591 F3d at 26 27 28 11 Thus: 1 2 3 4 5 [A] party seeking First Amendment association privilege [must] demonstrate an objectively reasonable probability that disclosure will chill associational rights, i e that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members’ physical wellbeing, political activities or economic interests. In re Motor Fuels, -- FRD --, 2010 WL 786583 at *8. United States District Court For the Northern District of California 6 The ACLU and Equality California presented some evidence 7 to the magistrate regarding the chilling effect of compelled 8 disclosure. 9 who stated that disclosure of campaign strategy and messages “would 10 have hindered [the ACLU’s] ability to mount political opposition to 11 Proposition 8” because it would have inhibited a “robust exchange 12 of ideas and free flow of information.” 13 declared further that compelled disclosure would make the ACLU 14 “quite wary” of participating in political campaigns in the future. 15 Id at ¶12. 16 Brian Carroll, who stated that disclosure of communications 17 internal to Equality California would restrict its ability to 18 organize and fund a political campaign. 19 ACLU and Equality California make is similar to the showing made by 20 proponents and accepted by the Ninth Circuit. 21 1163 (noting that proponents’ evidence was “lacking in 22 particularity but consistent with the self-evidence conclusion” 23 that a discovery request seeking internal campaign communications 24 implicates important First Amendment questions). 25 The ACLU submitted the declaration of Elizabeth Gill, Doc #597 at ¶11. Gill Equality California submitted the declaration of James Doc #601. The showing Perry, 591 F3d at Because the prima facie case of chill made by the ACLU 26 and Equality California is substantially the same as the prima 27 facie case made by proponents, the magistrate did not err as a 28 matter of law in applying the First Amendment privilege standard 12 1 set forth in Perry, 591 F3d at 1165 n12. 2 internal communications among a core group of persons, as 3 disclosure of these communications may lead to the chilling effects 4 described in the Gill and Carroll declarations. 5 not protect campaign communications that are not private and 6 internal. 7 the standard as applied is insufficient to protect the No on 8 8 groups’ associational rights. United States District Court For the Northern District of California 9 That standard protects The standard does Nothing in the Gill and Carroll declarations suggests This follows from the magistrate’s correct focus on the 10 individuals engaged in the formulation of strategy and messages 11 whose communications were not intended for public distribution. 12 The functional approach advocated by the ACLU and Equality 13 California ignores the important limiting principle that a 14 communication must be private to be privileged under the First 15 Amendment. 16 The ACLU and Equality California object to the 17 magistrate’s determination to limit the scope of the First 18 Amendment privilege to communications within but not between core 19 groups. 20 The magistrate did not err as a matter of law in concluding that 21 the First Amendment privilege does not cover communications between 22 [or among] separate organizations. 23 communication “internal” to an organization is by definition wholly 24 within that organization. 25 have the court stretch the meaning of “internal” to embrace a broad 26 coalition of groups that took a position against Proposition 8. 27 See Doc #609 at 2-6 (“Equality for All Campaign Committee 28 Members”). See Doc #610 at 12-13. The objection is not well-taken. Doc #610 at 12-13. A The ACLU and Equality California would The problem with attempting to categorize 13 1 communications among individuals associated with a laundry list of 2 groups is that the ACLU and Equality California failed to furnish 3 the magistrate or the undersigned with a comprehensible limiting 4 principle by which to define a communication between or among 5 persons affiliated with such organizations as internal. 6 evidence in the record supports a finding that communications among 7 a broad coalition of groups are private and internal. No United States District Court For the Northern District of California 8 9 2 10 The ACLU and Equality California argue that the 11 magistrate erred in failing to include in the Equality for All core 12 group the Equality California Institute Board of Directors, the 13 Equality for All Campaign Committee and Equality for All Campaign 14 Staff. 15 that the February 22 Kors declaration, Doc #598, supports a finding 16 that members of these groups were involved in the formulation of 17 strategy and messages for Equality for All. 18 Kors declaration makes no showing concerning who in the these 19 groups should be included in the Equality for All core group. 20 Because the No on 8 groups did not present evidence sufficient for 21 the magistrate to include any individual from these groups as part 22 of the core group for Equality for All, the magistrate’s decision 23 to exclude the groups is supported by the record and is therefore 24 not clearly erroneous. 25 Doc #614 at 13. The ACLU and Equality California argue But the February 22 At the February 25, 2010 hearing, the magistrate asked 26 counsel for Equality California for an affidavit to support 27 inclusion of individuals from the campaign committee and campaign 28 staff in the Equality for All core group. 