Sunday, April 25, 2010

Continued impasse in Perry case's discovery dispute: Walker's order for ACLU and Equality California to show why he should not cite them in contempt

Order by Judge Walker on discovery dispute, filed 04/17/10

Prop, 8 proponents' response to April 17, 2010 Order, and declaration and exhibits, filed 4/22/2010

Statement of Objectors (ACLU) re April 17, 2010 order ) with 2 attachments (Exhibits A and B), filed 4/22/2010

Plaintiffs' response to April 17, 2010 order with 3 Attachments (Exhibit A, B and C)
, filed 4/22/2010.

Proponents' motion for Leave to File Motion to Strike and/or Reconsider prior discovery order
(Perry I), filed on 4/23/10

[update: Order to show cause why No on 8 groups should not be held in contempt. Sets hearing for 4/28/2010. (filed 4/25/10)]

(I am grateful for links to these documents from Kathleen Perrin, and for an update from California attorney Rick Xiao.)

Judge Vaughn Walker has been trying to resolve an ongoing discovery dispute in the Perry case that has already lasted longer than the trial. The dispute originates with two discovery orders in March. Magistrate Judge Joseph Spero ordered several No on 8 groups - including Equality California and the ACLU - to produce documents that Prop. 8 proponents ("Proponents") demanded. The groups objected, but Walker sustained Spero's ruling. The orders require the Equality California and the ACLU to produce private communications on campaign strategy and messaging that member individuals exchanged among the themselves and their counterparts in organizations belonging to the No on 8 - Equality For All coalition. The No on 8 groups appealed the orders by Judges Spero and Walker, claiming a First Amendment privilege from compelled disclosure of these communications.

In its second discovery ruling in the case, a 9th Circuit panel decided that the No on 8 groups had not met criteria for the Court to review their objections. Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (“Perry II”) As a result, No on 8 groups could not appeal their objections until Judge Walker cited them for contempt over failure to produce the ordered documents.

The Perry II ruling addresses the scope of the First Amendment privilege from compelled disclosure of internal campaign communications. In Perry I, the 9th Circuit panel held that the privilege applies to "communications among the core group of persons engaged in the formulation of campaign strategy and messages.” "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) (emphasis in original). The context then concerned what campaign communications the Proponents - the "core group" - could exempt from discovery. But could they exclude only those communications on campaign strategy or messaging internal to The question was not raised at the time, although Proponents reserved, on other grounds, their concerns about First Amendment privilege.

In Perry II, the panel clarified application of the privilege to persons in member organizations of a very different core group - the Equality for All coalition:
Under Perry I, the privilege applies to the core group of persons engaged in the formulation of strategy and messages, whether or not they are members of a single organization or entity. The operative inquiry is whether they are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity. (slip. op., at 9)
Judges Walker and Spero determined that the First Amendment privilege does not extend to internal communications among or between separate organizations that belonged to Equality for All. Given the Perry II clarification, is it clear that the judges erred? The 9th Circuit panel said that it is unclear whether Walker and Spero meant "that the privilege cannot apply to persons who are part of a political association spanning more than one organization or entity."

On April 13th, Judge Walker ordered the Proponents to show cause why the record of evidence should not be closed. Proponents responded that it should not be closed because the No on 8 groups had not complied with the March orders to produce the campaign communications subject to the orders. The No on 8 groups and Proponents had tried to craft a compromise that would allow discovery to proceed. The former would agree to an amendment of Walker's March 22nd order that substantially limited their disclosure obligation to the requirements of the Perry II clarification. Proponents then demanded an "evenhanded" application of that guidance to all of their qualifying campaign documents already entered into the record of evidence, so that they could then ask Walker to remove these documents from the record. The plaintiffs reserved a right to object to Proponents' demand. The compromise fell apart. Proponents recommended that Walker cite the No on 8 groups for contempt. (Prop. 8 and the Right to Marry / Keen News Service)

On April 17th, Walker discharged his April 13th order to allow Proponents and the No on 8 groups time to "confer and negotiate in order to reach a stipulation that will resolve remaining discovery issues." A second round of discussion ensued, but never rose to the level of a real negotiation. Positions instead hardened. The No on 8 groups claimed that "there can be no question" that Walker and Spero had "misapprehended" the scope of their First Amendment privilege. To correct the error, the groups would stipulate to an amended discovery order by Walker that allows them to exclude "communications solely among the core group of persons engaged in the formulation of campaign strategy and messages for the No on 8 - Equality for All campaign, whether or not they are members of a single organization or entity." The No on 8 groups say that Walker should accepts their stipulation, without resolving a related dispute between plaintiffs and Proponents over whether Proponents can revisit Proponents' previous document production.

Proponents would have accepted this stipulation, but only if the proposed amended order allowed them to remove from evidence a large number of their internal campaign communications already in the record of evidence. According to plaintiffs, Proponents would, in fact, have Walker "strike from the trial record virtually every document that they originally tried, unsuccessfully, to shield from discovery."

Plaintiffs responded that they could not accept the latest terms of a reprised compromise. They have asked Walker to order the nonparties, Equality California and the ACLU, to "produce the required documents in three days, or else be held in contempt," and order "Proponents to supplement the trial record within seven days, if at all, upon expiration of the [nonparty] production deadline before the Court closes the evidentiary record."

Plaintiffs have the following objections to the compromise. First, plaintiffs claim that Walker and Spero did not err when they ordered the No on 8 groups to produce campaign communications. Plaintiffs read the March orders as entirely consistent with the subsequent, Perry II clarification. But even if the judges had erred, theirs was not a clear error. Suppose that they had meant that “the [First Amendment] privilege cannot apply to persons who are part of a political association spanning more than one organization or entity.” Perry II, slip op. at 9. Spero had still afforded these groups opportunity to show that their campaign participants functioned as a core group of persons engaged in developing campaign strategy or messaging, so that participant campaign communications could qualify for First Amendment protection. The No on 8 groups did not provide information showing that their individual members functioned as core group of persons, So plaintiffs contend that the groups can not now object that they are entitled to withhold the contested communications.

Second, Proponents want to use the Perry II guidance to reopen discovery orders in January, with a request that Walker remove from evidence many documents Proponents produced. The plaintiffs argue that Walker should reject Proponents' request. Even if the Perry II guidance applies to documents they produced, Proponents failed "to prove and preserve a privilege for any individuals in any organization other than Furthermore, Proponents at trial allegedly "conceded that’s First Amendment privilege did not extend to separate religious organizations" whose members participated in the campaign. (In fact, Proponents said that the religious character of these organizations raised a different question of First Amendment protection.)

Why are plaintiffs concerned about gaps in the record of evidence that would arise if Walker granted Proponents' request? Have a look at the types of documents that Proponents would have removed. My cursory review suggests that the communications at issue were between and ministers or leaders of religious organizations. Unfortunately, I do not have time to investigate the individual documents, so I can not say whether they stand out for hateful, anti-gay messaging.

What can we expect at this point? Walker might decide that he has no viable option but to issue a contempt citation against Equality California and the ACLU, because he has given them and Proponents reasonable opportunity to resolve their differences. At any rate, expect continued delay in the progress of the case toward closing arguments and a final judgment.

update: Walker has just ordered the ACLU and Equality California to show cause why he should not hold them in contempt for failing to produce documents subject to the March discovery orders. They have until April 27th to submit their written arguments, for a hearing on April 28th. (Keen News Service)

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