Tuesday, October 13, 2009

Plaintiffs in Perry v. Schwarzenneger file opposition to defendants' motion to stay discovery order pending appeal

Opposition to motion to stay discovery order pending appeal in Perry v. Schwarzenneger

On October 1st, Judge Walker ordered the official Prop. 8 proponents to disclose internal campaign communications to the Perry plaintiffs that concern Yes on 8's proposed or implemented messages to voters. On October 8th, Charles Cooper filed a motion to stay the discovery order pending an appeal. Among other claims, Cooper alleged a First Amendment privilege in the communications. Today Theodore Olson and Therese Stewart filed an opposition to this motion. Here are excerpts:
The Ninth Circuit has concluded that a claim of First Amendment privilege must be supported by “objective and articulable facts which go beyond broad allegations or subjective fears.” Dole v. SEIU, AFL-CIO, Local 280, 950 F.2d 1456, 1460 (1991) ... [Defendant-intervenors'] “[b]are allegations of possible first amendment violations,” McLaughlin v. Service Employees Union, AFL-CIO, 880 F.2d 170, 175 (9th Cir. 1989), are generally insufficient to justify a claim of privilege and are particularly wanting in this context, where (1) the “associational bond” among the Defendant-Intervenors, their campaign consultants and the Yes on 8 campaign is a matter of public knowledge, (2) key participants in the “Yes on 8” campaign have already, and voluntarily, chosen to describe in detail, and in the media, their campaign strategy for getting Prop. 8 passed, (3) Plaintiffs are not seeking any list of rank-and-file members or donors, and (4) Plaintiffs have offered to entertain any reasonable protective order to ensure that any person whose associational connection to the Yes on 8 campaign is unknown to the public remains so.

In any event, Defendant-Intervenors’ First Amendment rights are not the only ones, or even the principal ones, at stake in this case. The public has an equally forceful interest in vindicating Plaintiffs’ fundamental right to marry and this Court has recognized already that given the “serious questions [] raised in these proceedings,” the state and its citizens have an interest in seeing those rights adjudicated on a full record.
Thanks to Rick Xiao for alerting me to the latest filing in the discovery dispute.

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