3:09-cv-02292 #220

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DEFENDANT-INTERVENORS’ MOTION FOR A STAY OF DISCOVERY PERMITTED BY THE ORDER OF OCTOBER 1, 2009

CASE NO. 09-CV-2292 VRW

COOPER AND KIRK, PLLCCharles J. Cooper (DC Bar No. 248070)*[email protected] H. Thompson (DC Bar No. 450503)*[email protected] C. Nielson, Jr. (DC Bar No. 473018)*[email protected]

Nicole J. Moss (DC Bar No. 472424)*[email protected] Jesse Panuccio (DC Bar No. 981634)* [email protected] Peter A. Patterson (OH Bar No. 0080840)* [email protected] 1523 New Hampshire Ave. N.W., Washington, D.C. 20036Telephone: (202) 220-9600, Facsimile: (202) 220-9601

LAW OFFICES OF ANDREW P. PUGNOAndrew P. Pugno (CA Bar No. 206587)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 608-3065, Facsimile: (916) 608-3066

ALLIANCE DEFENSE FUNDBrian W. Raum (NY Bar No. 2856102)*[email protected] A. Campbell (OH Bar No. 0081501)* [email protected] North 90th Street, Scottsdale, Arizona 85260Telephone: (480) 444-0020, Facsimile: (480) 444-0028

ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,

MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, APROJECT OF CALIFORNIA RENEWAL

* Admitted pro hac vice

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER, PAULT. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs,

v.

ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUND G.

BROWN, JR., in his official capacity as Attorney

General of California; MARK B. HORTON, in hisofficial capacity as Director of the California


DEFENDANT-INTERVENORS’

MOTION FOR A STAY PENDINGAPPEAL AND/OR PETITION FOR

WRIT OF MANDAMUS

Date: January 7, 2010Time: 10:00 a.m.Judge: Chief Judge Vaughn R. WalkerLocation: Courtroom 6, 17th Floor

Case3:09-cv-02292-VRW Document220 Filed10/08/09 Page1 of 7

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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 Departmentof Public Health; PATRICK O’CONNELL, in his

official capacity as Clerk-Recorder for the County

of Alameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for

the County of Los Angeles,

Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; and PROTECTMARRIAGE.COM –YES ON 8, A PROJECT OF CALIFORNIARENEWAL,

Defendant-Intervenors.

Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)

[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)* [email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001Telephone: (202) 393-8690, Facsimile: (202) 347-3622



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1

TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE

NOTICE that on January 7, 2010 at 10:00 a.m., or as soon as the matter may be heard, before the

Honorable Vaughn R. Walker, United States District Court, Northern District of California, 450

Golden Gate Avenue, San Francisco, California, Defendant-Intervenors will move the Court for a stay

pending appeal.1

For the following reasons, Defendant-Intervenors respectfully seek a stay of the discovery

authorized by the Court’s order entered October 1, 2009, Doc # 214, pending resolution of their appeal

and/or petition for writ of mandamus.

The issue to be decided is: Are Defendant-Intervenors entitled to a stay pending appeal?

STATEMENT OF FACTS

On August 21, 2009, Plaintiffs propounded upon Defendant-Intervenors a First Set of

Requests for Production. Doc # 187-3. Defendant-Intervenors object to those Requests (along

with other discovery Plaintiffs have promised to seek) on First Amendment, relevance, and burden

grounds. Accordingly, Defendant-Intervenors filed a motion for a protective order on September

15, 2009. Docs # 187, 197. The Court held a hearing on the motion on September 25, 2009.

On October 1, 2009, the Court issued an order granting in part and denying in part the

motion. Doc # 214. With respect to the relevance and burden objections, the Court granted the

motion in part as it applied to Request No. 8, holding that the Request “is broader than necessary

to obtain all relevant discovery,” and directing Plaintiffs to “revise request no 8 to target those

communications most likely to be relevant.” Id. at 15-16. With respect to the remainder of

Defendant-Intervenors’ relevance and burden objections, the motion was denied. Id. at 17. With

1 We are noticing this motion for January 7, 2010, because it appears that this Court’scalendar is closed until that date. However, we recognize that this motion needs to be resolvedpromptly and will abide by any expedited hearing schedule the Court deems appropriate. Weare also willing to waive a hearing altogether. We would also welcome an expedited briefingschedule. Defendant-Intervenors attempted to reach a stipulation in this regard with Plaintiffs,


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2

respect to Defendant-Intervenors’ claim of First Amendment privilege, the Court denied the

motion. Id. at 17 (“Proponents have not shown that the First Amendment privilege is applicable

to the discovery sought by plaintiffs.”). The court also provided specific guidance on the types of

materials that would be relevant and would, accordingly, have to be produced by Defendant-

Intervenors. See id. at 16-17.

