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Case No. 09-16959

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J.

ZARRILLO, Plaintiffs/Appellees

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 SCOTT, in her official capacity as Deputy

Director of Health Information & Strategic Planning for the California Department of Public

Health; PATRICK OCONNELL, 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.

CAMPAIGN FOR CALIFORNIA FAMILIES, Proposed Intervenor-Defendant/Appellant

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J.

KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; andPROTECTMARRIAGE.COM-YES ON 8, A PROJECT OF CALIFORNIA

RENEWAL, Intervenor-Defendants/Appellees

________________________________________________________________________

Appeal from the United States District Court for the Northern District of CaliforniaHonorable Vaughn R. Walker, U.S. District Judge

Case No. CV-09-02292 VRW________________________________________________________________________

APPELLANTS MOTION TO EXPEDITE ORAL ARGUMENT_________________________________________________________________________MARY E. MCALISTER

STEPHEN M. CRAMPTON

RENA M. LINDEVALDSEN

LIBERTY COUNSEL

P.O. Box 11108

Lynchburg, VA 24506

(434) 592-7000 T elephone

(434) 592-7700 Facsimile

[email protected] Email

MATHEW D. STAVER

ANITA L. STAVER

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

(800)671-1776 Telephone

(407) 875-0770 Facsimile


Attorneys for Appellant Campaign for California Families

Case: 09-16959 09/15/2009 Page: 1 of 9 ID: 7062728 DktEntry: 8-1
mailto:[email protected]:[email protected]:[email protected]:[email protected]

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Appellant, proposed Defendant-Intervenor Campaign for California Families (the

Campaign), moves this Court to expedite the oral argument on its appeal against

Plaintiffs/Appellees KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and

JEFFREY J. ZARRILLO (Plaintiffs) and Intervenor-Defendants/Appellees 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

(Intervenor-Defendants).

The Campaign makes this motion pursuant to 9th Cir. R. 34-3 on the grounds that in the

absence of expedited scheduling for oral argument, Appellant will be foreclosed from

meaningful participation in discovery, trial preparation and trial of the underlying action

regardless of this Courts resolution of the appeal. As a result, the appeal will be rendered

effectively moot, which provides good cause for expediting oral argument under 28 U.S.C.

1657.

PARTIES POSITION ON THE MOTION

The Campaigns counsel has contacted counsel for the other parties regarding their

position on this motion. The County of Los Angeles and County of Alameda have responded

that they have no position on the motion. The Attorney General, Plaintiff-Intervenor City and

County of San Francisco do not oppose the motion. Plaintiffs, Administration Defendants

(Arnold Schwarzenegger, Linette Scott and Mark Horton) and Defendant-Intervenors did not


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respond.

INTRODUCTION

Appellant, Campaign for California Families (the Campaign), is seeking to intervene

as a Defendant in Plaintiffs District Court action challenging California constitutional and

statutory provisions defining marriage as the union of a man and a woman as violative of their

rights to due process and equal protection under the United States Constitution. The District

Court denied the motion, and the Campaign is asking this Court to overrule that determination

so that the Campaign can participate in discovery, pre-trial and trial proceedings and contribute

toward development of the factual record the District Court will need to properly analyze

Plaintiffs claims. Under the pre-trial and trial schedule adopted by the District Court,

discovery will be concluded on November 30, 2009 and pre-trial submissions will be filed by

December 6, 2009 in preparation for a January 11, 2010 trial date.

This Court has granted the Campaigns motion to expedite the appeal, in part, by setting

accelerated briefing deadlines and a hear ing date during December 2009. However, if oral

argument is not held until December, then the Campaign will be foreclosed from participating

in discovery or submitting pre-trial information before this Court can render its decision in this

appeal, and would not have sufficient time to prepare for the January 11, 2010 trial. The

Campaign would be prevented from meaningfully participating in development of the

evidentiary record or the legal analysis, even if this Court were to decide that the Campaign

should be a party to the proceedings.


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In order to preserve the Campaigns rights as a potential party, the Campaign requests

that the Court expedite oral argument and place this matter on its calendar no later than

November 2009.

