Perry v. Schwarzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar. 31, 2010)
On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.
On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."
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