On October 8, Defendant-Intervenors noticed an appeal of the order.2

ARGUMENT

Four factors inform whether a federal court should issue a stay pending appeal: (1) the

appellants’ likelihood of success on the merits; (2) the possibility of irreparable harm absent a

stay; (3) the possibility of substantial injury to other parties if a stay is issued; and (4) the public

interest. See Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)

(citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When applying these four factors, the

Ninth Circuit employs a “sliding scale” approach: the more sharply the equities weigh in favor of

a stay, the less demanding of a showing of likely success on the merits is required. See Natural

Res. Def. Council, Inc. v. Winter , 502 F.3d 859, 862 (9th Cir. 2007), vacated on other grounds by

508 F.3d 885 (9th Cir. 2007); Golden Gate, 512 F.3d at 1116. See id . A consideration of the

factors and analysis identified by the Ninth Circuit demonstrates that Defendant-Intervenors are

entitled to a stay.

but the parties were unable to reach an agreement.2 On October 5, pursuant to this Court’s directive in Doc # 214, Plaintiffs propounded a

revised Document Request No. 8. See Ex. A. Plaintiffs seek “all versions of any documents… that constitute analyses of, or communications related to … campaign strategy inconnection with Prop. 8 … [or] messages to be conveyed to voters regarding Prop. 8.” TheRequest is directed at “those who (1) had any role in managing or directingProtectMarriage.com or the Yes on 8 campaign, or (2) provided advice, counseling,information, or services with respect to efforts to encourage persons to vote for Prop. 8 orotherwise to educate persons about Prop. 8.” Plaintiffs’ other Requests, Doc # 187-3, remainunchanged.


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A. DEFENDANT-INTERVENORS’ ARE LIKELY TO SUCCEED ON THE MERITS3

While the Court has registered its disagreement, Defendant-Intervenors maintain that, for

the reasons enunciated in our motion and reply in support of that motion, Docs # 187-1, 197, we

are likely to succeed in the Ninth Circuit on the merits of our claim of First Amendment privilege.

At a minimum, we have raised “serious legal questions” sufficient to warrant a stay in light of the

irreparable harm and equities weighing “sharply in [our] favor,” as demonstrated below. Golden

Gate, 512 F.3d at 1116.

B. IRREPARABLE HARM IS CERTAIN IN THE ABSENCE OF A STAY

Forcing a litigant to disclose privileged materials necessarily inflicts irreparable harm because

once the materials have been disclosed, it is impossible to “undisclose” them. In re Napster , 479

F.3d at 1088; Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989);

United States v. Amlani, 169 F.3d 1189, 1193 n.4 (9th Cir. 1999); Philip Morris, 314 F.3d at 621-

22. The infringement of “First Amendment freedoms . . . unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); accord Brown v. Cal. DOT , 321

F.3d 1217, 1226 (9th Cir. 2003). Not surprisingly, then, the Ninth Circuit has repeatedly found

that the “fact that the [stay applicant has] raised serious First Amendment questions compels a

3 The collateral order doctrine allows interlocutory review for a “narrow class of decisions that do not terminate the litigation, but are sufficiently important and collateral to themerits that they should nonetheless be treated as final.” Will v. Hallock , 546 U.S. 345, 347(2006) (quotation marks omitted). To be reviewable, a decision must “[1] conclusivelydetermine the disputed question, [2] resolve an important issue completely separate from themerits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Inre: Napster, Inc. Copyright Litig., 479 F.3d 1078, 1088 (9th Cir. 2007) (brackets in original).