LEGAL ARGUMENT

Ninth Cir. Rule 34-3 provides that an appellant may move to expedite the hearing or

submission of a case pursuant to 28 U.S.C. 1657appeal for good cause, and that such motions

should be filed expeditiously. On September 14, 2009, this Court granted the Campaigns

motion to expedite the appeal, in part, by setting an expedite briefing schedule. However, the

Court indicated that the matter would not be heard until the December 2009 hearing calendar.

Postponing oral argument until December 2009 will essentially render the appeal, even with

an expedited briefing schedule, moot, as it will foreclose the Campaign from participating in

discovery and pre-trial submissions, and perhaps even the trial regardless of whether this Court

decides in the Campaigns favor.

The District Courts pre-trial/trial scheduling order provides that the parties must

complete discovery, except for follow up expert discovery, by November 30, 2009. (Minute

Order after hearing, Exhibit A to the Declaration of Mary E. McAlister, McAlister

Declaration). The pre-trial conference is scheduled for December 16, 2009 and trial on

January 11, 2010. (Exhibit A). The pre-trial order issued on August 24, 2009 provides that the

parties must submit trial memoranda, proposed findings of fact, pre-marked exhibits, witness

lists, motions in limine and expert designations by December 6, 2009. (Exhibit B, McAlister


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Declaration). According to the calendar posted on this Courts Web site, oral arguments are

scheduled for December 7-11, after all of the pre-trial submissions must be filed with the

District Court. Consequently, if this matter is not heard by this Court until December, the

Campaign will not be permitted to participate in discovery, submit a trial memorandum,

exhibits or motions in limine. Furthermore, if the hearing panel does not immediately issue an

opinion, the Campaign may be foreclosed from any participation in the trial, and certainly will

be prevented from engaging in meaningful preparation. As a result, a favorable ruling by this

Court would be of no effect for the Campaign, and the parties would have succeeded in

excluding the Campaign from the case by default. By contrast, if this case is heard in

November 2009, and the Campaign prevails, then the Campaign will have an opportunity to

participate, even minimally in discovery, to prepare exhibits, a trial memoranda, witness lists

and motions in limine prior to trial and participate in trial.

The Campaign should have the opportunity to have its appeal heard by this Court and,

if successful, to benefit from having brought the appeal. Maintaining a December 2009 oral

argument date would foreclose that possibility. Therefore, good cause exists for expediting

oral argument under 28 U.S.C. 1657 from December 2009 to no later than November 2009.

CONCLUSION

If oral argument is not expedited, than the Campaign will be unable to meaningfully

participate as a party in the District Court, even if this Court decides that the Campaign is so

entitled. Consequently, the Campaign respectfully requests that the Court grant this motion


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and expedite oral argument.

Dated: September 15, 2009

/s/ Mary E. McAlister

MARY E. MCALISTER

STEPHEN M. CRAMPTON


LIBERTY COUNSEL

P.O. Box 11108

Lynchburg, VA 24506

(434) 592-7000 T elephone

(434) 592-7700 Facsimile


Attorneys for Appellant Campaign for

California Families

MATHEW D. STAVER

ANITA L. STAVER

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

(800)671-1776 Telephone

(407) 875-0770 Facsimile


Attorneys for Appellant Campaign for

California Families


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PROOF OF SERVICE

I am employed at the law firm of Liberty Counsel. I am over the age of 18

and not a party to the within action. My business address is 100 Mountain View

Road, Suite 2775, Lynchburg Virginia 24502.

On September 15, 2009 I electronically filed this document through the

ECF system, which will send a notice of electronic filing to the parties as shown on

the attached SERVICE LIST.

On September 15, 2009, I also sent a copy via electronic mail to all of the

parties listed on the attached SERVICE LIST.

Executed on September 15, 2009, at Lynchburg, Virginia.

I declare under penalty of perjury under the laws of the United States of

America and State of California that the above is true and correct.


