On October 1st, Judge Vaughn Walker issued a discovery order in Perry v. Schwarzenneger, the lawsuit challenging Prop. 8 as a violation of due process and equal protection under the 14th Amendment. Walker ruled that the official Prop. 8 proponents must disclose internal campaign communications. They had claimed a "blanket" privilege for all of the documents in question under the First Amendment, but Walker decided it could not be sustained. "The intent or purpose of Prop. 8 is central to this litigation," he said, and proponents had failed to identify any specific documents for which they might still assert a qualified privilege. They appealed the discovery order and sought a stay pending a ruling on their appeal. The 9th Circuit ordered them to show cause why their appeal should not be dismissed for lack of jurisdiction. Not surprisingly, Walker denied the stay. (Read the SF Chronicle article here.) But he reserved a hearing over the question about what kind of discovery would be needed to test proponents' assertion of a qualified privilege for certain campaign documents the Perry plaintiffs have requested.
You can now link to the hearing transcript. I am pleased to credit a self-described "fan" for referring me to the transcript, even though the contributor prefers to remain anonymous.
I am also pleased to post the contributor's summary of the transcript and speculation on Walker's motivations. We can thank the contributor for incisive transcript notes and perceptive comments.
Summary of the transcript, prepared by anonymous contributor
I noticed that the transcript of a discovery teleconference in Perry v. Schwarzenegger appeared on the District Court website this week.
In reading it over, it looks like Walker will entertain a sampling of the Prop 8 campaign communications in camera rather than allowing the Perry attorneys access under a protective order. Sounds like a dreadful next step, but so it goes.
p.7 Walker tees up three approaches to resolving the qualified First Amendment privilege: (1) privilege log alone, (2) limited in camera review, (3) redacted documents.
p.13 Attorneys for Perry suggest production of the (unredacted) documents under an attorneys'-eyes-only protective order.
p.14 Walker launches into his standard in camera is antithetical to due process (reprise from al-Haramain).
p.18 Walker seems to be leaning toward a pretty obvious protective order.
p.27 Prop 8 proponents seem to want to invoke privilege over unpaid members of executive committees.
p.32 Perry objects to Prop 8 proponents' sampling documents and separately to in camera review.
p.38 Walker asks about the categories of communications over which Prop 8 proponents assert privilege.
p.42 Walker adopts a privilege log + in camera review of a limited number of doc's to test the privilege assertion.
Comments by anonymous contributor
As for what Walker's up to, bear in mind that he's a tough nut to predict, if not crack, at times.
That caution aside, Walker's determination to get this case on its way to the Ninth Circuit quickly and with a fulsome record is classic Walkerism. He has rather odd habits, however, of trying to corral parties to get to trial without definitively disposing of motions that most judges just rule on.
He very much wants to dispose of the First Amendment privilege claims now. Enough so, that he's tentatively embraced a piecemeal approach. Seems weird, frankly, but Walker's habits include indulging an intransigent party's odd procedural desires if it moves the case over some hurdle.
Insofar as Walker's accomplished anything, he's gotten the defendants to cough [up] some documents on which he can rule. I'd be shocked if he recognized a broad privilege over most of the communications in question, only a sampling of which he'll see in camera. It seems more likely that he'll use his review of the documents to demonstrate why he isn't willing to stifle discovery with a broad assertion of a rather novel privilege. And, he'll offer to help the parties craft a protective order (or perhaps even another in camera review . . . seems less likely) if the Prop 8 folks have documents over which they can articulate a much more concrete First Amendment issue. Voila, discovery can (sort of) get underway again.
There may be a minor conflict in the offing over the identity of some of the "volunteer" executives (and perhaps managers) over which the Prop 8 folks think they have a First Amendment right to participate anonymously. The plaintiffs are probably going to want to (or at least consider) deposing those folks. Again, Walker would probably prefer to not get wrapped around that axle. He may have to hit that question head on.
In any event, if Walker thinks the trial schedule will stick, he needs to get discovery moving quickly. My first reaction to releasing the transcripts well before the usual 90-day restriction and then to put them on the court's homepage is that his discovery plan/order is imminent.
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