The Ninth Circuit has regularly applied the collateral order doctrine to review discovery-related decisions involving claims of privilege, and jurisdiction is equally present here. See,e.g., Bittaker v. Woodford , 331 F.3d 715, 718 (9th Cir. 2003) (en banc) (attorney-clientprivilege); In re Napster , 479 F.3d at 1087-88 (attorney-client privilege); United States v.Griffin, 440 F.3d 1138, 1141 (9th Cir. 2006) (marital privilege); United States v. Austin, 416F.3d 1016, 1020 (9th Cir. 2005) (joint-defense privilege); Agster v. Maricopa County, 422F.3d 836, 838 (9th Cir. 2005) (peer-review privilege involving medical files); Osband v.Woodford , 290 F.3d 1036, 1039-41 (9th Cir. 2002) (protective order involving the attorney-client privilege); Wharton v. Calderon, 127 F.3d 1201, 1203-04 (9th Cir. 1997) (protectiveorder involving the attorney-client privilege); see also United States v. Philip Morris Inc., 314


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finding that there exists the potential for irreparable injury, or that at the very least the balance of

hardships tips sharply in [the stay applicant’s] favor.” Cmty. House, Inc. v. City of Boise, 490

F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted; emphasis added); accord Sammartano

v. First Judicial Dist. Court , 303 F.3d 959, 973 (9th Cir. 2002). Thus, “[t]o establish irreparable

injury in the First Amendment context” a stay applicant “need only demonstrate the existence of a

colorable First Amendment claim.” Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1225 (9th

Cir. 2003) (quotation marks and alterations omitted).

C. OTHER PARTIES WILL NOT BE SUBSTANTIALLY INJURED BY A STAY

The Ninth Circuit has given tailored guidance for balancing harms in the First Amendment

context: where a litigant “raise[s] serious First Amendment questions,” it “compels a finding that

. . . the balance of hardships tips sharply in [that litigant’s] favor.” Cmty. House, Inc., 490 F.3d at

1059 (quotation marks omitted; emphasis added); Sammartano, 303 F.3d at 973. That principle

fully applies here. And even if the Ninth Circuit were to find that the discovery at issue was not

privileged, the most Plaintiffs could claim is a delay in the proceedings below. But “[a] mere

assertion of delay does not constitute substantial harm.” Philip Morris Inc., 314 F.3d at 622.

Moreover, Defendant-Intervenors will seek expedited treatment of their appeal. This Court should

thus conclude that the balance of hardships tips sharply in favor of issuing a stay pending appeal.

D. THE PUBLIC INTEREST WEIGHS IN FAVOR OF A STAY

“Courts . . . have consistently recognized the significant public interest in upholding First

Amendment principles.” Sammartano, 303 F.3d at 974 (listing cases). More particularly, courts

have repeatedly acknowledged that the public interest suffers when core First Amendment rights

of political expression are jeopardized and political participation is chilled. See, e.g., Buckley v.

Valeo, 424 U.S. 1, 71 (1976) (noting that “the public interest . . . suffers” from chilled political

F.3d 612, 617-21 (D.C. Cir. 2003) (attorney-client privilege).


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5

participation); Sammartano, 303 F.3d at 974 (“[T]he public interest is better served by . . .

protecting the core First Amendment right of political expression.”).

Denying this stay and forcing immediate production of the requested documents will

curtail the First Amendment freedoms surrounding voter-initiated measures—a political process

which the Supreme Court has recognized as vitally important in our democratic form of

government. See James v. Valtierra, 402 U.S. 137, 142-43 (1971); McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 347 (1995). We earnestly believe that it will cause future initiative

proponents to censor their speech with campaign volunteers, donors, supporters, and agents, for

fear that their communications will be publicly disclosed in future litigation; it will discourage

supporters from communicating directly with initiative proponents; and it will silence initiative

supporters who want to remain anonymous. These concerns are especially salient where, as here,

the losing side of a hard-fought referendum campaign seeks complete disclosure of the successful

campaign strategy of the winning side, and it does so while preparing for a political “rematch.”

Thus, “the public interest is better served by . . . protecting the core First Amendment right of

political expression,” Sammartano, 303 F.3d at 974, at least until the Court of Appeals has had an

opportunity to consider these important issues on the merits.

CONCLUSION

For the foregoing reasons, the Court should grant this motion for a stay.