Mary E. McAlister


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SERVICE LIST

Theodore B. OlsonMatthew C. McGillAmir C. TayranitGIBSON, DUNN & CRUTCHER, LLP1050 Connecticut Avenue, NWWashington, D.C. 20036(202) [email protected]

Theodore J. Boutrous, Jr.Christopher D. DusseaultEthan D. DettmerTheane Evangelis KapurEnrique A. Monagas

GIBSON, DUNN & CRUTCHER, LLP333 S. Grand AvenueLos Angeles, CA 90071(213) [email protected]

David BoiesTheodore H. UnoBOIES, SCHILLER & FLEXNER, LLP333 Main StArmonk, NY 10504(914) [email protected]

Attorneys for Plaintiffs

Kenneth C. Mennemeier

Kelcie M. Gosling

Landon D. Bailey

MENNEMEIER, GLASSMAN &

STROUD, LLP

980 9 St, Suite 1700TH

Sacramento, CA 95814-2736

(916) [email protected]

Attorneys for Administration

Defendants

Charles J. Cooper

David H. Thompson

Howard C. Nielson, Jr.

Peter A. Patterson

1523 New Hampshire Ave., N.W.,

Washington, D.C. 20036

(202) 220-9600

FAX (202) 220-9601

[email protected]

Timothy Chandler

ALLIANCE DEFENSE FUND101 Parkshore Dr, Suite 100

Folsom, CA 95630

(916) 932-2850

[email protected]

Andrew P. Pugno

LAW OFFICES OF ANDREW P.

PUGNO

101 Parkshore Dr, Suite 100Folsom, CA 95630

(916) 608-3065

[email protected]

Benjamin W. Bull

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 N. 90 St.th

Scottsdale, AZ 85260(480) 444-0020

[email protected]

Attorneys for Proposition 8 Official

Proponent Intervenor Defendants

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Edmund G. Brown, Jr.

Attorney General of California

Jonathan K. Renner

Senior Assistant Attorney General

Tamar Pachter

Deputy Attorney General

455 Golden Gate Ave, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5970

[email protected]

Attorneys for Defendant Attorney

General Edmund G. Brown Jr.

Dennis J. HerreraCity Attorney

Therese Stewart

Chief Deputy City Attorney

Danny Chou

Chief of Complex and Special Litigation

Vince Chhabria

Erin Bernstein

Christine Van Aken

Mollie M. LeeDeputy City Attorneys

City and County of San Francisco

Office of the City Attorney

1 Dr. Carlton B. Goodlett Place

Room 234


(415) 554-4708

FAX (415) 554-4699

[email protected]

Attorneys for Intervenor- Plaintiff City

and County of San Francisco

Richard E. Winnie

County Counsel

Claude F. Kolm

Deputy County Counsel

Brian E. Washington

Assistant County Counsel

Lindsey G. Stern

Associate County Counsel

OFFICE OF THE COUNTY

COUNSEL

County of Alameda

1221 Oak St. Suite 450

Oakland , CA 94612

(510)272-6700

[email protected]

Attorneys for Defendant Patrick

OConnell

Elizabeth M. Cortez


Judy W. Whitehurst

Principal Deputy County Counsel

OFFICE OF THE COUNTYCOUNSEL

648 Kenneth Hahn Hall of

Administration

500 W. Temple St.

Los Angeles, CA 90012-2713

(213) 974-1845

[email protected]

Attorneys for Defendant Dean C.

Logan

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Case No. 09-16959

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J.

ZARRILLO, Plaintiffs/Appellees

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 SCOTT, in her official capacity as Deputy

Director of Health Information & Strategic Planning for the California Department of Public

Health; PATRICK OCONNELL, 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.

CAMPAIGN FOR CALIFORNIA FAMILIES, Proposed Intervenor-Defendant/Appellant

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J.

KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; andPROTECTMARRIAGE.COM-YES ON 8, A PROJECT OF CALIFORNIA

RENEWAL, Intervenor-Defendants/Appellees

________________________________________________________________________

Appeal from the United States District Court for the Northern District of California

Honorable Vaughn R. Walker, U.S. District Judge

Case No. CV-09-02292 VRW________________________________________________________________________

DECLARATION OF M ARY E. MCALISTER IN SUPPORT OF

APPELLANTS MOTION TO EXPEDITE ORAL ARGUMENT_________________________________________________________________________

MARY E. MCALISTER

STEPHEN M. CRAMPTON


LIBERTY COUNSEL

P.O. Box 11108Lynchburg, VA 24506

(434) 592-7000 T elephone

(434) 592-7700 Facsimile


MATHEW D. STAVER

ANITA L. STAVER

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

(800)671-1776 Telephone

(407) 875-0770 Facsimile


Attorneys for Appellant Campaign for California Families


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I, Mary E. McAlister, declare as follows:

1. I am an attorney duly licensed to practice law in the State of California and a member

of the bar of this Court. I work for Liberty Counsel, attorney of record for Appellant Campaign for

California Families (the Campaign). I have actual knowledge of the following facts and if called upon

to testify to them could and would do so competently. This Declaration is being offered in support of

the Campaigns Motion to Expedite Oral Argument.

