Case 09-17551 Document 5-0 Filed 11/19/09 6 pages

NOS. 09-17241, 09-17551

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,
v.
DENNIS HOLLINGSWORTH, et al.
Defendant-Intervenors-Appellees.

Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)

APPELLANTS’/PETITIONERS’ CERTIFICATE DESIGNATING

PREVIOUSLY FILED MOTIONS FOR A STAY AS
EMERGENCY MOTIONS UNDER 9TH CIR. R. 27-3

Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 Nicole J. Moss
(916) 608-3065; (916) 608-3066 Fax Jesse Panuccio
Peter A. Patterson
Brian W. Raum COOPER AND KIRK, PLLC
James A. Campbell 1523 New Hampshire Ave., N.W.
ALLIANCE DEFENSE FUND Washington, D.C. 20036
15100 North 90th Street (202) 220-9600; (202) 220-9601 Fax
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax

Attorneys for Defendant-Intervenors-Appellants/Petitioners

 9th Cir. R. 27-3 Certificate

Pursuant to 9th Cir. R. 27-3, Appellants/Petitioners in Case Nos. 09-17241

and 09-17551 respectfully certify that their previously filed motions for a stay

pending appeal are now emergency motions requiring “relief … in less than 21

days” to “avoid irreparable harm.” See File # 7129821, Case No. 09-17241 (filed

Nov. 13, 2009); File # 7133699-0, Case No. 09-17241 (filed Nov. 17, 2009).

Appellants/Petitioners are a “primarily formed ballot committee” and the

“official proponents” of Proposition 8 (collectively, “Proponents”), who were

permitted to intervene in this case to defend that California ballot initiative. The

appeals (or, in the alternative, petitions for writs of mandamus) at issue concern the

district court’s denial of Proponents’ claim of First Amendment privilege over

certain internal, confidential political communications and documents requested by

Plaintiffs in discovery. At the time Proponents filed their stay motions, the district

court had not set a date certain by which production had to occur and thus the

motions did not qualify for “emergency” or “urgent” treatment under 9th Cir. R.

27-3. The court has now ordered that the documents at issue be produced on a

rolling basis to be concluded by November 30, 2009. Doc. 259 (attached as

Exhibit 1).

On November 16, 2009, the Plaintiffs requested that the district court “enter

an order directing Proponents to produce the documents and categories of

1
documents that the Court found to be relevant, responsive and non-privileged in

the November 11 Order, and that such production occur within three days of

issuance of the order compelling production.” Doc. 256 at 2. Plaintiffs argued that

they should not have to await production of the documents for the period

established by Fed. R. App. P. 27 while this Court considers the stay motion. Doc.

256 at 2. 1 Despite this objection, Plaintiffs have yet to file any response to

Proponents’ stay motions.

On November 19, 2009, the district court—per Magistrate Judge Spero—

entered an order stating:

The twenty-one documents identified by the court in its November 11

order as responsive and not privileged shall be designated “attorneys
eyes only” and produced to plaintiffs not later than the close of fact
discovery on Monday, November 30, 2009. Similarly, proponents
shall produce the additional documents responsive to plaintiffs’
eighth document request on a rolling basis to conclude not later than
the close of fact discovery on November 30, 2009.

Ex. 1 (Doc. 259) at 6. Accordingly, to avoid the irreparable harm that would occur

from production of these documents before this Court has a chance to adjudicate

Proponents’ claim of privilege, an immediate stay is necessary.

1
Plaintiffs also claimed that Proponents did not seek expedited treatment of
the stay request,” id. Yet in both motions, in order to minimize any delay caused
by this Court’s consideration, Proponents explicitly “ask[ed] that the Court
expedite these appeals.” See File # 7129821 at 25, Case No. 09-17241 (filed Nov.
13, 2009); File # 7133699-0 at 25, Case No. 09-17241 (filed Nov. 17, 2009).

2
 Counsel for the other parties have previously been served with Proponents’

motions for a stay, either through the Court’s electronic filing system or through

United States mail. Before filing this certificate, Proponents’ counsel notified

counsel for the other parties of its imminent filing with the Court and served a copy

by email. As the motions for a stay indicate, “the grounds advanced in support

thereof … were submitted to the district court” and denied in a series of orders

filed on October 1, 2009 (Doc. 214), October 23, 2009 (Doc. 237), and November

11, 2009 (Doc. 252).

Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers and addresses of

the attorneys for the parties are as follows:

Attorneys for Plaintiffs Kristin M. GIBSON, DUNN & CRUTCHER,

Perry, Sandra B. Stier, Paul T. LLP
Katami, and Jeffrey J. Zarillo:
333 S. Grand Avenue
Theodore B. Olson Los Angeles, CA 90071
Matthew C. McGill (213) 229-7804
Amir C. Tayrani Fax: (213) 229-7520
GIBSON, DUNN & CRUTCHER, tboutrous@gibsondunn.com
LLP
1050 Connecticut Avenue, NW David Boies
Washington, D.C. 20036 Theodore H. Uno
(202) 955-8668 BOIES, SCHILLER & FLEXNER,
Fax: (202) 467-0539 LLP
tolson@gibsondunn.com 333 Main St
Armonk, NY 10504
Theodore J. Boutrous, Jr. (914) 749-8200
Christopher D. Dusseault Fax: (914) 749-8300
Ethan D. Dettmer dboies@bsfllp.com
Theane Evangelis Kapur
Enrique A. Monagas

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Attorney for Defendant Clerk- Mark B. Horton, and Deputy
Recorder Patrick O’Connell: Director Linette Scott:

Claude Franklin Kolm Kenneth C. Mennemeier

Lindsey G. Stern Andrew Walter Stroud
COUNTY OF ALAMEDA MENNEMEIER GLASSMAN &
1221 Oak Street, Suite 450 STROUD LLP
Oakland, CA 94612-4296 980 9th St, Ste 1700
(510) 272-6710 Sacramento, CA 95814
claude.kolm@acgov.org (916) 553-4000
Fax: (916) 553-4011
Attorneys for Plaintiff-Intervenor kcm@mgslaw.com
City and County of San Francisco:

Dennis J. Herrera, City Attorney Attorneys for Defendant Attorney

Therese Stewart, Chief Deputy City General Edmund G. Brown, Jr.:
Attorney
Danny Chou, Chief of Complex and Gordon Bruce Burns
Special Attorney General’s Office, Dept. of
Litigation Justice
Vince Chhabria, Deputy City 1300 I Street, 17th Floor
Attorney Sacramento, CA 95814
Erin Bernstein, Deputy City Attorney (916) 324-3081
Christine Van Aken, Deputy City Gordon.Burns@doj.ca.gov
Attorney
Mollie M. Lee, Deputy City Attorney Tamar Pachter
CITY AND COUNTY OF SAN Office of the California Attorney
FRANCISCO General
OFFICE OF THE CITY ATTORNEY 455 Golden Gate Ave, Suite 11000
1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-7004
Room 234 (415) 703-5970
San Francisco, CA 4102-4682 Fax: (415) 703-1234
(415) 554-4708 Tamar.Pachter@doj.ca.gov
Fax: (415) 554-4655
Therese.stewart@sf.gov.org Attorney for Defendant Registrar-
Recorder Dean C. Logan:

Attorneys for Defendants Governor Judy Whitehurst

Arnold Schwarzenegger, Director OFFICE OF COUNTY COUNSEL –

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COUNTY OF LOS ANGELES 1523 New Hampshire Ave., NW
500 West Temple St Washington, D.C. 22036
Los Angeles, CA 90012 (202) 220-9600
(213) 974-1845 Fax: (202) 220-9601
JWhitehurst@counsel.lacounty.gov ccooper@cooperkirk.com

Andrew P. Pugno
Attorneys for Defendant- LAW OFFICES OF ANDREW P.
Intervenors Dennis Hollingsworth, PUGNO
Gail J. Knight, Martin F. Gutierrez, 101 Parkshore Dr., Ste. 100
Hak-Shing William Tam, Mark A. Folsom, CA 95630
Jansson, and (916) 608-3065
ProtectMarriage.com—Yes on 8, A andrew@pugnolaw.com
Project of California Renewal:
Brian W. Raum
Charles J. Cooper James A. Campbell
David H. Thompson ALLIANCE DEFENSE FUND
Howard C. Neilson, Jr. 15100 N. 90th St.
Nicole J. Moss Scottsdale, AZ 85260
Jesse Panuccio (480) 444-0020
Peter A. Patterson braum@telladf.org
COOPER & KIRK, PLLC

