Ninth Circuit orders December 1st oral argument on issues presented by its emergency stay of discovery orders in Perry v. Schwarzenneger

11/25/09 Ninth Circuit panel order of December 1st oral argument on issues involving its stay of discovery orders in Perry v. Schwarzenneger

As readers of this site know, a Ninth Circuit panel granted an emergency stay of discovery orders in Perry v. Schwarzenneger. The discovery disputes concerns whether the official Prop. 8 proponents may refuse to disclose certain types of internal campaign communications to plaintiffs, on grounds of First Amendment privilege.

I wish to thank Greg Smith for so quickly alerting me to today's order by the panel, and for offering his comments:

In something of surprise, [the panel has] ordered oral argument in Pasadena on Dec. 1. The scope of the hearing is the entire panoply of issues presented, included the emergency motion to stay discovery.

In the meantime, production of documents is stayed in the pretrial proceedings, but the parties are to continue to negotiate an appropriate protective order. The court will also have before it, under seal, the 21 responsive documents that Walker reviewed in camera.

[Read here about the November 2nd hearing about the discovery dispute, which concluded with Walker's proposed in camera review. Read here about Walker's November 11th order on the outcome of his review.]

Here is the expanded range of issues the panel has asked attorneys to address at its oral argument. I underscore the subject of that expansion:

The parties shall be prepared to address the question of jurisdiction under the collateral order doctrine, the merits of the First Amendment privilege issue, and whether a temporary stay pending a resolution of the merits should be granted under Nken v. Holder, 129 S. Ct. 1749, 1760-61 (2009).