2. On September 15, 2009, I contacted counsel for the other parties in this action and

requested that they inform me of their position regarding this Motion to Expedite. As of the time of the

filing of this Motion, I have heard from the County of Los Angeles and County of Alameda, who have

no position on the motion, and from the Attorney General and Intervenor-Plaintiff City and County of

San Francisco, who indicated tha t they do not object to the motion. As of the date of filing of this motion

I have not received a response from the Plaintiffs/Appellees, Defendant-Intervenors/Appellees or the

Administration Defendants.

3. Attached to this Declaration, marked as Exhibit A and incorporated by reference is a true

and correct copy of the Civil Minute Order issued by Chief Judge Vaughn Walker following the August

19, 2009 hearing and listed as Dkt. # 160 on the Northern District of Californias electronic docket.

4. Attached to this Declaration, marked as Exhibit B and incorporated by reference is a true

and correct copy of the Pretrial Scheduling Order issued by Chief Judge Walker on August 26, 2009

and filed as Dkt #164 on the Northern District of Californias electronic docket.

Executed on September 15, 2009 , at Lynchburg, Virginia.

I declare under penalty of perjury under the laws of the United States of America and State of


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California that the above is true and correct.


Mary E. McAlister


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PROOF OF SERVICE

I am employed at the law firm of Liberty Counsel. I am over the age of 18

and not a party to the within action. My business address is 100 Mountain View

Road, Suite 2775, Lynchburg Virginia 24502.

On September 15, 2009 I electronically filed this document through the

ECF system, which will send a notice of electronic filing to the parties as shown on

the attached SERVICE LIST.

On September 15, 2009, I also sent a copy via electronic mail to all of the

parties listed on the attached SERVICE LIST.

Executed on September 15, 2009, at Lynchburg, Virginia.

I declare under penalty of perjury under the laws of the United States of

America and State of California that the above is true and correct.


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Mary E. McAlister


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SERVICE LIST

Theodore B. OlsonMatthew C. McGillAmir C. TayranitGIBSON, DUNN & CRUTCHER, LLP1050 Connecticut Avenue, NWWashington, D.C. 20036(202) [email protected]

Theodore J. Boutrous, Jr.Christopher D. DusseaultEthan D. DettmerTheane Evangelis KapurEnrique A. Monagas

GIBSON, DUNN & CRUTCHER, LLP333 S. Grand AvenueLos Angeles, CA 90071(213) [email protected]

David BoiesTheodore H. UnoBOIES, SCHILLER & FLEXNER, LLP333 Main StArmonk, NY 10504(914) [email protected]

Attorneys for Plaintiffs

Kenneth C. Mennemeier

Kelcie M. Gosling

Landon D. Bailey

MENNEMEIER, GLASSMAN &

STROUD, LLP

980 9 St, Suite 1700TH

Sacramento, CA 95814-2736

(916) [email protected]

Attorneys for Administration

Defendants

Charles J. Cooper

David H. Thompson

Howard C. Nielson, Jr.

Peter A. Patterson

1523 New Hampshire Ave., N.W.,

Washington, D.C. 20036

(202) 220-9600

FAX (202) 220-9601

[email protected]

Timothy Chandler

ALLIANCE DEFENSE FUND101 Parkshore Dr, Suite 100

Folsom, CA 95630

(916) 932-2850

[email protected]

Andrew P. Pugno

LAW OFFICES OF ANDREW P.

PUGNO

101 Parkshore Dr, Suite 100Folsom, CA 95630

(916) 608-3065

[email protected]

Benjamin W. Bull

Brian W. Raum

James A. Campbell

ALLIANCE DEFENSE FUND

15100 N. 90 St.th

Scottsdale, AZ 85260(480) 444-0020

[email protected]

[email protected]

[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Attorneys for Proposition 8 Official

Proponent Intervenor Defendants

Edmund G. Brown, Jr.