Dated: November 19, 2009 Respectfully submitted,

s/ Charles J. Cooper
Charles J. Cooper

5
Case 09-17551 Document 5-1 Filed 11/19/09 7 pages

Exhibit 1
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page1 of 6

1
2 IN THE UNITED STATES DISTRICT COURT

3 FOR THE NORTHERN DISTRICT OF CALIFORNIA

4
5 KRISTIN M PERRY, SANDRA B STIER, No C 09-2292 VRW
PAUL T KATAMI and JEFFREY J
6 ZARRILLO, ORDER

7 Plaintiffs,

8 CITY AND COUNTY OF SAN FRANCISCO,

9 Plaintiff-Intervenor,

10 v
For the Northern District of California

11 ARNOLD SCHWARZENEGGER, in his

United States District Court

official capacity as governor of

12 California; EDMUND G BROWN JR, in
his official capacity as attorney
13 general of California; MARK B
HORTON, in his official capacity
14 as director of the California
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,

22 Defendants,

23 DENNIS HOLLINGSWORTH, GAIL J

KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,

27 Defendant-Intervenors.
/
28
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page2 of 6

1 The court ordered defendant-intervenors (“proponents”) to

2 produce documents responsive to plaintiffs’ eighth document request
3 pursuant to a production schedule to be worked out among the
4 parties. Doc #252 at 9. The parties apparently have not been able
5 to agree to a production schedule, and plaintiffs have submitted a
6 letter asking the court to “direct immediate production of those
7 documents and categories of documents found to be relevant,
8 responsive and non-privileged.” Doc #256. Proponents oppose an
9 order directing immediate production. Doc #257.1 The court held a
10 telephonic hearing on the issues raised by these two letters on
For the Northern District of California

11 November 19, 2009. The following counsel appeared: Matthew McGill

United States District Court

12 for plaintiffs, Nicole Jo Moss for proponents, Mollie Lee for

13 plaintiff-intervenors City and County of San Francisco, Andrew
14 Stroud for defendants Arnold Schwarzenegger, Mark B Horton and
15 Linette Scott and Tamar Pachter for defendant Edmund G Brown Jr.
16
17 I
18 On October 1, 2009, the court denied proponents’ blanket
19 claim that the qualified First Amendment privilege protects Yes on
20 8 campaign documents against disclosure. Doc #214. Proponents
21 appealed the order or alternatively sought mandamus relief. Doc
22 #222. Simultaneously, proponents sought a stay of discovery in
23 this court, which was denied. Doc #237. The Ninth Circuit issued
24 an order to show cause why proponents’ appeal should not be
25 dismissed for lack of jurisdiction but has otherwise not acted on
26 the appeal. See Ninth Circuit case no 09-17241 at Doc #8.
27
1
28 Chief Judge Walker has referred discovery disputes that arise
in his absence to the undersigned pursuant to 28 USC § 636(b)(1)(A).

2
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page3 of 6

1 After the court denied proponents’ motion for a stay,

2 proponents sought in camera review over a sample of sixty documents
3 to allow the court to determine whether the First Amendment
4 qualified privilege might apply to some of the thousands of
5 potentially responsive documents in proponents’ possession. Doc
6 #238. After reviewing the documents in camera, the court
7 determined that the qualified First Amendment privilege offered
8 little, if any, protection against disclosure. Doc #252 (the
9 “November 11 order”) at 2-3. As part of the balancing process
10 required in the case of qualified privileges, the court noted that
For the Northern District of California

11 plaintiffs do not oppose redaction of the names of rank-and-file

United States District Court

12 volunteers and similarly situated individuals. Id at 3. The court

13 previously noted that an appropriate protective order could
14 eliminate any tangible harm that disclosure of the disputed
15 documents might otherwise exacerbate. Doc #214 at 6. The court
16 determined that only twenty-one of the sixty documents provided for
17 review were responsive to plaintiffs’ eighth document request and
18 explained its reasoning to assist the parties in determining the
19 potential relevance of the remaining documents not provided for
20 review. Doc #252 at 3-9. The November 11 order relied on the able
21 counsel for the parties to develop an appropriate production
22 schedule. Id at 9.
23 Proponents now seek to appeal the court’s discovery
24 orders (Doc ##214, 237, 252) or alternatively seek mandamus relief.
25 Doc #253. The Ninth Circuit has not yet accepted the appeal or
26 mandamus petition or issued a stay. Proponents have asked the
27 Ninth Circuit “to expedite these appeals.” Ninth Circuit case no
28 09-17241 Doc #14 at 25.

