Perry et al v. Schwarzenegger et al

MOTION to Shorten Time re Motion to Compel

N.D. Cal.January 15, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME CASE NO. 09-CV-2292 VRW COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* ccooper@cooperkirk.com David H. Thompson (DC Bar No. 450503)* dthompson@cooperkirk.com Howard C. Nielson, Jr. (DC Bar No. 473018)* hnielson@cooperkirk.com Nicole J. Moss (DC Bar No. 472424)* nmoss@cooperkirk.com Peter A. Patterson (Ohio Bar No. 0080840)* ppatterson@cooperkirk.com 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: (202) 220-9600, Facsimile: (202) 220-9601 LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) andrew@pugnolaw.com 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 608-3065, Facsimile: (916) 608-3066 ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* braum@telladf.org James A. Campbell (OH Bar No. 0081501)* jcampbell@telladf.org 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: (480) 444-0020, Facsimile: (480) 444-0028 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE CASE NO. 09-CV-2292 VRW DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL KNIGHT, MARTIN GUTIERREZ, MARK JANSSON, AND PROTECTMARRIAGE.COM’S MOTION TO SHORTEN TIME FOR RESPONSE TO AND HEARING OF MOTION TO COMPEL Trial Date: January 11, 2010 Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor Case3:09-cv-02292-VRW Document473 Filed01/15/10 Page1 of 5 Perry et al v. Schwarzenegger et al Doc. 473 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME CASE NO. 09-CV-2292 VRW SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK- SHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors. Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) tchandler@telladf.org 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 932-2850, Facsimile: (916) 932-2851 Jordan W. Lorence (DC Bar No. 385022)* jlorence@telladf.org Austin R. Nimocks (TX Bar No. 24002695)* animocks@telladf.org 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: (202) 393-8690, Facsimile: (202) 347-3622 * Admitted pro hac vice Case3:09-cv-02292-VRW Document473 Filed01/15/10 Page2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME CASE NO. 09-CV-2292 VRW TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Local Rule 6-3 Defendant Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (“Proponents”) will and hereby do move this Court for an Order shortening the time within which the Court may hear Proponents Motion to Compel Compliance with Nonparty Document Subpoenas. Proponents have moved for an order compelling production of documents by non-parties Californians Against Eliminating Basic Rights (“CAEBR”), Equality California, and No on Proposition 8, Campaign for Marriage Equality, A Project of the American Civil Liberties Union of Northern California (“ACLU”) (collectively, “the No on 8 groups”). Proponents have so moved because they wish to have these documents available for use at trial, which has already commenced. This motion is based upon this Notice of Motion; the following Memorandum of Points and Authorities; the concurrently filed declaration of Jesse Panuccio in support; the complete files in these actions; the concurrently filed Motion to Compel; argument of counsel; and such other and further matters as this Court may consider. MEMORANDUM AND POINTS OF AUTHORITIES The parties have engaged in a long dispute over the permissible scope of discovery in this action. Plaintiffs propounded sweeping document requests on Proponents, seeking nearly every document in Proponents’ possession. Proponents objected on burden, relevance, and First Amendment grounds, but made clear that-in order to build a complete record in this case-to whatever extent they are required to produce such documents, they would seek similar documents from the No on 8 groups. See, e.g., Doc # 187 at 3-4. To that end, Proponents served Rule 45 document subpoenas on the No on 8 groups. On January 6, the Court conducted the latest in a series of hearings regarding the scope of permissible discovery. Following that hearing, the Court ruled on the permissible scope of discovery and the bounds of the First Amendment privilege in this case. See Doc # 372. Proponents apprised the No on Case3:09-cv-02292-VRW Document473 Filed01/15/10 Page3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME CASE NO. 09-CV-2292 VRW 8 groups of this new ruling and its implications for the scope of documents now discoverable in this case. The No on 8 groups have objected and are refusing to produce documents that are relevant and nonprivileged under this Court’s January 8 order. Because trial has already commenced, Proponents require immediate production of these documents so that they may review them and potentially enter them into evidence. Accordingly, counsel for the No on 8 groups were notified by email on the morning of January 15 of Proponents’ intention to seek relief in the form of this motion to shorten time. See Decl. of Jesse Panuccio in Supp. of Defendant-Intervenors’ Mot. to Shorten Time. I. Substantial Prejudice Will Occur If Proponents Are Not Permitted to Obtain, Review, and Potentially Introduce Documents In the Possession of the No on 8 Groups. Federal Rule of Civil Procedure 6(e) allows the Court to order a motion to be heard on an accelerated basis “for good cause.” Fed. R. Civ. P. 6(c)(1)(C). Moreover, N.D. Cal. Civ. L.R. 6- 3(a)(3) provides that a court may shorten time if “substantial harm or prejudice … would occur if the Court did not change the time ….” Proponents have kept the No on 8 groups continually apprised of both this Court’s and the Ninth Circuit’s rulings regarding the permissible scope of discovery in this case. The Court’s most recent ruling was not announced until January 8, just a few days before the start of trial. Doc # 372. Proponents stand ready to review production from the No on 8 groups as soon as it comes in, so as to be able to introduce the documents into evidence to build the “complete record,” Doc # 76 at 5, of “the mix of information before and available to the voters,” Doc # 214 at 14. Allowing the normal timeline for response and hearing on this motion would not allow this matter to be resolved while the trial is still ongoing and thus would preclude the Court’s ability to review a “complete record” and prejudice Proponents’ ability to plan and present their case. It is imperative that Proponents receive a determination as to whether the No on 8 groups must comply with the subpoenas. Accordingly, Proponents respectfully request that the Court order the No on 8 groups to file a response, if any, to the motion to compel by 5 p.m. on January 18, 2010, and that the Court hear the motion as soon as is Case3:09-cv-02292-VRW Document473 Filed01/15/10 Page4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT-INTERVENORS’ ADMINISTRATIVE MOTION TO SHORTEN TIME CASE NO. 09-CV-2292 VRW practicable given the trial schedule. CONCLUSION For the foregoing reasons, Proponents respectfully request that the Court grant this motion to shorten time. Dated: January 15, 2009 COOPER AND KIRK, PLLC ATTORNEYS FOR DEFENDANTS-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL By: /s/ Charles J. Cooper Charles J. Cooper Case3:09-cv-02292-VRW Document473 Filed01/15/10 Page5 of 5