Dated: October 8, 2009 COOPER AND KIRK, PLLC

ATTORNEYS FOR DEFENDANTS-INTERVENORS

By: /s/Charles J. Cooper

Charles J. Cooper


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DECLARATION OF JESSE PANUCCIO IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR A STAY PENDING

APPEAL – CASE NO. 09-CV-2292 VRW

COOPER AND KIRK, PLLCCharles J. Cooper (DC Bar No. 248070)*[email protected] H. Thompson (DC Bar No. 450503)*[email protected] C. Nielson, Jr. (DC Bar No. 473018)*[email protected]

Nicole J. Moss (DC Bar No. 472424)*[email protected] Jesse Panuccio (DC Bar No. 981634)* [email protected] Peter A. Patterson (OH Bar No. 0080840)* [email protected] 1523 New Hampshire Ave. N.W., Washington, D.C. 20036Telephone: (202) 220-9600, Facsimile: (202) 220-9601

LAW OFFICES OF ANDREW P. PUGNOAndrew P. Pugno (CA Bar No. 206587)[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 608-3065, Facsimile: (916) 608-3066

ALLIANCE DEFENSE FUNDBrian W. Raum (NY Bar No. 2856102)*[email protected] A. Campbell (OH Bar No. 0081501)* [email protected] North 90th Street, Scottsdale, Arizona 85260Telephone: (480) 444-0020, Facsimile: (480) 444-0028

ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,

MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, APROJECT OF CALIFORNIA RENEWAL


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER, PAULT. KATAMI, and JEFFREY J. ZARRILLO,

Plaintiffs,

v.

ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUND G.

BROWN, JR., in his official capacity as Attorney

General of California; MARK B. HORTON, in hisofficial capacity as Director of the California


DECLARATION OF JESSE

PANUCCIO IN SUPPORT OF

DEFENDANT-INTERVENORS’MOTION FOR A STAY PENDING

APPEAL AND/OR PETITION FOR

WRIT OF MANDAMUS

Date: January 7, 2010Time: 10:00 a.m.Judge: Chief Judge Vaughn R. WalkerLocation: Courtroom 6, 17th Floor

Case3:09-cv-02292-JW Document220-1 Filed10/08/09 Page1 of 6

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DECLARATION OF JESSE PANUCCIO IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR A STAY PENDING

APPEAL – CASE NO. 09-CV-2292 VRW

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 Departmentof Public Health; PATRICK O’CONNELL, in his

official capacity as Clerk-Recorder for the County

of Alameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk for


Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.

JANSSON; and PROTECTMARRIAGE.COM –YES ON 8, A PROJECT OF CALIFORNIARENEWAL,


Additional Counsel for Defendant-Intervenors

ALLIANCE DEFENSE FUNDTimothy Chandler (CA Bar No. 234325)

[email protected] Parkshore Drive, Suite 100, Folsom, California 95630Telephone: (916) 932-2850, Facsimile: (916) 932-2851

Jordan W. Lorence (DC Bar No. 385022)* [email protected] R. Nimocks (TX Bar No. 24002695)*[email protected] G Street NW, Suite 509, Washington, D.C. 20001Telephone: (202) 393-8690, Facsimile: (202) 347-3622



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I, Jesse Panuccio, attorney for Defendant-Intervenors Proposition 8 Proponents Dennis

2 Hollingsworth, Gai l l Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and

3 Proposition 8 Campaign Committee ProtectMarriage.com - Yes on 8, a Project of California

4 Renewal, have personal knowledge of the facts in this declaration, and if called as a witness, I could

5 and would competently testify to these facts under oath:

6 l. Attached hereto as Exhibit A is a true and correct copy of a letter from Plaintiffs'

7 counsel propounding Plaintiffs' revised Document Request # 8.

8

9 Executed on October 8, 2009 at Washington , D.C

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DECLARATION OF JESSE PANUCCIO IN SUPPORT OF DEFENDANT-INTERVENORS' MOTION FOR A STAY PENDING

APPEAL - CASE NO. 09-CV -2292 VR W


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Exhibit A


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GIBSON, DUNN&CRUTCHERLLPLAWYERS

A REGISTERED LIMITED LIABILITY PARTNERSHIP

I N C L U D I N G P R O FE S S IO N A L C O R P O R A T I O N S

Direct Dial

(4 15) 393-8292

Fax No.

(41 5) 374-8444

555 Mission Street, Suite 3000 San Francisco, California 94105-2933

(415) 393-8200

www.gibsondunn.com

October 5,200 9

Client No.