3
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page4 of 6

1 The instant dispute arises because plaintiffs believe

2 that proponents will not produce any documents while the
3 possibility of a stay from a higher court exists. See Doc #256 at
4 1. Plaintiffs ask the court to issue an order compelling
5 production of all responsive and non-privileged documents within
6 three days. Id. Proponents object and request sufficient time for
7 the Ninth Circuit to consider the stay petition and to cull
8 documents in light of the November 11 order. Doc #257.
9
10 II
For the Northern District of California

11 As a general rule, parties are obligated to follow all

United States District Court

12 orders and judgments of a court of competent jurisdiction. Maness

13 v Meyers, 419 US 449, 458 (1975). An aggrieved party may appeal an
14 unfavorable order, “but, absent a stay, [the party] must comply
15 promptly with the order pending appeal.” Id.2 If a party chooses
16 not to comply with a valid court order, that party may face
17 contempt sanctions even if the underlying order was wrongly
18 decided. See In re Establishment Inspection of Hern Iron Works,
19 881 F2d 722, 728 (9th Cir 1989); Newton v National Broadcasting
20 Co, Inc, 726 F2d 591, 593-94 (9th Cir 1984).
21 Here, proponents seek appellate review of the court’s
22 denial of their claim that the First Amendment qualified privilege
23 protects campaign documents against disclosure. Doc #253. Unless
24
25 2
The only exception to the rule of prompt compliance, not
26 relevant here, arises when a court denies a claim under the Fifth
Amendment privilege against self-incrimination. Maness, 419 US at
27 460-62. Neither the Supreme Court nor the Ninth Circuit have extended
this exception beyond the context of the Fifth Amendment. See In re
28 Establishment Inspection of Hern Iron Works, 881 F2d 722, 728 (9th Cir
1989).

4
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page5 of 6

1 and until the Ninth Circuit stays discovery, the November 11 order
2 remains in effect, and proponents are obligated to produce the
3 documents the court has found to be responsive and not privileged.
4 The court ordered the parties to “work out a production schedule.”
5 Doc #252 at 9. While the court relied on the parties to schedule
6 the actual production of the responsive material in an appropriate
7 manner, that charge plainly did not authorize proponents to
8 “decline to produce any documents” while the possibility of a stay
9 exists. See Doc #256-1 at 2. The court has previously set a fact
10 discovery cut off date of November 30, 2009. See Doc #160 at 2.
For the Northern District of California

11 The practical difficulties associated with production of

United States District Court

12 documents responsive to plaintiffs’ eighth document request counsel

13 against entering an order compelling production of all responsive
14 documents within three days. Nevertheless, the upcoming discovery
15 cut off date of November 30, 2009, as well as the impending January
16 trial, necessitate a production schedule that is consistent with
17 those dates. Accordingly, and in light of the parties’ inability
18 to agree to a production schedule, the court DIRECTS the parties to
19 proceed as follows:
20 The court reiterates its view that appropriate
21 protections can be implemented to reduce or eliminate many of the
22 problems that proponents believe they will suffer as a result of
23 the production of documents pursuant to the November 11 order. The
24 parties shall meet and confer on the terms of a protective order.
25 Any stipulated protective order shall be filed not later than
26 Monday, November 23, 2009 at 12 PM PST. The Court is available to
27 assist the parties in that matter. However, if no stipulated order
28 is filed, the court intends to enter an appropriate order based on

5
 Case3:09-cv-02292-VRW Document259 Filed11/19/09 Page6 of 6

1 the standard protective order that can be viewed on the court’s

2 website.
3 The twenty-one documents identified by the court in its
4 November 11 order as responsive and not privileged shall be
5 designated “attorneys-eyes only” and produced to plaintiffs not
6 later than the close of fact discovery on Monday, November 30,
7 2009. Similarly, proponents shall produce the additional documents
8 responsive to plaintiffs’ eighth document request on a rolling
9 basis to conclude not later than the close of fact discovery on
10 November 30, 2009. Proponents shall be guided by the November 11
For the Northern District of California

11 order, at 3-9, in determining which documents are responsive to

United States District Court

12 plaintiffs’ request. Names of rank-and-file campaign volunteers

13 and similarly situated individuals shall be redacted from all
14 documents produced to plaintiffs. These documents may only be
15 viewed by counsel of record in this action until a full protective
16 order is entered by the court.
17
18 IT IS SO ORDERED.
19
20 Dated: November 19, 2009
21
22
JOSEPH C SPERO
23 United States Magistrate Judge
24
25
26
27
28