14 Doc #613 at 44 (Hrg Tr United States District Court For the Northern District of California 1 2/25/10). 2 larger role than others” in the development of strategy and 3 messages. 4 No on 8 groups submitted the March 3 Kors declaration, which fails 5 to identify individuals in the campaign committee and campaign 6 staff who were engaged in the formulation of strategy and messages, 7 Doc #609 at ¶¶6-7. 8 provide the magistrate with the evidence he sought at the February 9 25 hearing. Counsel agreed to identify individuals “who played a Id at 45. In response to the magistrate’s inquiry, the The March 3 Kors declaration thus did not Based on the March 3 Kors declaration, the magistrate 10 concluded that the individuals’ roles had not been explained and 11 that “the court lacks a basis to include these individuals in 12 Equality for All’s core group.” 13 finding that the No on 8 groups did not provide the magistrate with 14 information necessary to include the campaign committee and 15 campaign staff in the core group is thus supported by the record. 16 Doc #610 at 11. The magistrate’s The Equality California Institute was described at the 17 February 25, 2010 hearing as “involved with the effort of Equality 18 California with regards to fundraising.” 19 on 8 groups made no further showing that the Institute developed 20 campaign strategy and messages for the Proposition 8 campaign for 21 any No on 8 group. 22 in refusing to include the Equality California Institute in a core 23 group. 24 Doc #613 at 46. The No Accordingly, the magistrate did not clearly err The magistrate’s application of the First Amendment 25 privilege is not contrary to law, and the magistrate’s core group 26 determinations are supported by the record and are therefore not 27 clearly erroneous. 28 magistrate’s First Amendment rulings. Accordingly, the court declines to disturb the 15 1 3 2 3 preclude disclosure to anyone involved in the Proposition 8 4 campaign or who may be involved in a future political campaign 5 involving the right of same-sex couples to marry.” 6 Because the ACLU did not raise this point with the magistrate, the 7 magistrate did not clearly err in failing to include the 8 restriction, and the court need not consider the objection further. 9 See United States v Howell, 231 F3d 615, 621 (9th Cir 2000). 10 United States District Court For the Northern District of California The ACLU objects that the order should be modified “to Doc #614 at 15. The objection is accordingly DENIED. 11 12 III 13 14 Proponents bring eight objections to the magistrate’s order. Doc #619 at 13-21. The court addresses each in turn. 15 16 A 17 Proponents object that the magistrate did not require the 18 No on 8 groups to prepare a privilege log and did not offer an 19 explanation why no privilege log would be required. 20 13. 21 required to produce a privilege log.” 22 order provides no additional explanation, the magistrate explained 23 at the February 25 hearing that he was “willing to discuss whether 24 it’s a reasonable burden to produce privilege logs. 25 undue. 26 going to be whether or not it’s a communication within a very well- 27 defined core group.” 28 thus concludes the magistrate’s decision not to require a privilege The magistrate’s order states: Doc #619 at “The No on 8 groups are not Doc #610 at 14. While the That may be The distinction between privileged and nonprivileged is Doc #613 at 8 (Hrg Tr 2/25/10). 16 The court 1 log was a measure intended to reduce the production burden on the 2 No on 8 groups. United States District Court For the Northern District of California 3 Proponents argue that under FRCP 45(d)(2)(A)(ii), a 4 nonparty claiming a privilege must prepare some form of a privilege 5 log to preserve the privilege. 6 that “some form of a privilege log is required” to preserve the 7 First Amendment privilege. 8 Nevertheless, no rule prevents the court from waiving the privilege 9 log requirement to reduce a nonparty’s burden. Moreover, the Ninth Circuit held Perry, 591 F3d at 1153 n1. The magistrate’s 10 rulings to reduce the burden on the No on 8 groups are more fully 11 addressed in subsection II(A)(3), above. 12 magistrate concluded that waiving the privilege log requirement was 13 appropriate, because the privilege can be tested without a log as 14 it depends only on the identities of those communicating. 15 #613 at 8. 16 clearly erroneous, proponents’ objection on this point is DENIED. In any event, the See Doc Because that conclusion neither contrary to law nor 17 18 B 19 The magistrate ordered that the No on 8 groups are only 20 “required to review electronic documents containing at least one of 21 the following terms: 22 8;’ ‘Marriage Equality;’ and ‘ProtectMarriage.com.’” 23 13. 24 ensure that any burden borne by the third parties is not undue.” 25 Id. 26 argue the magistrate erred in failing to allow proponents the 27 opportunity to present additional search terms to the court. 28 #619 at 14-15. ‘No on 8;’ ‘Yes on 8;’ ‘Prop 8;’ ‘Proposition Doc #610 at The magistrate explained the limitation was intended “to Proponents object that the search terms are underinclusive and 17 Doc United States District Court For the Northern District of California 1 At the February 25 hearing, the magistrate stated his 2 intent to cabin production with search terms like “Proposition 8, 3 ‘No on 8,’ ‘Yes on 8,’ Prop 8 — something like that.” 4 46. 5 limited number of search terms. 