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Cooper & KirkLawyers

A Professional Limited Liability Company

Charles J. Cooper105 Kaula Lane

1523 New Hampshire Avenue, N.W. Bonita Springs, FL 34134Washington, D.C. 20036 (239) 948-5947(202) 220-9660 Fax (239) 948-5946

Fax (202) 220-9601 [email protected]

The Honorable Vaughn R. Walker

Chief Judge

United States District Court for the

Northern District of California450 Golden Gate Ave.

San Francisco, CA 94102

September 10, 2009

Re: Perry v. Schwarzenegger, No. 09-2292 VRW

Dear Chief Judge Walker,

Defendant-Intervenors respectfully request leave to file a motion for a protective order to resolve

a discovery dispute that has arisen between Plaintiffs and Defendant-Intervenors. Plaintiffs originallyasserted that they plan to seek documents relating to Prop. 8s genesis, drafting, strategy, objectives,

advertising, campaign literature, and Intervenors communications with each other, supporters, and

donors. Doc # 157 at 12. At the August 19, 2009 hearing, Mr. Cooper explained that some of the

things that [Plaintiffs] would like to inquire into going to voter motivation are issues that weearnestly believe are not fit and appropriate for judicial inquiry, and that in fact, would raise the gravest

possible First Amendment issues. Tr. 59. Counsel requested an opportunity to fully brief that

proposition before we get off in the direction of taking depositions of our clients and subpoenaing theiremails going to their internal campaign strategies . . . . Id. In response, Plaintiffs counsel stated: I

frankly do not believe that we will have a problem, at least at the initial stages of discovery, in limiting

discovery in a way that does not impermissibly infringe on any First-Amendment issues. Id. at 63.Counsel represented that statements that were made publicly are subject to discovery but that

Plaintiffs would not be inquiring into subjective, unexpressed motivations. Id. at 63-64.

Two days later, Plaintiffs propounded document requests (enclosed herewith) that seek materials

that are both legally irrelevant and protected from disclosure by the First Amendment. For example, inRequest No. 8 Plaintiffs seek [a]ll versions of any documents that constitute communications relating

to Prop. 8, between you and any third party. Plaintiffs define relating to mean indirect and directreferences to the subject matter set forth in the document request. Plaintiffs thus seekall

correspondence Defendant-Intervenors may have had with any third party (even a single individual,

whether or not a California voter) bearing any relationship to Prop. 8 whatsoeverincludingcommunications with individual donors or voters, communications with political strategists, and

communications with friends. Moreover, Plaintiffs seek these communications regardless of whether

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they relate to the public understanding of or motivation for enacting Prop. 8. Defendant-Intervenors and

Plaintiffs have exchanged letters (attached hereto) and engaged in telephone conferences in an effort toresolve our conflicting views of the permissible scope of discovery in this case. Plaintiffs counsel has

confirmed that Plaintiffs seek communications between Defendant-Intervenors and third parties that in

any way relate to Prop. 8. Plaintiffs counsel also has confirmed that Plaintiffs seek all versions ofpublicly distributed documents, including draft versions never meant for public distribution.

It thus appears that Plaintiffs do not intend to limit their discovery requests in a way that would

be consistent with Defendant-Intervenors First Amendment privilege and/or that would relieveDefendant-Intervenors of the burden of reviewing and producing tens of thousands of documents that

are legally irrelevant. As the Ninth Circuit cogently explained in SASSO v. Union City, while it might

be proper to assign a discriminatory purpose to the publics enactment of a referendum using whollyobjective standards such as ultimate effect and historical context, the resort to subjective views of the

electorate is an inappropriate avenue of judicial inquiry as it would require a probing of the private

attitudes of the voters, [which] would entail an intolerable invasion of the privacy that must protect anexercise of the franchise. 424 F.2d 291, 295 (9th Cir. 1970). See also Jones v. Bates, 127 F.3d 839,

860 (9th Cir. 1997). The Supreme Court, in Plaintiffs principal case,Romer v. Evans, 517 U.S. 620,

634 (1996), hewed closely to this line, examining only information that was publicly known (such as the

referendums ultimate effect). Thus, Plaintiffs seek discovery that has no possible bearing on theoutcome of this case. Moreover, communications regarding political strategy, associational goals, and

speech related to petitioning of the government are protected by the First Amendment. See NAACP v.

Alabama, 357 U.S. 449 (1958);Beinin v. The Center for the Study of Popular Culture, 2007 U.S. Dist.LEXIS 47546, at *10 (N.D. Cal. 2007) (Ware, J.). See alsoIn re Motor Fuel Temperature SalesPractices Litig., 2009 U.S. Dist. LEXIS 66005 (D. Kan. 2009).

But the Court need not take our word for it. Plaintiffs counsel has very recently explained to the

Supreme Court of the United States just what is at stake: Even if the government did have aninformational or enforcement interest in applying disclaimer, disclosure, and reporting requirements

to [an association engaging in core First Amendment activities], those interests would be outweighed by

the extraordinary burdens that those requirements impose on First Amendment freedomsincluding therisk of harassment and retaliation faced by [the associations] financial supporters, and the substantial

compliance costs borne by [the association].The widespread economic reprisals against financial

supporters of Californias Proposition 8 dramatically illustrate the unsettling consequences of

disseminating contributors names and addresses to the public through searchable websites. . . .Reply

Br. for Appellant at 28-29, Citizens United v. FEC, No. 08-205 (U.S. Mar. 17, 2009). Here, Plaintiffs

seek much more invasive and sweeping disclosure than the information sought in Citizens.

Defendant-Intervenors respectfully request leave to file a motion for a protective order.

Sincerely,

/s/ Charles J. Cooper

Charles J. Cooper

Counsel for Defendant-Intervenors

EnclosuresCc: Counsel of Record

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Nicole J. [email protected]

Cooper & KirkLawyers

A Professional Limited Liability Company1523 New Hampshire Ave., N.W.

Washington, D.C. 20036 (202) 220-9600Fax (202) 220-9601

August 27, 2009

By Electronic Mail

Matthew D. McGillGibson, Dunn & Crutcher LLP

1050 Connecticut Ave., NW

Washington, D.C. 20036-5306

Re: Perry v. Schwarzenegger, et al.,

U.S.D.C., N.D. Cal., C-09-2292 VRW

Dear Matt,

We are in receipt of Plaintiffs First Set of Requests for Production and appreciate theefforts you have made to confine the scope of those Requests to the representations made at the

August 19, 2009 hearing. Consistent with those representations, I write to clarify that

Defendant-Intervenors understand Plaintiffs Requests as not calling for the disclosure ofDefendant-Intervenors internal communications and documents, including communications

between and among Defendant-Intervenors, as well as communications between Defendant-

Intervenors and their agents, contractors, attorneys, donors, or others in a similarly private and

confidential relationship with Defendant-Intervenors. We also understand your Requests, to theextent they call for communications or documents prepared for public distribution, to call for

documents that actually were disclosed to the public. We, in turn, intend to make clear that our

discovery requests to individuals and organizations opposed to Proposition 8 will be similarlylimited.

Sincerely,

Nicole J. Moss

Cc: Charles J. Cooper, Esq.

David Thompson, Esq.

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