Monday, January 4, 2010

Discovery dispute continues in Perry case; Judge Walker proposes webcast of January 6th hearing of dispute; Prop 8 proponents object

Order on proposed recording of discovery dispute hearing in Perry v. Schwarzenneger, filed 12-30-09

(Thanks to Rick Xiao, California attorney and site collaborator, for alerting me to this order.)

At a pretrial hearing on December 16th, Judge Walker asked Prop. 8 proponents to submit a log of campaign documents that would answer Perry plaintiffs' discovery demand, without compromising proponents' claim of First Amendment privilege or other privilege (such as attorney-client work product.) On December 21st, proponents submitted this privilege log. (Here is a notice of the filing, but I have not included the log itself.) Although a 9th Circuit panel upheld a First Amendment privilege for proponents' internal campaign communications, the ruling did not extend First Amendment protection to a privilege log. On December 28th, Perry plaintiffs challenged proponents' submission of the privilege log, because it includes "external communications with discrete groups of voters," a category of documents that, plaintiffs contend, neither the First Amendment nor other privilege protects.

Judge Walker has just ordered a January 6th hearing on the status of the discovery dispute, and has assigned the hearing to Magistrate Judge Joseph Spero. Walker also said that "the court is considering seeking approval from [9th Circuit] Chief Judge Kozinski to record or webcast the January 6[th] hearing." He believes his proposal would afford parties and the court opportunity, upon review of the recording, to better assess whether the court should allow recording or webcast of trial proceedings.

AP has reported on Walker's order here.

01/04/09 update

01/04/10 letter of objection by Prop. 8 proponents to Judge Walker's 12-30-09 order on camera recording of pretrial hearing:
[I]t appears that, as of today, this Court’s current Local Rules still prohibit the recording or public broadcast of proceedings in the courthouse. Defendant-Intervenors thus respectfully submit that the Court is obliged to abide by this prohibition.
(Thanks to Rick Xiao, California attorney and site collaborator, for alerting me to this order.)


Anonymous said...

It is interesting to note that the US District Court for the Northern District of California has posted a Request for Quation for the video recording and hosting of the Perry trial. It is also updated the announcement of change of the local rule 77-3 to a notice for public comment on the proposed change. This seems to be in response to the objections raised by the Proponents, who argue that public commenting is mandatory before the change can take effect. These developments suggest to me that Chief Judge Walker is determined to televise/webcast the Perry trial, no matter what.


Anonymous said...

It's starting to be somewhat farcical:

The district court first announced the change to the local rule 77-3 (governing the public broadcasting of proceedings) in December. Then - probably because of the objections raised by the proponents of Proposition 8 - on New Year's eve it changed the announcement to notification of public comment on the said change.

Now the court has again reversed itself, this time coming up with the "immediate need" provision of law and announcing that the change actually took effect in December 22. Comments and suggestions are still welcome though.

Link to the updated notice:

Michael Ginsborg said...

I am unable to download the referenced notice, as the Court's server may not be working. But I see another reference to it at Judge Walker does appear likely to allow television coverage of the trial. Prop. 8 proponents may try to file an emergency appeal if that happens.

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