Attorney General of CaliforniaJonathan K. Renner

Senior Assistant Attorney General

Tamar Pachter

Deputy Attorney General

455 Golden Gate Ave, Suite 11000


(415) 703-5970

[email protected]

Attorneys for Defendant AttorneyGeneral Edmund G. Brown Jr.

Dennis J. Herrera

City Attorney

Therese Stewart

Chief Deputy City Attorney

Danny Chou

Chief of Complex and Special Litigation

Vince Chhabria

Erin BernsteinChristine Van Aken

Mollie M. Lee

Deputy City Attorneys


Office of the City Attorney

1 Dr. Carlton B. Goodlett Place

Room 234


(415) 554-4708

FAX (415) 554-4699

[email protected]

Attorneys for Intervenor- Plaintiff


Richard E. Winnie

County Counsel

Claude F. Kolm

Deputy County Counsel

Brian E. Washington


Lindsey G. Stern

Associate County Counsel

OFFICE OF THE COUNTY COUNSEL

County of Alameda

1221 Oak St. Suite 450

Oakland , CA 94612

(510)272-6700

[email protected]

Attorneys for Defendant Patrick

OConnell

Elizabeth M. Cortez


Judy W. Whitehurst

Principal Deputy County Counsel

OFFICE OF THE COUNTY COUNSEL

648 Kenneth Hahn Hall ofAdministration

500 W. Temple St.

Los Angeles, CA 90012-2713

(213) 974-1845

[email protected]

Attorneys for Defendant Dean C.

Logan

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

CIVIL MINUTE ORDER

VAUGHN R. WALKER

United States District Chief Judge

DATE: August 19, 2009

COURTROOM DEPUTY: Cora Klein Court Reporter: Belle Ball

CASE NO. C 09-2292 VRW

CASE TITLE: KRISTIN PERRY et al v. ARNOLD SCHWARNEGGER et al

COUNSEL FOR PLAINTIFFS: PLAINTIFF INTERVENORS:David Boies, Theodore B Olson OurFamily Coalition:

Theodore Boutrous, Christopher Dusseault Shannon P Minter, Christopher Stoll,Theane Kapur, Enrique Monagas James Esseks, Elizabeth Gill,Jeremy Goldman, Theodore Uno Matthew Coles, Jennifer PizerMatthew D McGill

PLAINTIFF INTERVENOR:City and County of San Francisco:

Therese Stewart, Christine Van AkenErin Bernstein, Dennis Herrera

DEFENDANTS:Arnold Schwarzenegger, Mark Horton, Linette Scott:

Kenneth C Mennemeier

Edmund G Brown- Attorney General of California:Gordon Burns, Tamar Pachter

Patrick OConnell - Clerk Recorder for County of Alameda:Claude Kolm, Lindsey Stern

Dean C Logan - Registrar Recorder/County Clerk for the County of Los Angeles:Judy Whitehurst

INTERVENOR DEFENDANTS:Prop 8 Official Proponents and protectmarriage.com:

Charles J CooperDavid H ThompsonCampaign For California Families:Rena Lindevaldsen

Case3:09-cv-02292-VRW Document160 Filed08/19/09 Page1 of 2

Exhibit A


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PROCEEDINGS and RESULTS:

The Court heard argument from counsels and ruled as follows:

1. Motion to intervene as party plaintiffs filed by the Our Family coalition, Doc #79 -denied.

2. Motion for intervention as intervenor-defendant filed by Campaign for CaliforniaFamilies, Doc # 91 - denied.

3. Motion to intervene filed by City and County of San Francisco, Doc #109 - grantedin part to allow San Francisco to present issue of alleged effect on governmentalinterests.

4. Trial setting and scheduling as follows:a. Designation of witnesses presenting evidence under FRE 702, 703 or 705

and production of written reports pursuant to FRCP 26(a)(2)(B): October 2,2009;

b. Dispositive motions to be served and filed so as to be heard on October 14,

2009 at 10 AM;c. Completion of all discovery, except for evidence intended solely to contradictor rebut evidence on the same subject matter identified by another partyunder FRCP 26(a)(2)(B): November 30, 2009;

d. Completion of discovery on the same subject matter identified by anotherparty under FRCP 26(a)(2)(B): December 31, 2009; see FRCP 26(a)(2)(C)(ii);

e. Pretrial conference: December 16, 2009 at 10 AM;f. Trial: January 11, 2010 at 8:30 AM.