6 California to submit an additional declaration on core group issues 7 and burden and then stated he intended to “put out a ruling 8 shortly” after he received the declaration. 9 this notice, proponents failed to seek the opportunity to respond Doc #613 at Proponents were thus on notice that the magistrate intended a The magistrate directed Equality Id at 60. Despite 10 to Equality California’s declaration. 11 for the magistrate to rule on the motion to compel without awaiting 12 a response from proponents, because proponents had not requested 13 the opportunity to provide the magistrate with a response. 14 It was not clearly erroneous Moreover, the magistrate’s decision to adopt only a small 15 number of search terms is not clearly erroneous. 16 suggest an expansive list of search terms, including generic terms 17 like “ad” or “equal*.” 18 by proponents do not appear tailored to cabin production. 19 it would appear that the search term “equal*” would capture every 20 document in Equality California’s possession. 21 error for the magistrate to conclude that a narrow list of search 22 terms would be appropriate to reduce undue burden on the No on 8 23 groups. Doc #619 at 15. Proponents The search terms suggested Indeed, It was thus not in Proponents’ objection on this point is therefore DENIED. 24 25 26 C The magistrate also ordered, as a measure to reduce 27 burden, that “Equality California shall only be required to search 28 its central email server for responsive electronic documents.” 18 Doc 1 #610 at 13. 2 Geoff Kors, which states that “[a]pproximately 75 people at 3 [Equality California] could have potentially relevant emails on 4 their hard drives” and that producing email from the 75 hard drives 5 “could take more than a week” at a cost of around “$30,000.” 6 #609 at ¶9. 7 Equality California has “approximately 27 to 30 gigabytes of email 8 stored” on central email server, and that it would take “several 9 days” at a cost of “$14,000 to $20,000" to collect and process United States District Court For the Northern District of California 10 11 The magistrate relied on the March 3 declaration of Doc The March 3 Kors declaration states further that email stored on the central server. Id at ¶10. The magistrate determined that the additional burden the 12 search of 75 hard drives would impose was not worth the cost. 13 determination is not clearly erroneous in light of the volume of 14 documents stored on the central server. 15 That Proponents object that the magistrate did not “require 16 Equality California to cease archiving any and all emails from the 17 central server.” 18 concerned that Equality California may attempt to spoliate 19 evidence, proponents may seek to bring the appropriate motion. 20 There was nothing before the magistrate or brought to this court’s 21 attention that suggests any such attempt. 22 in any event, err in failing to include this specific instruction 23 in the order. 24 regarding the central email server is accordingly DENIED. Doc #619 at 18. To the extent proponents are The magistrate did not, Proponents’ objection to the magistrate’s order 25 26 27 28 D As the court of appeals noted in Perry, delineation of the core group is central to determining the scope of the First 19 United States District Court For the Northern District of California 1 Amendment privilege and this determination rests on the specific 2 facts of the case. 3 Perry, 591 F3d at 1165 n12, to determine for each No on 8 group a 4 core group of persons whose internal communications may be 5 privileged under the First Amendment. 6 specific facts of the No on 8 campaign, the magistrate also 7 determined a core group of persons for the umbrella No on 8 8 organization Equality for All. 9 that the magistrate had no reason to determine a core group for 10 Equality for All, because proponents did not subpoena documents 11 from Equality for All and because Equality for All did not place 12 evidence before the magistrate. 13 The magistrate applied the standard set in Doc #610 at 6. Id at 10-11. Based on the Proponents object Doc #619 at 18. The magistrate relied on the declarations of Geoff Kors, 14 Doc ##598, 609, to determine a core group for Equality for All. 15 The February 22 Kors declaration explains that Equality for All 16 “acted as an umbrella campaign organization for more than 100 17 member organizations,” including the three No on 8 groups subject 18 to proponents’ subpoenas. 19 the Kors declarations to determine who should and should not be 20 included in the Equality for All core group, as more fully 21 explained in section II(B)(2), above. 22 a formal relationship between Equality for All and the No on 8 23 groups, it was not an error for the magistrate to conclude that 24 individuals associated with the Equality for All umbrella 25 organization who were engaged in the formulation of strategy and 26 messages may claim a privilege over communications within the 27 umbrella organization. 28 declarations of Geoff Kors, a member of Equality for All’s Doc #598 at ¶6. The magistrate examined Because the evidence showed Nor was it clearly erroneous to rely on the 20 1 executive committee, to define Equality for All’s core group. 2 Proponents’ objection on this point is accordingly DENIED. 3 4 United States District Court For the Northern District of California 5 E The magistrate found based on the evidence presented that 6 certain individuals have core group status in more than one 7 organization. 