Perry et al v. Schwarzenegger et al

MOTION to Shorten Time to respond to Motion to Amend Order of Jan. 8, 2010

N.D. Cal.January 18, 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 CASE NO. 09-CV-2292 VRW DEFENDANT-INTERVENORS’ MOTION TO SHORTEN TIME FOR RESPONSE TO AND HEARING OF MOTION TO AMEND JANUARY 8, 2010 DISCOVERY ORDER Trial Date: January 11, 2010 Judge: Chief Judge Vaughn R. Walker Magistrate Judge Joseph C. Spero Location: Courtroom 6, 17th Floor Case3:09-cv-02292-VRW Document476 Filed01/18/10 Page1 of 5 Perry et al v. Schwarzenegger et al Doc. 476 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 State Registrar of Vital Statistics; LINETTE 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 Document476 Filed01/18/10 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 Plaintiffs may respond and the Court may hear Proponents’ Motion to Amend January 8, 2010 Discovery Order to Add Additional Core Group Members. Proponents respectfully request that the Court order Plaintiffs to file a response to the Motion to Amend, if any, by 12:00 p.m. on January 19, 2010, and the Court hear the motion as soon as is practicable given the trial schedule. Proponents have moved for an order to amend the January 8, 2010 Order (Doc # 372) in order to add four individuals to the “core group” defined in that Order. Proponents have so moved because these persons should be included in the “core group” but were omitted from the January 7, 2010 Declaration of Ronald Prentice (“January 7 Declaration”) from which the Court, in part, derived the list of names defining the core group. 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 Amend and accompanying Declaration of Ronald Prentice; argument of counsel; and such other and further matters as this Court may consider. MEMORANDUM AND POINTS OF AUTHORITIES Plaintiffs’ discovery requests implicate fundamental First Amendment rights. The Court’s January 8 Order required a rolling production of documents not protected by the First Amendment privilege. Under that Order, documents protected by that privilege are determined in part by the identities of a Court-defined “core group” of persons who were involved with the “internal campaign communications concerning the formulation of strategy and messages.’” Doc # 372, at 2 (quoting Perry v. Hollingsworth, 09-17241 Slip Op at 36 n.12 (9th Cir. January 4, 2010)) (emphasis omitted). In Case3:09-cv-02292-VRW Document476 Filed01/18/10 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 order to determine which persons should be in the core group, the Court relied, in part, on the January 7 Declaration of Ronald Prentice, which provided a list of persons who Proponents argued met the requirements for core-group status. However, as demonstrated in the Motion to Amend and the concurrently filed Declaration of Ronald Prentice, some names of persons who fall within the core group were omitted from the January 7 Declaration due to the extreme trial-preparation pressures on Proponents and their counsel. Because trial has already commenced, Proponents require immediate resolution of the Motion to Amend so that documents falling within the First Amendment privilege are not produced as now required by the January 8 Order and that valuable judicial and attorney time and resources are not needlessly wasted dealing with documents that should not be produced or considered at trial. Accordingly, Plaintiffs’ counsel were notified by email on January 17, 2010, 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 The Time for A Hearing on the Motion to Amend Is Not Shortened. 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 ….” The Motion to Amend seeks to protect fundamental First Amendment rights under the standards defined by the Ninth Circuit and this Court. Given the current trial schedule and the Court’s docket, if the normal timeline for response and hearing on the Motion to Amend were not shortened the trial would be over and the abridgment of the First Amendment privilege would have already occurred by the time the Motion was heard. Given the narrow nature of the Motion to Amend and the familiarity of legal counsel with the issue, no prejudice to Plaintiffs will occur if the motion to shorten time is Case3:09-cv-02292-VRW Document476 Filed01/18/10 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 granted. CONCLUSION For the foregoing reasons, Proponents respectfully request that the Court grant this motion to shorten time. Dated: January 18, 2010 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 Document476 Filed01/18/10 Page5 of 5