5. With respect to any disputes regarding discovery, counsel are directed to comply withCiv LR 37-1(b) and the courts standing order 1.5.

6. In the absence of the assigned judge, counsel are directed to bring any discoverydisputes before Magistrate Judge Joseph C Spero.


Exhibit A


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UnitedStatesDistrictCourt

FortheNorthernDistrictofCalifornia

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, et al.,

Plaintiffs,

vARNOLD SCHWARZENEGGER. et al.,

Defendants.

/

No C 09-2292 VRW

PRETRIAL SCHEDULING ORDER(CIVIL)

Counsel for the parties in the above-entitled action appeared on August 19, 2009 for a

Case Management Conference, pursuant Civil LR 16 and FRCP 16. It was therein determined that:

Expert Disclosure: No testimony pursuant to FRE 701-702 will be permitted unless the partyoffering such testimony has complied with the following: On or before 45 days before trial or, if forthe purpose of rebuttal, 30 days after disclosure by another party, the party has served upon allother parties a complete statement of all opinions or inferences to which the witness is expected totestify and all facts or data upon which the expert relied in forming these opinions or inferences,FRE 705, together with any writings, recordings or photographs used by the expert opinion witnessand a list of all other legal proceedings in which the witness has given testimony or a swornstatement during the preceding five years.

Experts will be bound by the opinions and inferences expressed in their statements and willnot be permitted to offer new matter at trial.

Pretrial Conference: The Court will conduct a Pretrial Conference on December 16, 2009at 10:00 A.M. Trial counsel shall attend this conference.

Trial dates: Trial will begin on January 11, 2010 at 8:30 A.M. in Courtroom 6. Trial shall beconducted in a manner consistent with the undersigned judges Guidelines for the Conduct ofTrials, appended hereto.

NOT LESS THAN TEN DAYS BEFORE THE PRETRIAL CONFERENCE , the following matters shall beaccomplished:

a. Trial memoranda. Counsel shall serve and file trial memoranda, not exceeding fifteen (15)pages.

b. Jury instructions. In cases to be tried to a jury, each party shall serve the court, and all

others, proposed jury instructions on all substantive issues and on any other points notcovered by the court's standard instructions, which may be found in the Ninth CircuitManual of Model Jury Instructions. Instructions shall be brief, clear, written in plain English,free of argument, and shall be organized in logical fashion so as to aid juror comprehension.Standard or form instructions, if used, must be revised to address the particular facts andissues of this case.


Exhibit B


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c. Proposed findings of fact. In non-jury cases, each party shall serve the court, and all othersproposed findings of fact on all material issues. Findings shall be brief, clear, written inplain English and free of pejorative language, conclusions and argument.

d. Exhibits. Each party shall serve all others with one set of all exhibits, charts, schedules,summaries and diagrams and other similar documentary materials to be used at the trial,

together with a complete list of all such exhibits. Voluminous exhibits shall be redacted byelimination of irrelevant portions or use of summaries. FRE 1006. Each item shall bepremarked using the form of mark attached; generally, exhibits of a plaintiff with numbers,exhibits of a defendant with letters. If there is more than one party on a side, each party'sexhibits shall be designated to indicate the party on whose behalf the exhibit is offered.

No exhibits, including damage exhibits, which have not been disclosed as required by thisparagraph will be received at trial. Counsel shall retain copies of their respective exhibitsuntil the conclusion of all proceedings, including appeals and other post-trial proceedings.

e. Witnesses. Each party shall serve all others and file a statement identifying all persons whothe party may call as witnesses and summarizing their testimony. No witnesses notincluded in the statement will be permitted to testify at trial and the testimony of eachwitness will be limited to the matter set forth in the statement.

f. Designation of discovery excerpts. Each party expecting to use discovery excerpts as partof its case in chief shall serve and lodge with the court a statement identifying (1) by witnessand page and line, all deposition testimony and (2) by number and filing date, allinterrogatory answers and requests for admission to be used as part of its direct case. Eachinterrogatory answer intended to be offered as an exhibit shall be copied separately andmarked as an exhibit.

g. Objections to evidence. Each party anticipating making an objection to any testimony orexhibits expected to be offered, or wishing to make a motion in limine, shall serve and file astatement briefly identifying each item objected to and the ground for the objection. Anyresponse to a motion in limine or objection to evidence shall be filed and served five daysbefore the pretrial conference.

h. Jury voir dire and verdict forms. Each party shall submit proposed questions for jury voirdire and a proposed form of verdict at the pretrial conference.