8 Amendment privilege could arguably depend on the capacity in which 9 a core group member [of more than one No on 8 group] is The magistrate noted that “the scope of the First 10 communicating.” 11 order does “not require production of any communications about 12 strategy and messages between core group members who belong to that 13 core group,” as the effort required to inquire into the capacity in 14 which a core group member is communicating “might amount to an 15 undue burden.” 16 Doc #610 at 12. Nevertheless, the magistrate’s Id. Proponents object that the magistrate’s order in this 17 regard is contrary to the court’s previous holding that proponents 18 could not assert a First Amendment privilege over communications 19 with other groups. 20 that proponents had “only claimed a First Amendment privilege over 21 communications among members of the core group of Yes on 8 and 22 ProtectMarriage.com,” and that even if proponents had preserved the 23 privilege, they had “failed to meet their burden of proving that 24 the privilege applies to any documents in proponents’ possession, 25 custody or control.” 26 communications might not be protected by the First Amendment 27 privilege, the magistrate did not clearly err in refusing to order 28 their production because the burden of determining whether the Doc #619 at 18-19. Doc #372 at 3. 21 The court previously held Here, even if the 1 communications are in fact privileged would be undue. 2 previous order is not inconsistent with the magistrate’s order. 3 Accordingly, proponents’ objection on this point is DENIED. The court’s 4 5 United States District Court For the Northern District of California 6 F Related to the objection discussed in subsection E, 7 above, proponents object as inconsistent with the court’s previous 8 order that the magistrate included certain individuals in more than 9 one core group. Doc #619 at 19. The previous order denied 10 proponents’ claim of privilege over communications to other Yes on 11 8 organizations, because “[t]here [was] no evidence before the 12 court regarding any other campaign organization.” 13 Here, in contrast, the magistrate found that the No on 8 groups had 14 supported through declarations inclusion of individuals in more 15 than one No on 8 core group. 16 evidence regarding the No on 8 campaign and is not inconsistent 17 with the court’s previous order or contrary to law. 18 objection on this point is therefore DENIED. Doc #372 at 2-3. The magistrate’s finding is based on Proponents’ 19 20 21 G Proponents object that Armour Media Group and Armour 22 Griffin Media Group Inc were included in the core groups of CAEBR 23 and Equality for All on the ground that the court has previously 24 held that media vendors cannot be considered part of an 25 organization’s core group. 26 appears to have included Armour Griffin Media Group Inc in the 27 Equality for All core group based on the March 3 Geoff Kors 28 declaration, Doc #609 at ¶8 (stating that the Armour Griffin Media Doc #619 at 19-20. 22 The magistrate 1 Group “produced advertising” and “participated in formulating 2 campaign messaging”). 3 Moret declaration to include Armour Media Group in the CAEBR core 4 group. 5 “conducted polling and assisted CAEBR in its early formulation of 6 campaign strategy and messaging”). 7 declarations support inclusion of the media groups in the core 8 groups, the magistrate’s decision to include the media groups is 9 not clearly erroneous. United States District Court For the Northern District of California 10 The magistrate apparently relied on the Doc #593 at ¶4(f) (stating that Armour Media Group Because the Kors and Moret Proponents objection on this point is DENIED. 11 12 H 13 The magistrate ordered each No on 8 group, including 14 CAEBR, to “produce all documents in its possession that contain, 15 refer or relate to arguments for or against Proposition 8, except 16 those communications solely among members of its core group.” 17 #610 at 14. 18 it had already completed its production. 19 magistrate erred in failing to address whether CAEBR’s production 20 was “credible,” as CAEBR produced only sixty documents. 21 at 20. 22 failing to address CAEBR’s production. 23 standard for CAEBR’s production. 24 address any problems with CAEBR’s production by appropriate motion. 25 Proponents’ objection on this point is therefore DENIED. Doc The magistrate did not address CAEBR’s assertion that Proponents argue the Doc #619 But the magistrate did not err as a matter of law in The magistrate set the Proponents can if necessary 26 27 28 23 1 IV United States District Court For the Northern District of California 2 For the reasons explained above, the magistrate’s order 3 granting proponents’ motion to compel discovery from the No on 8 4 groups is neither clearly erroneous nor contrary to law. 5 Accordingly, the objections of the ACLU and Equality California, 6 Doc #614, and of proponents, Doc #619, are DENIED. 7 The magistrate’s order contemplates that production will 8 take place on a rolling basis to conclude not later than March 31, 9 2010. Doc #610 at 14. The court adopts the schedule set by the 10 magistrate. 11 with documents obtained through this production, they must make the 12 appropriate motion or submission not later than Monday, April 12, 13 2010. If proponents wish to supplement their trial record 14 15 IT IS SO ORDERED. 16 17 18 19 VAUGHN R WALKER United States District Chief Judge 20 21 22 23 24 25 26 27 28 24
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