T 36330-00001

VIA ELECTRONIC MAIL

Nicole Jo Moss, Esq.

Cooper & Kirk, PLLC1523 New Hampshire Ave., N. W.Washington, D.C. 20036

Re: Perry , et al. v. Schwarzenegger, et al.,

N.D. Cal. No. C-09-2292 VRW

Dear N icole:

Pursuant to the Court's Order of October 1, 20 09 (see Dkt. #2 14 at pp. 16-17), I have s et

forth below Plaintiffs' revised request for production num ber 8. I am generally available this

week to discuss with you any objections and the scop e of your production in response to thisrevised request. As I mentioned o n our phone call last week , I wou ld like to follow up with you

regarding Defendant-Intervenors' supplemental production in light of the Court's October 1

Order. Please let me know at your earliest convenience when you can discuss these matters.

Revised Request No. 8

The following request is limited to those who (1) had any role in managing o r directingProtectMarriage.com or the Yes o n 8 campa ign, or (2) provided ad vice, counseling, information,

or services with respect to efforts to encourage person s to vote for Prop. 8 or otherwise toeducate persons abo ut Prop. 8 , including its mean ing, intent, effects if enacted, or effects ifrejected; including communications among and between any two or more o f the followingpersons or entities: Defend ant-Intervenors, members of the Ad Hoc Com mittee described at the

September 25,2 00 9 hearing in this matter, Frank Schubert, Jeff Flint, Sonia Eddings B rown,Andrew Pugno, Chip White, Ron Prentice, Cheri Spriggs Hernandez, Rick Ahem , LauraSaucedo Cunningham, Schubert Flint Public Affairs, Law rence Research, Bader & Associates,

Bieber Com munications, Candidates Outdoor Graphic Service Inc., Cardinal Comm unication

LOS ANGELES NEW YORK WA SHING TON , D.C . SAN FRANCISCO PAL0 ALTO LO ND ON

PARIS M UN ICH BRUSSELS DU BAl SINGAPORE O U N C E COUN TY CENTURY CITY DALLAS DENVER


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GIBSON, DU NN 6rCRUTCHERLLP

Nicole Jo Moss, Esq.October 5,2009Page 2

Strategies, Church Communication Network Inc., The Monaco Group, Connell Donatelli,Message Impact Consulting, K Street Communications, Marketing Communications Services,Sterling Corp., and JRM Enterprises.

Please produce all versions of any documents within your possession, custody or controlthat constitute analyses of, or communications related to, one or both of the following topics:(1) campaign strategy in connection with Prop. 8; and (2) messages to be conveyed to votersregarding Prop. 8, without regard to whether the voters or voter groups were viewed as likelysupporters or opponents or undecided about Prop. 8 and without regard to whether the messageswere actually disseminated or merely contemplated.

I look forward to talking with you soon.

cc: All Counsel

100740108~1.DOC


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1CASE NO. 09-CV-2292 VRW

UNITED STATES DISTRICT COURTNORTHERN 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; LINETTESCOTT, 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


Defendants,

and

PROPOSITION 8 OFFICIAL PROPONENTSDENNIS HOLLINGSWORTH, GAIL J.KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.JANSSON; and PROTECTMARRIAGE.COM –YES ON 8, A PROJECT OF CALIFORNIARENEWAL,



[PROPOSED] ORDER GRANTINGDEFENDANT-INTERVENORS’MOTION FOR A STAY PENDINGAPPEAL AND/OR PETITION FORWRIT OF MANDAMUS

IT IS HEREBY ORDERED that for good cause shown, as set forth in Defendant-

Intervenors’ Motion for a Stay Pending Appeal and/or Petition for Writ of Mandamus, that

Defendant-Intervenors’ Motion is GRANTED. IT IS THEREFORE ORDERED that the discovery

authorized by the Court’s October 1, 2009 Order, Doc # 214, is stayed pending resolution of

Case3:09-cv-02292-VRW Document220-2 Filed10/08/09 Page1 of 2

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2

Defendant-Intervenors’ appeal and/or petition for writ of mandamus.

Dated the ________ of _______, 2010 ___________________________________

Chief Judge Vaughn R. Walker

r

Case3:09-cv-02292-VRW Document220-2 Filed10/08/09 Page2 of 2

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