Copies. Each of the foregoing documents filed or lodged with the court must beaccompanied by a copy for use in the judge's chambers. In addition, one copy of the witness andexhibit list should be provided to the court reporter.

Transcripts. If transcripts will be requested during or immediately after the trial,arrangements must be made with the court reporter at least one week before trial commences.

IT IS SO ORDERED.

________________________________Vaughn R WalkerUnited States District Chief Judge


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GUIDELINES FOR THE CONDUCT OF TRIALS

For Trials before the Honorable Vaughn R Walker

These guidelines are provided to trial counsel to facilitate the fair and efficient conduct oftrials in this court and should be accepted in that spirit.

1. Pretrial Submissions and Witness Scheduling.Each party's pretrial statement must identify all witnesses the party expects to call and theexhibits intended to be offered. At least 24 hours beforehand, the party should advise allother parties of the order in which witnesses are expected to be called and the exhibits to beoffered by each witness.

2. Opening Statements/Closing Arguments.

An opening statement is simply an objective summary of what counsel expects the evidenceto show. No argument or discussion of the law is permissible. Opening statements arelimited to fifteen minutes and closing arguments to thirty minutes unless the court expresslygrants leave to exceed these limits. Only one lawyer may open or close for a party and toensure the credibility of opening statements, the lawyer who makes the opening statement

must also make the closing argument.

3. Questioning Witnesses.

a. Conduct the examination from the lectern. Ask permission to approach the witnesswhen necessary and return to the lectern as soon practicable. Treat witnesses withcourtesy and respect; do not become familiar.

b. Ask brief, direct and simply stated questions. Cover one point at a time. Leadingquestions may be used for background or routine matters. Direct examination is nota deposition and should not be conducted like one. Go directly to the point of thewitness's testimony.

c. Cross-examination similarly should consist of brief, simple and clearly stated

questions.

d. Only one lawyer for each party may examine any one witness. This includes anyobjections made during course of trial.

e. Once a witness has been sworn, no lawyer may discuss that witness's testimony withthe witness until the witness has completed testimony and been excused.

4. Using Depositions

a. The deposition of an adverse party may be used for any purpose. Simply identify thedeposition and page and line numbers and read the relevant portion. Opposingcounsel may then ask to read such additional testimony as is necessary to complete

the context, but this request should be made immediately to maintain context. Anunduly belated request may be denied as untimely.

b. The deposition of a witness not a party may be used for impeachment or if thewitness has been shown to be unavailable. For impeachment, allow the witness toread the designated portion first, ask simply whether the witness gave that testimony,


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and then read it. Opposing counsel may immediately read additional testimonynecessary to complete the context.

c. A deposition may also be used to refresh a witness's recollection by showing therelevant part of the deposition to the witness. After showing the witness the priortestimony, ask whether the deposition refreshes recollection. If the answer isaffirmative, ask what the witness now recalls. Do not ask the witness to read fromthe deposition. If the witness says something along the lines of It says here * * *, besure to pin down the witness present recollection. If the witness professes no presentrecollection, pin down what was the witness prior testimony.

d. NOTE: It is the responsibility of counsel anticipating use of a deposition at trial tocheck in advance of trial that the transcript has been made available to the witness forsignature and that the original is delivered to the court by the first day of trial.

5. Objections

a. To make an objection, rise, say "objection" and briefly state the legal ground (e g"hearsay," "privilege," "irrelevant").

b. Do not make a speech or argument, or summarize evidence, or suggest the answer to

the witness.

c. Where an evidentiary problem is anticipated, bring it to the court's attention inadvance to avoid interrupting the orderly process of trial.

6. Exhibits

a. All exhibits must be marked before the trial starts, using the form of label followingthese guidelines. Copies must be provided to opposing counsel and the court beforetrial.

b. When offering an exhibit, follow this procedure to the extent applicable (unlessfoundation has been stipulated):

Request permission to approach the witness;

Show the witness the document and say: I show you [a letter] dated ___, premarkedExhibit ___. Can you identify that document?

Identification having been made, make your offer as follows: I offer Exhibit ___.

NOTE: In some circumstances, of course, additional questions may be necessary tolay the foundation, but be sure you have laid your foundation before offering theexhibit.

c. It is the responsibility of counsel to see that all exhibits to be included in the recordare formally offered and ruled on, and that all of the court's copies of exhibits are inthe hands of the clerk. Take nothing for granted.

7. Interrogatories and Requests for Admission

Counsel wishing to place into the record an interrogatory answer or response to request foradmission should prepare a copy of the particular interrogatory or request andaccompanying response, mark it as an exhibit and offer it. Pleadings and papers in the courtfile are not a part of the trial record unless offered as an exhibit and received into evidence.


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8. Conduct of Trial

a. The court expects counsel and the witnesses to be present and ready to proceedpromptly at the appointed hour normally starting at 8:30 am the first day of trial.A witness on the stand when a recess is taken should be back on the stand when therecess ends.

b. Bench conferences should be minimized. Raise anticipated problems at the start orend of the trial day or during a recess.

c. Have a sufficient number of witnesses available in court to testify so as not run out ofwitnesses. Running out of witnesses may be taken by the court as resting your case.

d. Trials normally are conducted 8:30 am to 4:00 pm Mondays through Fridays withapproximately a one-hour luncheon break. Due to law and motion hearing onThursdays, the trial schedule on that day generally runs from 8:30 am to 12:30 pm. Donot, however, assume that the court will recess on any of those days unless priorarrangements have been made with the court.

e. Counsel are expected to cooperate with each other in the scheduling and production

of witnesses. Witnesses may be taken out of order if necessary. Every effort shouldbe made to avoid calling a witness twice (as an adverse witness and later as a party'switness).

9. Jury Trial

a. When trial is to a jury, counsel should present the case so that the jury can follow it.Witnesses should be instructed to speak clearly and in plain language. Whendocuments play an important part, a means of displaying the documents to the jury iscrucial to juror comprehension. Take advantage of the courts evidence presentationfacilities. If one party augments these facilities, that party must offer the use of theaugmented facilities to all other parties.

b. Jury instructions should be submitted at the pretrial conference but may besupplemented during the trial. Only those dealing with the particular issues in thecase need be presented. Instructions are to be drafted specifically to take into accountthe facts and issues of the particular case, and in plain language; do not submit copiesfrom form books. Do not submit argumentative or formula instructions.

c. Do not offer a stipulation in the presence of the jury unless agreement has previouslybeen reached. Preferably such stipulations should be in writing.

d. In final argument, do not express personal opinions, vouch for your client or askjurors to place themselves in the position of a party, or encourage speculation as topossible consequences of the litigation beyond the evidence presented.

e. Normally, the court will instruct the jury before closing argument. Accordingly, therewill be little need to explain the law in the closing argument although, of course,argument should focus on how the facts as proved or not fit the legal requirements.

\\

10. General Decorum


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a. Colloquy between counsel on the record is not permitted -- all remarks are to beaddressed to the court.

b. Vigorous advocacy does not preclude courtesy to opposing counsel and witnessesand respect for the court. Undue familiarity with witnesses, parties or other lawyers(e g, first names) or the court (e g "Judge" or "Sir") on the record is not appropriate.

c. Do not engage in distracting activity at counsel table or move about the courtroomwhile opposing counsel is arguing or questioning witnesses, or in other ways causedistraction. Neither counsel nor client while at counsel table should indicateapproval, disapproval or other reactions to any testimony or argument.

Revised 12/08


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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF

CALIFORNIA

Case number:

PLTF/DEFT EXHIBIT NO. _____

Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________


CALIFORNIA

Case number:


Date admitted: ________________

By: ___________________________

Case3:09-cv-02292-VRW Document164 Filed08/24/09 Page7 of 7Case: 09-16959 09/15/2009 Page: 7 of 7 ID: 7062728 DktEntry: 8-4

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